9–30–08 Tuesday Vol. 73 No. 190 Sept. 30, 2008

Pages 56703–56934

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

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Contents Federal Register Vol. 73, No. 190

Tuesday, September 30, 2008

Agriculture Department Defense Science Board; Advisory Committee, 56806 See Farm Service Agency Membership of the Defense Contract Audit Agency Senior See Forest Service Executive Service Performance Review Boards, 56806 RULES Privacy Act; Systems of Records, 56807–56809 Revision of Delegation of Authority, 56705–56706 Senior Executive Service Performance Review Board, 56809

Army Department Energy Department NOTICES See Federal Energy Regulatory Commission Meetings: NOTICES Board of Visitors, United States Military Academy Meetings: (USMA), 56809 Environmental Management Site-Specific Advisory Board, Paducah, 56809–56810 Census Bureau Ultra-Deepwater Advisory Committee, 56810 NOTICES Unconventional Resources Technology Advisory Meetings: Committee, 56810–56811 2010 Census Advisory Committee, 56791 Centers for Medicare & Medicaid Services Environmental Protection Agency See Inspector General Office, Health and Human Services PROPOSED RULES Department State Hazardous Waste Management Program Revision: Idaho, 56775–56779 Children and Families Administration NOTICES NOTICES Agency Information Collection Activities; Proposals, Meetings: Submissions, and Approvals: National Commission on Children and Disasters, 56829– Reporting and Recordkeeping Requirements for 56830 Enforcement Policy Regarding Sale and Use of Aftermarket Catalytic Converters, etc., 56817–56819 Coast Guard Pesticides: RULES Intent to Withdraw Draft PR Notice on Label Statements Transportation Worker Identification Credential Regarding Third-Party Endorsements and Cause Implementation in the Maritime Sector: Marketing, 56819–56824 Hazardous Materials Endorsement for a Commercial Driver’s License, 56730 Executive Office of the President PROPOSED RULES See Presidential Documents Security Zones: Coast Guard Base San Juan, San Juan Harbor, PR, 56773– Farm Credit Administration 56775 NOTICES NOTICES Meetings; Sunshine Act Environmental Assessment; Availability: Farm Credit Administration Board, 56824 Proposed Modernization of the Coast Guard, 56857– 56858 Farm Service Agency Commerce Department PROPOSED RULES Maximum Interest Rates on Guaranteed Farm Loans, See Census Bureau 56754–56756 See Industry and Security Bureau See International Trade Administration See National Institute of Standards and Technology Federal Aviation Administration See National Oceanic and Atmospheric Administration PROPOSED RULES Airworthiness Directives: Comptroller of the Currency 328 Support Services GmbH Dornier Model 328 100 PROPOSED RULES Airplanes, 56763–56765 Minimum Capital Ratios; Capital Adequacy Guidelines; Saab Model SAAB Fairchild SF340A (SAAB/SF340A) Capital Maintenance; Capital: and SAAB 340B Airplanes, 56765–56767 Special Committee 215 Aeronautical Mobile Satellite NOTICES (Route) Services Next Generation Satellite Services Meetings: and Equipment, 56756–56763 Special Committee 215 Aeronautical Mobile Satellite (Route) Services Next Generation Satellite Services Defense Department and Equipment, 56887 See Army Department NOTICES Federal Communications Commission Meetings: RULES Defense Department Advisory Committee on Women in Biennial Regulatory Review of Regulations Administered by the Services (DACOWITS), 56805–56806 the Wireline Competition Bureau; Correction, 56741

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Federal Deposit Insurance Corporation Federal Railroad Administration RULES NOTICES Deposit Insurance Regulations; Revocable Trust Accounts, Petition for Waiver of Compliance, 56888 56706–56712 PROPOSED RULES Federal Reserve System Minimum Capital Ratios; Capital Adequacy Guidelines; PROPOSED RULES Capital Maintenance; Capital: Minimum Capital Ratios; Capital Adequacy Guidelines; Special Committee 215 Aeronautical Mobile Satellite Capital Maintenance; Capital: (Route) Services Next Generation Satellite Services Special Committee 215 Aeronautical Mobile Satellite and Equipment, 56756–56763 (Route) Services Next Generation Satellite Services and Equipment, 56756–56763 Federal Emergency Management Agency NOTICES RULES Change in Bank Control Notices; Acquisition of Shares of Changes in Flood Elevation Determinations, 56737–56738 Bank or Bank Holding Companies, 56827 Suspension of Community Eligibility, 56731–56737 Formations of, Acquisitions by, and Mergers of Bank PROPOSED RULES Holding Companies, 56827 Proposed Flood Elevation Determinations, 56779–56781 NOTICES Federal Transit Administration Disaster Declarations: PROPOSED RULES Arkansas, 56858 Bus Testing; Phase-In of Brake Performance and Emissions Louisiana, 56858–56859 Testing, and Program Updates, 56781–56790 New Hampshire, 56859 NOTICES Capital Investment Program: Availability of Final Circular, Federal Energy Regulatory Commission 56888–56892 NOTICES Grant Management Guidance, 56892–56896 Blanket Authorizations: Third Party Contracting Guidance; Final Circular, 56896– Texas Gas Transmission, LLC, 56811 56918 Combined Notice of Filings, 56811–56813 Environmental Assessment; Intent: for the Proposed Kleen Fish and Wildlife Service Energy Lateral Project NOTICES Kleen Energy Lateral Project; Algonquin Gas Endangered and Threatened Wildlife and Plants: Transmission, LLC, 56813–56815 Initiation of 5-Year Review; Request for Information on FERC Staff Attendance: the Piping Plover (Charadrius Melodus), 56860– California Independent System; Operator Corp., 56815 56862 Filings: Issuance of Permits, 56862–56863 Constellation Energy Commodities Group, Inc., 56815– Receipt of Applications for Permit, 56863–56864 56816 Food and Drug Administration Rumford Power Inc.; Tiverton Power Inc., 56816 NOTICES U.S. Gas and Electric Inc., 56816 Medical Device User Fee and Modernization Act: Western Area Power Administration, 56816–56817 Web Location of 2009 Proposed Guidance Development, 56830–56831 Federal Housing Enterprise Oversight Office Meetings: RULES Antiviral Drugs Advisory Committee, 56831 Assessments, 56712–56715 Forest Service Federal Housing Finance Board NOTICES RULES Meetings: Assessments, 56712–56715 Pacific Southwest Recreation Resource Advisory Committee, 56791 Federal Housing Financing Agency RULES Health and Human Services Department Assessments, 56712–56715 See Children and Families Administration See Food and Drug Administration Federal Law Enforcement Training Center See Health Resources and Services Administration NOTICES See Inspector General Office, Health and Human Services Meetings: Department State and Local Training Advisory Committee, 56859– See National Institutes of Health 56860 NOTICES Agency Information Collection Activities; Proposals, Federal Maritime Commission Submissions, and Approvals, 56827–56829 NOTICES Orders of Investigations and Hearings: Health Resources and Services Administration Possible Violations of 1984 Shipping Act, etc.; City of Los NOTICES Angeles, CA et al., 56824–56827 Meetings: Advisory Committee on Organ Transplantation, 56832 Federal Motor Carrier Safety Administration NOTICES Homeland Security Department Meetings; Sunshine Act, 56887–56888 See Coast Guard

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See Federal Emergency Management Agency National Institutes of Health See Federal Law Enforcement Training Center NOTICES See U.S. Customs and Border Protection Government-Owned Inventions; Availability for Licensing, RULES 56848–56850 Privacy Act; Implementation of Exemptions, 56922–56929 Meetings: NOTICES National Cancer Institute, 56850–56851 Privacy Act; Systems of Records, 56853–56857, 56930– National Institute of Child Health and Human 56934 Development, 56851–56852 National Institute of Diabetes and Digestive and Kidney Housing and Urban Development Department Diseases, 56851 See Federal Housing Enterprise Oversight Office Prospective Grant of an Exclusive License: Histone Deacetylase Inhibitors for the Prevention and Industry and Security Bureau Treatment of Central Nervous System Metastases of NOTICES Extra-CNS Origin Cancers, 56852 Meetings: Materials Processing Equipment Technical Advisory National Oceanic and Atmospheric Administration Committee, 56791–56792 NOTICES National Defense Stockpile Market Impact Committee; Availability of Grant Funds (for Fiscal Year 2009), 56797– Request for Public Comments: 56800 Potential Market Impact of Proposed Stockpile Disposals Incidental Takes of Marine Mammals to Specified for Fiscal Year 2010, 56792–56793 Activities: Revisions to the Unverified List - Guidance as to ‘‘Red Naval Explosive Ordnance Disposal School Training Flags’’ Under Supplement No. 3 to 15 C.F.R. Part 732, Operations at Eglin Air Force Base, FL, 56800–56804 56793–56795 Meetings: General Advisory Committee to the U.S. Section to the Inspector General Office, Health and Human Services Inter-American Tropical Tuna Commission, 56804 Department Mid-Atlantic Fishery Management Council, 56804–56805

NOTICES National Park Service OIG Supplemental Compliance Program Guidance for NOTICES Nursing Facilities, 56832–56848 Meetings: National Capital Memorial Advisory Commission, 56865 Interior Department Nuclear Regulatory Commission See Fish and Wildlife Service NOTICES See Land Management Bureau Application for a Combined License: See National Park Service Exelon Nuclear Texas Holdings, LLC, 56867 See Reclamation Bureau Completion of Remediation at Salmon River Uranium Development Site, Near North Fork, ID, 56867–56868 International Trade Administration NOTICES Office of Federal Housing Enterprise Oversight Initiation of Antidumping and Countervailing Duty See Federal Housing Enterprise Oversight Office Administrative Reviews and Requests for Revocation in Part, 56795–56797 Personnel Management Office NOTICES International Trade Commission Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 56868 Investigations: Hand-Held Meat Tenderizers, 56866–56867 Postal Regulatory Commission NOTICES Land Management Bureau Global Expedited Package Service Contracts, 56868–56869 NOTICES Presidential Documents Meetings: EXECUTIVE ORDERS California Desert District Advisory Council, 56864–56865 Government Agencies and Employees: Spouses of Certain Members of the Armed Forces; Maritime Administration Noncompetitive Appointments in the Civil Service, RULES 56703–56704 Capital Construction Fund, 56738–56741 Reclamation Bureau National Highway Traffic Safety Administration NOTICES RULES Agency Information Collection Activities; Proposals, List of Nonconforming Vehicles Eligible for Importation, Submissions, and Approvals, 56865–56866 56741–56753 Securities and Exchange Commission National Institute of Standards and Technology NOTICES NOTICES Meetings; Sunshine Act, 56869 Meetings: Self-Regulatory Organizations; Proposed Rule Changes: Visiting Committee on Advanced Technology, 56797 American Stock Exchange LLC, 56869–56872

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Financial Industry Regulatory Authority, Inc., 56872– Treasury Department 56876 See Comptroller of the Currency The NASDAQ Stock Market LLC, 56876–56878 See Thrift Supervision Office RULES Small Business Administration Haitian Hemispheric Opportunity Through Partnership NOTICES Encouragement Acts (of 2006 and 2008), 56715–56729 Disaster Declarations: PROPOSED RULES Arkansas, 56878 Terrorism Risk Insurance Programs: Indiana, 56878 Cap on Annual Liability, 56767–56773 NOTICES Meetings: State Department Open Meeting of the President’s Advisory Council on RULES Financial Literacy, 56918 Visas: Documentation of Nonimmigrants Under the Immigration U.S. Customs and Border Protection and Nationality Act, as Amended, 56729–56730 RULES NOTICES Agency Information Collection Activities; Proposals, Haitian Hemispheric Opportunity Through Partnership Submissions, and Approvals Encouragement Acts (of 2006 and 2008), 56715–56729 Department of State Acquisition Regulation (DOSAR), 56878–56879 Veterans Affairs Department Bureau of Consular Affairs; Registration for the Diversity NOTICES Immigrant (DV-2010) Visa Program, 56879–56887 Meetings: Advisory Committee on Women Veterans, 56918–56919 Thrift Supervision Office PROPOSED RULES Minimum Capital Ratios; Capital Adequacy Guidelines; Separate Parts In This Issue Capital Maintenance; Capital: Special Committee 215 Aeronautical Mobile Satellite Part II (Route) Services Next Generation Satellite Services Homeland Security Department, 56922–56934 and Equipment, 56756–56763 NOTICES Appointment of Receiver: Reader Aids Ameribank; Northfork, WV, 56918 Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, Transportation Department and notice of recently enacted public laws. See Federal Aviation Administration See Federal Motor Carrier Safety Administration To subscribe to the Federal Register Table of Contents See Federal Railroad Administration LISTSERV electronic mailing list, go to http:// See Federal Transit Administration listserv.access.gpo.gov and select Online mailing list See Maritime Administration archives, FEDREGTOC-L, Join or leave the list (or change See National Highway Traffic Safety Administration 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 Executive Orders: 13473...... 56703 6 CFR 5 (3 documents) ...... 56922, 56924, 56927 7 CFR 2...... 56705 Proposed Rules: 761...... 56754 762...... 56754 12 CFR 330...... 56706 906...... 56712 1206...... 56712 1701...... 56712 Proposed Rules: 3...... 56756 208...... 56756 225...... 56756 325...... 56756 567...... 56756 14 CFR Proposed Rules: 39 (2 documents) ...... 56763, 56765 19 CFR 10...... 56715 163...... 56715 178...... 56715 22 CFR 41...... 56729 31 CFR Proposed Rules: 50...... 56767 33 CFR 105...... 56730 Proposed Rules: 165...... 56773 40 CFR Proposed Rules: 271...... 56775 44 CFR 64...... 56731 65...... 56737 Proposed Rules: 67...... 56779 46 CFR 390...... 56738 47 CFR 63...... 56741 49 CFR 593...... 56741 Proposed Rules: 665...... 56781

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Federal Register Presidential Documents Vol. 73, No. 190

Tuesday, September 30, 2008

Title 3— Executive Order 13473 of September 25, 2008

The President To Authorize Certain Noncompetitive Appointments in the Civil Service for Spouses of Certain Members of the Armed Forces

By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, it is hereby ordered as follows: Section 1. Policy. It shall be the policy of the United States to provide for the appropriately expedited recruitment and selection of spouses of members of the Armed Forces for appointment to positions in the competitive service of the Federal civil service as part of the effort of the United States to recruit and retain in military service, skilled and experienced members of the Armed Forces and to recognize and honor the service of such members injured, disabled, or killed in connection with their service. Sec. 2. Definitions. As used in this order: (a) the term ‘‘agency’’ has the meaning specified for the term ‘‘executive agency’’ in section 105 of title 5, United States Code, but does not include the Government Accountability Office; (b) the term ‘‘Armed Forces’’ has the meaning specified for that term in section 101 of title 10, United States Code; (c) the term ‘‘active duty’’ means full-time duty in an armed force and includes full-time National Guard duty, except that, for Reserve Component members, the term ‘‘active duty’’ does not include training duties or attend- ance at service schools. (d) the term ‘‘permanent change of station’’ means the assignment, detail, or transfer of a member of the Armed Forces serving at a present permanent duty station to a different permanent duty station under a competent author- ization or order that does not: (i) specify the duty as temporary; (ii) provide for assignment, detail, or transfer, after that different perma- nent duty station, to a further different permanent duty station; or (iii) direct return to the present permanent duty station; and (e) the term ‘‘totally disabled retired or separated member’’ means a member of the Armed Forces who: (i) retired under chapter 61 of title 10, United States Code, with a disability rating at the time of retirement of 100 per cent; or (ii) retired or separated from the Armed Forces and has a disability rating of 100 percent from the Department of Veterans Affairs. Sec. 3. Noncompetitive Appointment Authority. Consistent with the policy set forth in section 1 of this order and such regulations as the Director of the Office of Personnel Management may prescribe, the head of an agency may make a noncompetitive appointment to any position in the competitive service, for which the individual is qualified, of an individual who is: (a) the spouse of a member of the Armed Forces who, as determined by the Secretary of Defense, is performing active duty pursuant to orders that authorize a permanent change of station move, if such spouse relocates to the member’s new permanent duty station; (b) the spouse of a totally disabled retired or separated member of the Armed Forces; or

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(c) the unremarried widow or widower of a member of the Armed Forces killed while performing active duty. Sec. 4. Administrative Provisions. The heads of agencies shall employ, as appropriate, appointment authority available to them, in addition to the authority granted by section 3 of this order, to carry out the policy set forth in section 1. Sec. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) authority granted by law to a department or agency or the head thereof; and (ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative functions. (b) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its agencies, instrumentalities, or entities, its offi- cers, employees, or agents, or any other person.

THE WHITE HOUSE, September 25, 2008

[FR Doc. E8–23125 Filed 9–29–08; 8:45 am] Billing code 3195–01–P

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Rules and Regulations Federal Register Vol. 73, No. 190

Tuesday, September 30, 2008

This section of the FEDERAL REGISTER Law 107–171 established a program for 12866, amended by Executive Order contains regulatory documents having general the procurement of biobased products 13258. In addition, this action is not a applicability and legal effect, most of which by Federal agencies and a voluntary rule as defined by the Regulatory are keyed to and codified in the Code of program for labeling of biobased Flexibility Act, (5 U.S.C. 601 et seq.), Federal Regulations, which is published under products. The Food, Conservation, and and thus, is exempt from the provisions 50 titles pursuant to 44 U.S.C. 1510. Energy Act of 2008, Public Law 110–246 of that Act. Finally, this action is not a The Code of Federal Regulations is sold by continues the biobased markets program rule as defined in the Small Business the Superintendent of Documents. Prices of and adds provisions related to the Regulatory Fairness Enforcement Act, (5 new books are listed in the first FEDERAL program. USDA refers to the program for U.S.C. 801 et seq.), and thus does not REGISTER issue of each week. the Federal procurement of biobased require review by Congress. products and the voluntary program for List of Subjects in 7 CFR Part 2 labeling of biobased products, DEPARTMENT OF AGRICULTURE collectively, as the BioPreferred Authority delegations (government Program (Program). agencies). Office of the Secretary In an effort to make sure the Program ■ Accordingly, 7 CFR part 2 is amended continues to move forward and build as follows: 7 CFR Part 2 demand for biobased products within Revision of Delegation of Authority the Federal government and PART 2—DELEGATIONS OF commercially, management of the AUTHORITY BY THE SECRETARY OF AGENCY: Office of the Secretary, Program has been transferred from AGRICULTURE AND GENERAL Department of Agriculture (USDA). Office of the Chief Economist to OFFICERS OF THE DEPARTMENT ACTION: Final rule. Departmental Administration to enhance and strengthen the Program, as ■ 1. The authority citation for part 2 SUMMARY: This document delegates to well as increase resources for research continues to read as follows: the Assistant Secretary for and analyses of emerging global energy Authority: 7 U.S.C. 6912(a)(1), 5 U.S.C. Administration the authority vested in issues and the necessary economic 301; Reorganization Plan No. 2 of 1953, 3 the Secretary of Agriculture under the analysis of biobased products (that is, CFR, 1949–1953 Comp., p. 1024. National Agriculture Research, market identification, comparative costs Extension, and Teaching Policy Act of with fossil energy derived product Subpart C—Delegations of Authority to 1977 to enter into cooperative alternatives, and supply and demand the Deputy Secretary, the Under agreements and under the Farm Security estimations). Secretaries and Assistant Secretaries and Rural Investment Act of 2002 to Section 1472 of the National ■ implement programs for the Federal Agriculture Research, Extension and 2. Amend § 2.24 to add new procurement and voluntary labeling of Teaching Policy Act of 1977, Public Law paragraphs (a)(7)(i)(J) and (a)(7)(i)(K), to biobased products. It also rescinds the 99–113 (7 U.S.C. 3318), grants the read as follows: delegation of authority to the Chief Secretary of Agriculture the authority to § 2.24 Assistant Secretary for Economist to implement the biobased enter into cooperative agreements with Administration. procurement and voluntary labeling Federal and State agencies and private (a) * * * programs. organizations, to further research, (7) * * * extension, or teaching programs in the DATES: These interim regulations are (i) * * * effective September 30, 2008. Comments food and agricultural sciences of USDA. Because this authority does not extend (J) Implementation of a program for are invited and should be received by the Federal procurement of biobased October 30, 2008. to the Assistant Secretary for Administration, a delegation of the products in consultation with the ADDRESSES: USDA, Departmental Administrators of the Environmental Administration, Room 209–A Whitten Secretary’s authority is necessary. This document sets forth that delegation, as Protection Agency and General Services Building, 1400 Independence Avenue, Administration and the Director, SW., Washington, DC 20250–0103. well as delegations to the Assistant Secretary for Administration relating to National Institute of Standards and FOR FURTHER INFORMATION CONTACT: Mrs. the biobased procurement and labeling Technology; and establishment, in Shana Love, Departmental programs included in the Farm Security consultation with the Administrator of Administration, Room 209–A Whitten and Rural Investment Act of 2002. the Environmental Protection Agency, Building, 1400 Independence Avenue, This rule relates to internal agency of a voluntary ‘‘USDA Certified SW., Washington, DC 20250–0103; management. Therefore, pursuant to 5 Biobased Product’’ labeling program (7 telephone: (202) 205–4008; fax: (202) U.S.C. 553, notice of proposed rule U.S.C. 8102). 720–2191; e-mail: making and opportunity for comment (K) Entering into cooperative [email protected]. Information are not required, and this rule may be agreements to further research programs regarding the BioPreferred Program is made effective less than 30 days after in the food and agricultural sciences, available on the Internet at http:// publication in the Federal Register. related to establishing and www.biopreferred.gov. Further, since this rule relates to implementing Federal biobased SUPPLEMENTARY INFORMATION: Section internal agency management, it is procurement and voluntary biobased 9002 of the Farm Security and Rural exempt from the provisions of Executive labeling programs (7 U.S.C. 3318). Investment Act of 2002 (FSRIA), Public Order 12988 and Executive Order * * * * *

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Subpart D—Delegations of Authority to comments must be received by the FDIC the tens of thousands of deposit Other General Officers and Agency not later than December 1, 2008. insurance inquiries the FDIC has Heads ADDRESSES: You may submit comments received following recent depository by any of the following methods: institution failures. § 2.29 [Amended] • Agency Web Site: http:// ■ Current Rules for Revocable Trust 3. Amend § 2.29 as follows: www.fdic.gov/regulations/laws/federal. Accounts ■ a. Remove paragraph (a)(11)(vii), Follow instructions for submitting ■ b. Redesignate paragraphs (a)(11)(viii) comments on the Agency Web Site. There are two types of revocable trust through (a)(11)(ix) as paragraphs • E-mail: [email protected]. accounts insured under the FDIC’s (a)(11)(vii) through (a)(11)(xiii). Include ‘‘Revocable Trust Accounts’’ in coverage rules: Informal trust accounts Dated: September 24, 2008. the subject line of the message. and formal trust accounts. Informal trust accounts are comprised simply of a Edward T. Schafer, • Mail: Robert E. Feldman, Executive Secretary, Attention: Comments, Federal signature card on which the owner Secretary of Agriculture. designates the beneficiaries to whom the [FR Doc. E8–22959 Filed 9–29–08; 8:45 am] Deposit Insurance Corporation, 550 17th Street, NW., Washington, DC 20429. funds in the account will pass upon the BILLING CODE 3410–93–P • Hand Delivery/Courier: Guard owner’s death. These are the most station at the rear of the 550 17th Street common type of revocable trust Building (located on F Street) on accounts and generally are referred to as FEDERAL DEPOSIT INSURANCE business days between 7 a.m. and 5 p.m. ‘‘payable-on-death’’ (‘‘POD’’) accounts CORPORATION (EST). or in-trust-for (‘‘ITF’’) accounts or • Totten Trust accounts. For purposes of 12 CFR Part 330 Federal eRulemaking Portal: http:// www.regulations.gov. Follow the this rulemaking, we will refer to all RIN 3064–AD33 instructions for submitting comments. informal trust accounts as POD Public Inspection: All comments accounts. The other type of revocable trust Deposit Insurance Regulations; received will be posted without change accounts are accounts established in Revocable Trust Accounts to http://www.fdic.gov/regulations/laws/ connection with formal revocable trusts. federal including any personal AGENCY: Federal Deposit Insurance Formal revocable trusts are trusts information provided. Paper copies of Corporation (FDIC). created for estate planning purposes. public comments may be ordered from ACTION: Interim rule with request for They are often referred to as: living the Public Information Center by comments. trusts, family trusts, marital trusts, telephone at (877) 275–3342 or (703) survivor’s trusts, by-pass trusts, SUMMARY: The FDIC is adopting an 562–2200. generation-skipping trusts, AB trusts or interim rule to simplify and modernize FOR FURTHER INFORMATION CONTACT: special needs trusts. For purposes of its deposit insurance rules for revocable Joseph A. DiNuzzo, Counsel, Legal this rulemaking, we will refer to all trust accounts. The FDIC’s main goal in Division (202) 898–7349; Christopher formal revocable trusts as living trusts. implementing these revisions is to make Hencke, Counsel, Legal Division (202) Like an informal revocable trust, a living the rules easier to understand and 898–8839; James V. Deveney, Section trust is a trust created by an owner (also apply, without decreasing coverage Chief, Deposit Insurance Section, known as a grantor or settlor) over currently available for revocable trust Division of Supervision and Compliance which the owner retains control during account owners. The FDIC believes that (202) 898–6687; or Kathleen G. Nagle, his or her lifetime. Upon the owner’s the interim rule will result in faster Associate Director, Division of death, the trust generally becomes deposit insurance determinations after Supervision and Consumer Protection irrevocable. A living trust is an depository institution closings and will (202) 898–6541, Federal Deposit increasingly popular estate planning help improve public confidence in the Insurance Corporation, Washington, DC tool. Like a POD account, a deposit banking system. The interim rule 20429. account held in connection with a living eliminates the concept of qualifying SUPPLEMENTARY INFORMATION: trust account at an FDIC-insured beneficiaries. Also, for account owners institution is insured under the FDIC’s with revocable trust accounts totaling I. Background coverage rules for revocable trust no more than $500,000, coverage will be One of the FDIC’s fundamental goals accounts. determined without regard to the is to ensure that depositors and insured The FDIC’s rules provide that all beneficial interest of each beneficiary in depository institution employees revocable trust accounts (both POD the trust. understand the FDIC’s deposit accounts and living trust accounts) are Under the new rules, a trust account insurance rules. That goal is essential in insured up to $100,000 per ‘‘qualifying owner with up to five different carrying out the FDIC’s combined beneficiary’’ designated by the owner of beneficiaries named in all his or her mission of helping to maintain public the account.1 revocable trust accounts at one FDIC- If there are multiple confidence and stability in the United owners of a revocable trust account, insured institution will be insured up to States banking system and protecting $100,000 per beneficiary. Revocable coverage is available separately for each insured depositors. owner, per qualifying beneficiary as to trust account owners with more than Despite the FDIC’s efforts to simplify $500,000 and more than five different each owner. Qualifying beneficiaries are deposit insurance rules in recent years, defined as the owner’s spouse, children, beneficiaries named in the trust(s) will there is still significant public and 2 be insured for the greater of either: grandchildren, parents and siblings. industry confusion about the insurance The per-qualifying beneficiary $500,000 or the aggregate amount of all coverage of revocable trust accounts— coverage available on revocable trust the beneficiaries’ interests in the particularly living trust accounts, one of accounts is separate from the insurance trust(s), limited to $100,000 per the two types of revocable trust coverage afforded to depositors in beneficiary. accounts. This continuing confusion DATES: The effective date of the interim about the insurance coverage of 1 12 CFR 330.10. rule is September 26, 2008. Written revocable trust accounts is evidenced by 2 Id. at 330.10(a).

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connection with other accounts they insured under the revocable trust Despite the FDIC’s past efforts to own in other ownership capacities at account category in the FDIC’s coverage simplify and clarify the coverage rules the same insured institution. That rules. Consequently, all funds that a for living trust accounts, confusion and means, for example, if an individual has depositor holds in both living trust uncertainty continue to exist among at the same insured depository accounts and POD accounts naming the bankers and depositors. One reason for institution a single-ownership account same beneficiaries are aggregated for this situation is that living trusts are with a balance of $100,000 and a POD insurance purposes and insured to the becoming increasingly complex. A account (naming at least one qualifying applicable coverage limits. For example, typical living trust is a trust with two beneficiary) with a balance of $100,000, assume a depositor has a living trust grantors, husband and wife, who have both accounts would be insured account for $200,000 in connection with full access to the trust assets during separately for a combined coverage a living trust naming his children, A their lifetimes, with the trust providing amount of $200,000. and B. If the depositor also has a for a life estate interest for the surviving Under our current rules, separate, per- $200,000 POD account naming A and B, spouse upon the death of the first beneficiary insurance coverage is the combined coverage on the two spouse and then providing for a ‘‘family available for revocable trust accounts accounts would be $200,000—not trust’’ (in the form of an irrevocable only if the account satisfies certain $200,000 per account. trust) for designated family members requirements. First, the title of the upon the death of the second spouse. It account must include a term such as Prior Guidance on and Revisions to the is also common for living trusts to POD or ITF or family trust (or similar Revocable Trust Account Coverage provide for lump-sum payments to expression or acronym), evidencing an Rules designated beneficiaries. The FDIC’s intent that the funds shall belong to the Prior to the late 1980s, when living coverage rules for living trust accounts, designated beneficiaries upon the trusts began to emerge, the coverage as the result of the 2004 revisions, in owner’s death. Second, as explained rules for revocable trust accounts were theory are fairly straightforward, but above, each beneficiary must be a easy to understand and apply. applying them to complex living trusts qualifying beneficiary. And third, for Revocable trusts were almost has resulted in significant continuing POD accounts, the beneficiaries must be exclusively in the form of POD confusion and uncertainty among specifically named in the deposit accounts, and the coverage was bankers and depositors. Also, upon an account records of the depository determined based on the number of institution failure, because of the institution. Under the current rules, the qualifying beneficiaries named on the complexities of living trusts, FDIC beneficiaries of a living trust need not signature card used to establish the determinations on the coverage be indicated in the institution’s available to owners of living trust 3 account. In fact, the opening of the POD records. account (solely through the completion accounts are often time consuming; If a revocable trust account owner of the signature card) resulted in the thus, depositors are sometimes delayed names one or more non-qualifying formation of the trust. in receiving their insured funds. beneficiaries in the account (or trust), the funds corresponding to those non- In 1994, as living trusts became II. The Interim Rule qualifying beneficiaries are considered increasingly popular, the FDIC Overview the single-ownership funds of the published guidelines on the insurance 4 The FDIC’s goals in this rulemaking depositor and insured under that coverage of living trust accounts. The are twofold. One is to make the coverage category of coverage. For example, guidelines addressed how the FDIC rules for revocable trust accounts easy to assume a depositor owns a POD account would insure living trust accounts amid understand and easy to apply (in (and no other accounts at the same the complicating factor that many living determining the applicable coverage institution) naming his spouse and a trusts contained clauses tying a amount), without decreasing coverage friend as beneficiaries. The account has beneficiary’s entitlement to the trust currently available for revocable trust a balance of $200,000. The coverage assets to the satisfaction of specified account owners. The other is to retain would be $100,000 under the revocable conditions, known as defeating reasonable limitations on coverage trust coverage rules because he has contingencies. Despite the issuance of levels for revocable trust account named one qualifying beneficiary, and these guidelines, bankers and depositors owners. Under the new rules, a trust $100,000 would be insured under the continued to be confused and uncertain account owner with up to $500,000 in single-ownership coverage rules because about the insurance coverage of living revocable trust accounts at one FDIC- the funds attributable to the non- trust accounts. This confusion and insured institution is insured up to qualifying beneficiary (the friend) uncertainty was understandable, given $100,000 6 per beneficiary. (This is the would be considered the owner’s single- the complex legal theory and analysis rule that will apply to the vast majority ownership funds and thus insured needed to determine the coverage of of revocable trust account owners.) under that category of ownership. If the living trust accounts involving defeating Revocable trust account owners with account owner in this example also has contingencies. In 2004, the FDIC more than $500,000 and more than five a single-ownership account with a simplified the rules for living trust different beneficiaries named in the balance of, say, $50,000, then the accounts by amending the regulations to trust(s) are insured for the greater of $100,000 (attributable to the non- provide coverage for the owners of either: $500,000 or the aggregate amount qualifying beneficiary) from his POD living trust accounts, irrespective of of all the beneficiaries’ interests in the account would be added to the funds defeating contingencies in the trust. The held in the single-ownership account FDIC’s objectives behind this 6 Technically, as reflected in the regulatory text, and be insured to a limit of $100,000. rulemaking were to simplify the existing this limitation is the Standard Maximum Deposit Thus, $50,000 would be uninsured. rules and to provide coverage for living Insurance Amount (‘‘SMDIA’’), currently $100,000. As explained above, both POD trust accounts similar to POD account Thus, the coverage would automatically reflect any accounts and living trust accounts are coverage.5 future inflation adjustments to the SMDIA consistent with section 11(a)(1)(F) of the FDI Act, types of revocable trust accounts 12 U.S.C. 1821(a)(1)(F). For ease of reference, 4 FDIC Advisory Opinion 94–32 (May 14, 1994). throughout this notice we will use $100,000 as the 3 Id. at 330.10(a) & (b). 5 69 FR 2825, 2827 (Jan. 21, 2004). basic coverage amount.

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trust(s), limited to $100,000 per was to recognize other family members trust that, for example, provides either beneficiary. likely to be named in a person’s varying lump-sum payments for Under the interim rule, coverage is revocable trust. The objective was to designated beneficiaries or different based on the existence of any prevent depositors from losing money in percentage interests in trust assets to beneficiary named in the revocable an institution failure because of their certain beneficiaries, or different trust, as long as the beneficiary is a misunderstanding of the coverage rules remainder interests in the assets to the natural person, or a charity or other for revocable trust accounts.12 same or other beneficiaries. The method non-profit organization.7 As discussed Before and since the 1999 expansion for determining coverage in some below, under the interim rule the of the definition of qualifying situations involving unequal beneficial concept of ‘‘qualifying beneficiaries’’ is beneficiaries, depositors, consumer interests necessitates the formulation eliminated. For an account owner with groups and bankers have questioned the and solving of simultaneous equations. combined revocable trust account fairness of limiting the coverage on Consumers and bankers alike find balances of $500,000 8 or less, the revocable trust accounts to the naming applying the current revocable trust maximum available coverage would be of certain beneficiaries. Many have account rules to complicated living determined simply by multiplying the argued that the FDIC should expand the trusts, especially ones involving number of beneficiaries by $100,000. definition of qualifying beneficiaries to unequal beneficial interests, far too A living trust account with a balance include, among others, an account complex. The FDIC agrees. Therefore, a of $400,000, for example, would be holder’s nieces and nephew, in-laws, key component of the interim rule is the insured for up to $400,000 as long as great-grandchildren, cousins, friends ability to determine coverage available there are at least four beneficiaries and charities. Historically, the FDIC’s to account owners without regard to named in the trust.9 Different response to such complaints has been unequal interests of the beneficiaries proportional ownership interests of the that there must be a reasonable named in the revocable trust(s). The beneficiaries in the trust assets would limitation of the amount of coverage FDIC believes this rule change, coupled not affect the deposit insurance available on revocable trust accounts; with the recognition of all beneficiaries, coverage. So, in this example, the otherwise, there would be potentially will make the revocable trust account maximum coverage would be $400,000 unlimited coverage under this account rules simpler and more transparent. even if the trust provided that category. Hence, the FDIC has been beneficiaries A and B are entitled to reluctant to amend the rules to provide Retaining Current Coverage Levels for twenty percent each of the trust assets coverage based on any beneficiary(ies) Account Owners With More Than and beneficiaries C and D are entitled to named in a revocable trust. Under the $500,000 in Revocable Trust Accounts thirty percent each of the trust assets. As interim rule, however, the FDIC believes and More Than Five Beneficiaries under the current rules, however, a that it can achieve greater fairness under Named in the Trusts(s) depositor would receive a combined the revocable trust rules by basing Based on our experience at recent maximum coverage amount of $100,000 coverage on the naming of any institution failures, the FDIC believes for the same beneficiary named in more beneficiary in a revocable trust, but that the vast majority of revocable trust than one revocable trust account he or concurrently imposing coverage account owners have less than $500,000 she owns at one insured institution.10 qualifications (discussed below) on in revocable trust accounts at one FDIC- insured institution. Thus, under the Eliminating the Concept of ‘‘Qualifying accounts over $500,000. In addition to addressing the fairness interim rule coverage for an account Beneficiaries’’ issue, eliminating the concept of owner’s revocable trust accounts will be As explained above, currently ‘‘qualifying beneficiaries’’ makes the determined simply by multiplying the revocable trust account coverage is coverage rules easier to understand. number of different beneficiaries named based, in large part, on the number of Depositors and bankers no longer need in the trust(s) by $100,000. qualifying beneficiaries named in the to know who is a qualifying beneficiary In order to retain reasonable limits on trust. Qualifying beneficiaries are and who is not. Also, this revision will the maximum coverage available to defined as the revocable trust account obviate the need for FDIC claims agents, revocable trust account owners and also owner’s spouse, children, upon an institution’s failure, to confirm to retain the coverage available to grandchildren, parents and siblings.11 that a beneficiary named in a revocable revocable trust account owners under Prior to 1999, the definition included trust account is a qualifying beneficiary. the current coverage rules, the interim only the owner’s spouse, children and Thus, under the interim rule, the FDIC rule provides special treatment for grandchildren. The FDIC’s rationale in anticipates being able to make quicker depositors with revocable trust accounts 1999 for expanding the definition of deposit insurance determinations on over $500,000 naming more than five qualifying beneficiaries to include the revocable trust accounts at institution beneficiaries. Under the interim rule, account owner’s parents and siblings failures. revocable trust account owners with more than $500,000 and more than five 7 If in establishing a POD account, the owner For Accounts With Aggregate Balances beneficiaries named in the trusts are names a living trust as the beneficiary, we will of $500,000 or Less, Determining insured for the greater of either: consider the beneficiaries of the trust to be the Coverage Without the Necessity of $500,000 or the aggregate amount of all beneficiaries of the POD account. Discerning Each Beneficiary’s Interest in 8 Technically, this amount is fives times the the beneficiaries’ interests in the SMDIA. the Trust(s) trusts(s), limited to $100,000 per 9 This assumes the account owner has no other One of the most confusing and beneficiary. This coverage is no less revocable trust accounts at the same depository than the coverage afforded to such institution. complex aspects of determining 10 For example, if a depositor has a POD account revocable trust account coverage under account owners under the current rules, naming her son as a beneficiary and a living trust the current rules is having to discern particularly because under the interim account at the same bank naming the same son as and consider unequal beneficial rule the coverage is based on the a beneficiary, the depositor would be entitled to no interests in revocable trusts. This issue number of beneficiaries, not the number more than $100,000 with respect to having named her son a beneficiary of her revocable trust typically arises in the context of a living of qualifying beneficiaries. Also, as accounts. discussed below, under the interim rule 11 12 CFR 330.10(a). 12 64 FR 15657 (Apr. 1, 1999). life-estate interest holders are deemed to

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have a $100,000 interest in the trust have an equal interest in the trust assets $300,000—1 grantor times 3 assets. for deposit insurance purposes.13 This beneficiaries times $100,000. Also For example, assume an individual rule has proven difficult to apply, under the current rules, upon the has a living trust account. The living especially where the living trust grantor’s death (allowing for the six- trust provides a life estate interest for provides for lump-sum gifts for certain month grace period during which that individual’s spouse, $15,000 for his beneficiaries, life estate interests for coverage would remain the same), the college, $5,000 for each of three brothers others and different percentage interests coverage reduces to $100,000 (if none of and the remaining amount to his friend. for the remainder-men, who may be the the beneficiaries has graduated from The balance in the account is $600,000. same as or different from the other college yet) because of the contingent Here the account balance exceeds beneficiaries. In order to simplify the nature of the beneficial interests $500,000 and the number of coverage rules, the interim rule revises provided for in the trust. Under the beneficiaries is more than five. Hence, the current valuation method for life interim rule, contingencies would under the interim rule, the maximum estate interests by deeming each such continue to be irrelevant for coverage coverage would be the greater of either: interest to be $100,000, for purposes of purposes after the grantor’s death, even $500,000 or the aggregate beneficial determining deposit insurance coverage. though the trust has evolved into an interests of all the beneficiaries (up to a The example above (involving a trust irrevocable trust. In this example, under limit of $100,000 per beneficiary). The providing for a spousal life estate beneficial interests are: $100,000 for the the interim rule the coverage would still interest and bequests to the owner’s be up to $300,000. spouse’s life estate interest, $15,000 for college, brothers and friend) the college, $5,000 for each brother demonstrates how the interim rule The FDIC believes that the continuity (totaling $15,000), and $100,000 for the would apply to a living trust providing of coverage provided for under this friend (because of the per-beneficiary for a life-estate interest. component of the interim rule would limitation of $100,000). The total greatly simplify the current rules for beneficial interests, thus, would be Treatment of Irrevocable Trusts determining coverage for living trust $230,000. Hence, the maximum Springing From a Revocable Trust accounts. It is important to note, coverage afforded to the account owner Another current complexity in however, that under the interim rule the would be $500,000, the greater of determining coverage for living trust coverage on a living trust account could $500,000 or $230,000. accounts is that, when it is created, a still change during the lifecycle of the The FDIC believes that basing the living trust is a revocable trust but, trust. For example, when both grantors coverage of trust accounts over $500,000 when the owner dies, the trust becomes in a co-grantor trust are alive, the (with more than five different irrevocable.14 At that stage in the maximum coverage on the account beneficiaries in the trust(s)) on the lifecycle of the living trust, the funds would be $1,000,000, because the ownership interest of each beneficiary corresponding to the irrevocable trust formula for determining coverage would named in the applicable trust(s) would are insured under the FDIC’s rules for be: 2 (grantors) times 5 beneficiaries prevent the potential of providing irrevocable trust accounts.15 Under times $100,000.16 If one of the grantors unlimited coverage with respect to those rules, coverage is based on the dies, then the maximum coverage would revocable trust accounts. Without such non-contingent interest of each be 1 (grantor) times 5 beneficiaries times a limitation, an account owner could beneficiary named in the trust. In effect, $100,000.17 Coverage would likewise name a limitless number of beneficiaries when a living trust evolves from a decrease if one or more of the each with a nominal interest in the trust revocable trust to an irrevocable trust beneficiaries named in the revocable and obtain coverage up to $100,000 for the insurance coverage available on the trust died, assuming the death of the naming each such beneficiary. For account is based on a different set of beneficiary(ies) would cause the total example, a revocable trust account held rules—the irrevocable trust account number of beneficiaries to drop below in connection with a trust entitling one rules. As such, the coverage on the five. beneficiary to $1 million and entitling account often decreases from what it each of nine other beneficiaries to $1 had been when the trust was insured Impact of Proposed Rules on the Deposit would be insured for $1 million, solely under the revocable trust rules. Insurance Fund Reserve Ratio without the limitation imposed under To eliminate this complexity and the the interim rule. Eliminating the concept of qualifying confusion it generates, under the beneficiaries and disregarding unequal Treatment of Life-Estate Interests interim rule, the rules for determining interests in a trust (for accounts with Another complicating factor in the coverage of the living trust account five or fewer beneficiaries) theoretically determining the coverage for living trust will remain the same when the trust (or will increase coverage immediately. accounts is determining the value of life part of the trust) converts to an Since no industry-wide data are estate interests. A life estate interest irrevocable trust. For example, a grantor maintained on trust accounts, a definite usually means the life-estate beneficiary has a living trust account held in determination of the extent of this effect connection with a trust naming three is entitled to the income on the trust on insurance coverage for existing beneficiaries, each of whom receives a assets during his or her lifetime. A large accounts is difficult. Thus, the precise specified share of the trust assets if he percentage of living trusts provide a life effect the proposal will immediately or she graduates from college by age 25. estate interest for one or more have on the Deposit Insurance Fund Under the current insurance rules, when beneficiaries. The most typical situation (‘‘DIF’’) reserve ratio can be estimated, is where a married person creates a trust the grantor is alive (meaning that the trust is still a revocable trust) the providing a life estate interest for his or 16 This assumes neither grantor has any other her surviving spouse and a remainder maximum coverage on the account is revocable trust accounts at the same insured interest for their children. The FDIC’s institution. 13 current rules provide that, in such 12 CFR 330.10(f)(3). 17 Of course, the FDIC rules provide for a six- 14 For jointly owned living trusts, upon the death month grace period after the death of an account situations, each life-estate holder and of one of the owners, typically part of the trust owner during which the coverage would be the each remainder-man (also known as remains revocable and part becomes irrevocable. same as if the owner (grantor) were still alive. 12 residuary beneficiaries) is deemed to 15 12 CRR 330.13. CFR 330.3(j).

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as discussed below, but cannot be misunderstand the insurance rules for has been submitted to the Office of determined with precision.18 revocable trust accounts. The interim Management and Budget for review. In fifteen failures from 1999 to 2003 rule simplifies and modernizes the V. Regulatory Flexibility Act and three failures from the past year for coverage rules for revocable trust which final insurance determinations accounts and, hence, will provide The Regulatory Flexibility Act have been made, approximately ninety- greater certainty to depositors and requires an agency that is issuing a final seven percent of the funds in revocable depository institution employees about rule to prepare and make available a trust accounts were insured on average the extent to which revocable trust regulatory flexibility analysis that and approximately twenty-five percent accounts are insured. describes the impact of the final rule on of domestic deposits were in revocable Importantly, under the interim rule, small entities. 5 U.S.C. 603(a). The trust accounts on average. If conclusions no depositor will be insured for an Regulatory Flexibility Act provides that from these eighteen failed institutions amount less than he or she would have an agency is not required to prepare and can be generalized to the banking been entitled to under the current publish a regulatory flexibility analysis industry as a whole, then, even if all revocable trust account rules. Some if the agency certifies that the final rule current revocable trust deposits were to depositors will be entitled to greater will not have a significant economic become insured, the effect on total coverage under the interim rule than impact on a substantial number of small insured deposits and on the DIF reserve under the current rules, especially entities. ratio would be small. Recognizing that because under the interim rule a Pursuant to section 605(b) of the this data does not provide a strong beneficiary need no longer be a statistical basis for drawing conclusions, Regulatory Flexibility Act, the FDIC qualifying beneficiary for the account certifies that the interim rule will not we welcome comments on the effect of owner to be insured on a per-beneficiary the interim rule on the level of insured have a significant impact on a basis. Moreover, the FDIC believes that substantial number of small entities. deposits. the interim rule will result in faster In the long-term, eliminating the The interim rule simplifies the deposit deposit insurance determinations after insurance rules for revocable trust concept of qualifying beneficiaries depository institution closings and will could bring more insured deposits into accounts held at FDIC-insured help improve public confidence in the depository institutions. the system. For example, since, under banking system. the interim rule, nieces and nephews For these reasons, the FDIC has VI. The Treasury and General are eligible beneficiaries, a depositor determined that the public notice and Government Appropriations Act, might add her niece and nephew to a participation that ordinarily are 1999—Assessment of Federal trust account that previously had only a required by the APA before a regulation Regulations and Policies on Families sister as the sole beneficiary. may take effect would, in this case, be Anticipating future moves by depositors contrary to the public interest and that The FDIC has determined that the is even more difficult than estimating good cause exists for waiving the proposed rule would not affect family the immediate effect on deposit customary 30-day delayed effective well-being within the meaning of insurance coverage. Thus, the long-term date. Nevertheless, the FDIC desires to section 654 of the Treasury and General effect of the interim rule on insured have the benefit of public comment Government Appropriations Act, deposits and on the reserve ratio is even before adopting a permanent final rule enacted as part of the Omnibus more uncertain, beyond the conclusion and thus invites interested parties to Consolidated and Emergency that over time the change can be submit comments during a 60-day Supplemental Appropriations Act of expected to lower the reserve ratio to comment period. In adopting the final 1999 (Pub. L. 105–277, 112 Stat. 2681). some (likely limited) degree. regulation, the FDIC will revise the The interim should have a positive effect on families by clarifying the Effective Date of the Interim Rule interim rule, if appropriate, in light of the comments received on the interim coverage rules for revocable trust The interim rule is effective on rule. accounts, a popular type of consumer September 26, 2008, the date on which bank account. the FDIC Board of Directors approved III. Request for Comments VII. Small Business Regulatory the interim rule. It is also the date this The FDIC requests comments on all Enforcement Fairness Act interim rule was filed for public aspects of the proposed rulemaking. We inspection with the Office of the Federal solicit specific comments on: (1) The Office of Management and Budget Register. In this regard, the FDIC Whether ‘‘over $500,000’’ is the proper has determined that the interim rule is invokes the good cause exception to the threshold for determining coverage for not a ‘‘major rule’’ within the meaning requirements in the Administrative of the relevant sections of the Small 19 revocable trust account owners based on Procedure Act (‘‘APA’’) that, before a the beneficial interests of the trust Business Regulatory Enforcement Act of rulemaking can be finalized, it must first beneficiaries; (2) whether the FDIC’s 1996 (‘‘SBREFA’’) (5 U.S.C. 801 et seq.). be issued for public comment and, once irrevocable trust account rules should As required by SBREFA, the FDIC will finalized, must have a delayed effective be revised so that all trusts are covered file the appropriate reports with date of thirty days from the publication by substantially the same rules; and (3) Congress and the General Accounting date. The FDIC believes good cause what effect the interim rule will have on Office so that the interim rule may be exists for making the interim rule the level of insured deposits. reviewed. effective immediately because, based on recent depository institution failures, it IV. Paperwork Reduction Act VIII. Plain Language is evident that many depositors and The interim rule will revise the The FDIC has sought to present the depository institution employees FDIC’s deposit insurance regulations. It interim rule in a simple and will not involve any new collections of straightforward manner. The FDIC 18 The reserve ratio is determined by dividing the DIF fund balance by the estimated insured deposits information pursuant to the Paperwork invites comment on whether it could by the industry (12 U.S.C. 1817(l)). Reduction Act (44 U.S.C. 3501 et seq.). take additional steps to make the rule 19 5 U.S.C. 553. Consequently, no information collection easier to understand.

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List of Subjects in 12 CFR Part 330 account, does not increase the total over $500,000 (which is five times the Bank deposit insurance, Banks, coverage amount.) current SMDIA of $100,000) and there banking, Reporting and recordkeeping (b) Required intention. The required are more than five different beneficiaries requirements, Savings and loan intention in paragraph (a) of this section named in the trust, the maximum that upon the owner’s death the funds associations, Trusts and trustees. coverage available to A would be the shall belong to one or more beneficiaries greater of: $500,000 or the aggregate of ■ For the reasons stated above, the must be manifested in the title of the each different beneficiary’s interest to a Board of Directors of the Federal account using commonly accepted limit of $100,000 per beneficiary. The Deposit Insurance Corporation amends terms such as, but not limited to, in trust beneficial interests in the trust part 330 of chapter III of title 12 of the for, as trustee for, payable-on-death to, considered for purposes of determining Code of Federal Regulations as follows: or any acronym therefore. In addition, coverage are: $50,000 for each of the PART 330—DEPOSIT INSURANCE for informal revocable trust accounts, children (totaling $150,000), $5,000 for COVERAGE the beneficiaries must be specifically the friend, $70,000 for the charity, and named in the deposit account records of $100,000 for the spouse ($375,000, ■ 1. The authority citation for part 330 the insured depository institution. The subject to the $100,000 limit per continues to read as follows: settlor of a revocable trust shall be beneficiary). The aggregate beneficial Authority: 12 U.S.C. 1813(l), 1813(m), presumed to own the funds deposited interests, thus, are $325,000. Hence, the 1817(i), 1818(q), 1819 (Tenth), 1820(f), into the account. maximum coverage afforded to the 1821(a), 1822(c). (c) Definition of beneficiary. For account owner would be $500,000, the purposes of this section, a beneficiary greater of $500,000 or $325,000.) ■ 2. Section 330.10 is revised to read as includes natural persons as well as (f) Joint revocable trust accounts. (1) follows: charitable organizations and other non- Where an account described in § 330.10 Revocable trust accounts. profit entities recognized as such under the Internal Revenue Code of 1986. paragraph (a) of this section is (a) General rule. Except as provided in (d) Interests of beneficiaries outside established by more than one owner, the paragraph (e) of this section, the funds the definition of beneficiary in this respective interest of each account owned by an individual and deposited section. If a beneficiary named in a trust owner (which shall be deemed equal) into one or more accounts with respect covered by this section does not meet shall be insured separately, per different to which the owner evidences an the definition of beneficiary in beneficiary, up to the SMDIA, subject to intention that upon his or her death the paragraph (c) of this section, the funds the limitation imposed in paragraph (e) funds shall belong to one or more corresponding to that beneficiary shall of this section. (Example 1: A & B, two beneficiaries shall be separately insured be treated as the individually owned individuals, establish a payable-on- (from other types of accounts the owner (single ownership) funds of the death account naming their three nieces has at the same insured depository owner(s). As such, they shall be as beneficiaries. Neither A nor B has any institution) in an amount equal to the aggregated with any other single other revocable trust accounts at the total number of different beneficiaries ownership accounts of such owner(s) same FDIC-insured institution. The named in the account(s) multiplied by and insured up to the SMDIA per maximum coverage afforded to A&B the SMDIA. This section applies to all owner. (Example: If an individual would be $600,000, determined by accounts held in connection with establishes an account payable-on-death multiplying the number of owners (2) informal and formal testamentary to a pet, the account would be insured times the SMDIA (currently $100,000) revocable trusts. Such informal trusts as a single-ownership account.) times the number of different are commonly referred to as payable-on- (e) Revocable trust accounts with beneficiaries (3). In this example, A death accounts, in-trust-for accounts or aggregate balances exceeding five times would be entitled to revocable trust Totten Trust accounts, and such formal the SMDIA and naming more than five coverage of $300,000 and B would be trusts are commonly referred to as living different beneficiaries. Notwithstanding entitled to revocable trust coverage of trusts or family trusts. (Example 1: An the general coverage provisions in $300,000. Example 2: A and B, two individual has a living trust account paragraph (a) of this section, for funds individuals, establish a payable-on- with four beneficiaries named in the owned by an individual in one or more death account naming their two trust. The account owner has no other revocable trust accounts naming more children, two cousins and a charity as revocable trust accounts at the same than five different beneficiaries and beneficiaries. The balance in the FDIC-insured institution. The maximum whose aggregate balance is more than account is $700,000. Neither A nor B insurance coverage would be $400,000, five times the SMDIA, the maximum has any other revocable trust accounts at determined by multiplying 4 (the revocable trust account coverage for the the same FDIC-insured institution. The number of beneficiaries) times $100,000 account owner shall be the greater of maximum coverage would be (the current SMDIA). Example 2: An either: five times the SMDIA or the determined (under paragraph (a) of this individual has a payable-on-death aggregate amount of the ownership section) by multiplying the number of account naming his niece and cousin as interests of each different beneficiary account owners (2) times the number of beneficiaries and, at the same FDIC- named in the trusts, to a limit of the different beneficiaries (5) times insured institution, has another payable- SMDIA per different beneficiary. $100,000, or $1 million. Because the on-death account naming the same (Example: A has a living trust account account balance is less than the niece and a friend as beneficiaries. The with a balance of $600,000. Under the maximum coverage amount, the account maximum coverage available to the terms of the trust, upon A’s death, A’s would be fully insured. Example 3: A account owner would be $300,000. This three children are each entitled to and B, two individuals, establish a is because the account owner has named $50,000, A’s friend is entitled to $5,000 living trust account with a balance of three different beneficiaries in the and a designated charity is entitled to $1.5 million. Under the terms of the revocable trust accounts. The naming of $70,000. The trust also provides that the trust, upon the death of both A & B, the same beneficiary in more than one remainder of the trust assets shall each of A & B’s three children is entitled revocable trust account, whether it be a belong to A’s spouse. In this case, to $200,000, B’s cousin is entitled to payable-on-death account or living trust because the balance of the account is $150,000, A’s friend is entitled to

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$30,000 and the remaining amount they are joint grantors. If upon the death Officer (FHFB), (202) 408–2878; Janice ($720,000) goes to a charity. Under of either A or B the trust transforms into A. Kaye, Associate General Counsel paragraph (e) of this section, the an irrevocable trust as to the deceased (FHFB), (202) 408–2505 (not toll free maximum coverage, as to each joint grantor’s ownership in the trust, the numbers), Fourth Floor, 1700 G Street, account owner, would be the greater of account will continue to be insured NW., Washington DC 20552. The $500,000 or the aggregate amount (as to under the provisions of this section.) telephone number for the each joint owner) of the interest of each (i) This section shall be effective as of Telecommunications Device for the Deaf different beneficiary named in the trust, September 26, 2008 for all existing and is (800) 877–8339. to a limit of $100,000 per account owner future revocable trust accounts and for SUPPLEMENTARY INFORMATION: per beneficiary. The beneficial interests existing and future irrevocable trust in the trust considered for purposes of accounts resulting from formal I. Background determining coverage for account owner revocable trust accounts. On July 30, 2008, the President signed A are: $300,000 for the children (three Dated at Washington DC, this 26th day of the Federal Housing Finance Regulatory times $100,000), $75,000 for the cousin, September 2008. Reform Act of 2008 (Act) (Pub. L. 110– $15,000 for the friend and $100,000 for By order of the Board of Directors. 289, 122 Stat. 2564). Among other things, the Act transferred the the charity ($360,000 subject to the Federal Deposit Insurance Corporation. $100,000 per-beneficiary limitation). As supervisory and oversight Robert E. Feldman, to A, the aggregate amount of the responsibilities over the Banks, Fannie beneficial interests eligible for deposit Executive Secretary. Mae, and Freddie Mac to a new insurance coverage, thus, is $490,000. [FR Doc. E8–23058 Filed 9–26–08; 4:15 pm] independent executive branch agency Hence, the maximum coverage afforded BILLING CODE 6714–01–P known as the Federal Housing Finance to joint account owner A would be Agency. To fund the operations of the $500,000, the greater of $500,000 or FHFA, the Act amended section 1316 of $490,000 (the aggregate of all the FEDERAL HOUSING FINANCE BOARD the Federal Housing Enterprises beneficial interests attributable to A, Financial Safety and Soundness Act of limited to $100,000 per beneficiary). 12 CFR Part 906 1992 (Safety and Soundness Act), The same analysis and coverage codified at 12 U.S.C. 4516. The Act also determination also would apply to B. FEDERAL HOUSING FINANCE removed the provisions of section 38 of (2) Notwithstanding paragraph (f)(1) AGENCY the Federal Home Loan Bank Act, which of this section, where the owners of a were codified at 12 U.S.C. 1438(b), that joint revocable trust account are 12 CFR Part 1206 had authorized the Federal Housing themselves the sole beneficiaries of the Finance Board (FHFB) to impose corresponding trust, the account shall DEPARTMENT OF HOUSING AND assessments on the Banks in an amount be insured as a joint account under URBAN DEVELOPMENT sufficient to provide for the payment of section 330.9 and shall not be insured the FHFB’s estimated expenses for the under the provisions of this section. Office of Federal Housing Enterprise period covered by the assessment. This (Example: If A and B establish a Oversight final rule will implement the FHFA’s payable-on-death account naming authority to establish and collect themselves as the sole beneficiaries of 12 CFR Part 1701 assessments from the Regulated Entities the account, the account will be insured RIN 2590–AA00 and will also remove the regulatory as a joint account because the account provisions that had implemented the does not satisfy the intent requirement Assessments authority of the Office of Federal (under paragraph (a) of this section) that Housing Enterprise Oversight (OFHEO) the funds in the account belong to the AGENCIES: Federal Housing Finance to assess Fannie Mae and Freddie Mac named beneficiaries upon the owners’ Board; Office of Federal Housing (12 CFR part 1701) and the authority of death. The beneficiaries are in fact the Enterprise Oversight; Federal Housing the FHFB to assess the Banks (12 CFR actual owners of the funds during the Finance Agency. 906.1–2). account owners’ lifetimes.) ACTION: Final rule. (g) For deposit accounts held in II. Analysis of the Final Rule SUMMARY: connection with a living trust that The Federal Housing Finance In accordance with section 1316A of provides for a life-estate interest for Board, Office of Federal Housing the Act, part 1206 of the final rule designated beneficiaries, the FDIC shall Enterprise Oversight and Federal authorizes the FHFA to impose value each such life estate interest as the Housing Finance Agency (FHFA) are assessments on the Regulated Entities to SMDIA for purposes of determining the establishing policy and procedures for pay its estimated costs and expenses. insurance coverage available to the the FHFA to impose assessments on the See 12 U.S.C. 4516. The rule recognizes account owner. Federal National Mortgage Association and addresses the differences between (h) Revocable trusts that become (Fannie Mae), Federal Home Loan the Banks and the Enterprises, where irrevocable trusts. Notwithstanding the Mortgage Corporation (Freddie Mac), appropriate. provisions in section 330.13 on the and Federal Home Loan Banks (Banks) The final rule authorizes the FHFA to insurance coverage of irrevocable trust (collectively, Regulated Entities), establish annual assessments for the accounts, a revocable trust account shall through a final rule, pursuant to 12 Regulated Entities to provide for the continue to be insured under the U.S.C. 4516. payment of the FHFA’s costs and provisions of this section even if the DATES: The final rule will become expenses and maintain a working corresponding revocable trust, upon the effective on September 30, 2008. capital fund. The final rule provides for death of one or more of the owners FOR FURTHER INFORMATION CONTACT: the allocation of the annual assessments thereof, converts, in part or entirely, to Frank Wright, Senior Counsel (OFHEO), between the Enterprises and the Banks, an irrevocable trust. (Example: Assume (202) 414–6439; Mark Kinsey, Chief with the Enterprises paying A and B have a trust account in Financial Officer (OFHEO), (202) 414– proportional shares sufficient to provide connection with a living trust, of which 3816; Michele Horowitz, Chief Financial for payment of the costs and expenses

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relating to the Enterprises, and the not as a proposed rule, the provisions of § 1206.2 Definitions. Banks paying proportional shares the Regulatory Flexibility Act do not As used in this part: sufficient to provide for payment of the apply. See 5 U.S.C. 601(2), 603(a). Act means the Federal Housing costs and expenses relating to the Finance Regulatory Reform Act of 2008. List of Subjects Banks. The shares paid by the Adequately capitalized means the Enterprises will be based on the 12 CFR Part 906 adequately capitalized capital proportions of total exposure for the classification under 12 U.S.C. 1364 and Assessments, Federal home loan Enterprises, and the shares paid by the related regulations. banks, Government contracts, Minority Banks will be based on the proportions Director means the Director of the businesses, Mortgages, Reporting and of their minimum required regulatory Federal Housing Finance Agency or his recordkeeping requirements, Women capital, a measure based on the capital or her designee. and minority businesses. that the Banks are required to hold by Enterprise means the Federal National their regulator, rather than a measure of 12 CFR Part 1206 Mortgage Association or the Federal actual capital held. Under this rule, Home Loan Mortgage Corporation; and Assessments, Federal home loan each Regulated Entity must pay an ‘‘Enterprises’’ means, collectively, the banks, Government Sponsored amount equal to one-half of its annual Federal National Mortgage Association Enterprises, Reporting and assessment twice each year. This and the Federal Home Loan Mortgage recordkeeping requirements. represents a significant change to the Corporation. assessment procedure of the FHFB, 12 CFR Part 1701 Federal Home Loan Bank, or Bank, means a Federal Home Loan Bank under which the FHFB made an Government Sponsored Enterprises, assessment annually and the Banks established under section 12 of the Reporting and recordkeeping Federal Home Loan Bank Act (12 U.S.C. made payments in monthly requirements. installments. 1432). This final rule also establishes the Authority and Issuance FHFA means the Federal Housing procedure for the FHFA to increase or Finance Agency. adjust the amount of the semiannual ■ Accordingly, for the reasons stated in Minimum required regulatory capital payment for a Regulated Entity or to the preamble, the Federal Housing means the highest amount of capital make additional assessments for a Finance Agency hereby amends necessary for a Bank to comply with any Regulated Entity, under certain chapters IX, XII, and XVII of Title 12, of the capital requirements established circumstances. Code of Federal Regulations as follows: by the Director and applicable to it. This final rule also implements Chapter IX—Federal Housing Finance Regulated Entity means the Federal another significant change in Board National Mortgage Association, the establishing the procedures for Federal Home Loan Mortgage collecting funds for a working capital PART 906—OPERATIONS Corporation, or any of the Federal Home Loan Banks. fund for the FHFA, under which the ■ FHFA shall collect those assessments 1. The authority citation for part 906 Surplus funds means any amounts deemed necessary to establish an is revised to read as follows: that are not obligated as of September 30 operating reserve that is intended to Authority: 12 U.S.C. 4516. of the fiscal year for which the provide for the payment of large or assessment was made. multiyear capital and operating Subpart A—[Removed] Total exposure means the sum, as of expenditures, as well as unanticipated the most recent June quarterly minimum ■ 2. Remove and reserve subpart A, expenses. capital report of the Enterprise, of the The final rule also implements notice consisting of §§ 906.1 through 906.2. amounts of the following assets and off- and review provisions for the FHFA Chapter XII—Federal Housing Finance balance sheet obligations that are used under which the FHFA will provide to Agency to calculate the quarterly minimum capital requirement of the Enterprise each Regulated Entity written notice of ■ 3. Add Subchapter A, consisting of under 12 CFR part 1750: the projected budget for the FHFA for part 1206 to read as follows: the upcoming year, and the assessments (1) On-balance sheet assets; and semiannual payments to be Subchapter A—Organization and (2) Guaranteed mortgage-backed collected under this rule. Operations securities; and (3) Other off-balance sheet obligations Notice and Public Participation PART 1206—ASSESSMENTS as determined by the Director. The notice and comment procedure Sec. Working capital fund means an required by the Administrative 1206.1 Purpose. account for amounts collected from the Procedure Act is inapplicable to this 1206.2 Definitions. Regulated Entities to establish an final rule because it is a rule of agency 1206.3 Annual assessments. operating reserve that is intended to procedure. See 5 U.S.C. 553(b)(3)(A). 1206.4 Increased costs of regulation. provide for the payment of large or 1206.5 Working capital fund. multiyear capital and operating Paperwork Reduction Act 1206.6 Notice and review. expenditures, as well as unanticipated The regulation does not contain any 1206.7 Delinquent payment. expenses. information collection requirement that 1206.8 Enforcement of payment. requires the approval of the Office of Authority: 12 U.S.C. 4516. § 1206.3 Annual assessments. Management and Budget under the (a) Establishing assessments. The § 1206.1 Purpose. Paperwork Reduction Act (44 U.S.C. Director shall establish annual 3501 et seq.). This part sets forth the policy and assessments on the Regulated Entities in procedures of the FHFA with respect to an amount sufficient to maintain a Regulatory Flexibility Act the establishment and collection of the working capital fund and provide for Because the FHFA is promulgating assessments of the Regulated Entities the payment of the FHFA’s costs and part 1206 in the form of a final rule and under 12 U.S.C. 4516. expenses, including, but not limited to:

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(1) Expenses of any examinations (c) Timing and amount of semiannual (c) Remittance of excess assessed under 12 U.S.C. 4517 and section 20 of payment. Each Regulated Entity shall funds. At the end of each year for which the Federal Home Loan Bank Act (12 pay on or before October 1 and April 1 an assessment under this section is U.S.C. 1440); an amount equal to one-half of its made, the Director shall remit to each (2) Expenses of obtaining any reviews annual assessment. Regulated Entity any amount of assessed and credit assessments under 12 U.S.C. (d) Surplus funds. Surplus funds shall and collected funds in excess of the 4519; be credited to the annual assessment by amount the Director deems necessary to (3) Expenses of any enforcement reducing the amount collected in the maintain a working capital fund in the activities under 12 U.S.C. 3645; following semiannual period by the same proportions as paid under the (4) Expenses of other FHFA litigation amount of the surplus funds. Surplus most recent annual assessment. under 12 U.S.C. 4513; funds shall be allocated to all Regulated (5) Expenses relating to the Entities in the same proportion in which § 1206.6 Notice and review. maintenance of the FHFA records they were collected, except as relating to examinations and other (a) Written notice of budget. The determined by the Director. reviews of the Regulated Entities; Director shall provide to each Regulated (6) Such amounts in excess of actual § 1206.4 Increased costs of regulation. Entity written notice of the projected expenses for any given year deemed budget for the Agency for the upcoming (a) Increase for inadequate necessary to maintain a working capital fiscal year. Such notice shall be capitalization. The Director may, at his fund; provided at least 30 days before the (7) Expenses relating to monitoring or her discretion, increase the amount of beginning of the applicable fiscal year. and ensuring compliance with housing a semiannual payment allocated to a Regulated Entity that is not classified as (b) Written notice of assessments. The goals; Director shall provide each Regulated (8) Expenses relating to conducting adequately capitalized to pay additional estimated costs of regulation of that Entity with written notice of reviews of new products; assessments as follows: (9) Expenses related to affordable Regulated Entity. housing and community programs; (b) Increase for enforcement activities. (1) Annual assessments. The Director (10) Other administrative expenses of The Director may, at his or her shall provide each Regulated Entity the FHFA; discretion, adjust the amount of a with written notice of the annual (11) Expenses related to preparing semiannual payment allocated to a assessment and the semiannual reports and studies; Regulated Entity to ensure that the payments to be collected under this (12) Expenses relating to the Regulated Entity bears the estimated part. Notice of the annual assessment collection of data and development of costs of enforcement activities under the and semiannual payments shall be systems to calculate the House Price Act related to that Regulated Entity. provided before the start of the new Index (HPI) and the conforming loan (c) Additional assessment for fiscal year. limit; deficiencies. At any time, the Director (2) Immediate assessments. The (13) Amounts deemed necessary by may make and collect from any the Director to wind up the affairs of the Director shall provide each Regulated Regulated Entity an assessment, payable Entity with written notice of any Office of Federal Housing Enterprise immediately or through increased Oversight and the Federal Housing immediate assessments to be collected semiannual payments, to cover the under § 1206.4 of this chapter. Notice of Finance Board; and estimated amount of any deficiency for (14) Expenses relating to other any immediate assessment and the the semiannual period as a result of responsibilities of the FHFA under the required payments shall be provided at increased costs of regulation of a Safety and Soundness Act, the Federal such reasonable time as determined by Regulated Entity due to its classification Home Loan Bank Act and the Act. the Director. as other than adequately capitalized, or (b) Allocating assessments. The (3) Changes to assessments. The Director shall allocate the annual as a result of enforcement activities related to that Regulated Entity. Any Director shall provide each Regulated assessments as follows: Entity with written notice of any (1) Enterprises. Assessments collected amount remaining from such additional assessment and the semiannual changes in the assessment procedures from the Enterprises shall not exceed that the Director, in his or her sole amounts sufficient to provide for payments at the end of any semiannual period during which such an additional discretion, deems necessary under the payment of the costs and expenses circumstances. relating to the Enterprises as determined assessment is made shall be deducted by the Director. Each Enterprise shall pro rata (based upon the amount of the (c) Request for review. At the written pay a proportional share that bears the additional assessments) from the request of a Regulated Entity, the same ratio to the total portion of the assessment for the following semiannual Director, in his or her discretion, may annual assessment allocated to the period for that Regulated Entity. review the calculation of the proportional share of the annual Enterprises that the total exposure of § 1206.5 Working capital fund. each Enterprise bears to the total assessment, the semiannual payments, exposure of both Enterprises. (a) Assessments. The Director shall and any partial payments to be collected (2) Federal Home Loan Banks. establish and collect from the Regulated under this part. The determination of Assessments collected from the Banks Entities such assessments he or she the Director upon such review is final. shall not exceed amounts sufficient to deems necessary to maintain a working Except as provided by the Director, provide for payment of the costs and capital fund. review by the Director does not suspend expenses relating to the Banks as (b) Purposes. Assessments collected to the requirement that the Regulated determined by the Director. Each Bank maintain the working capital fund shall Entity make the semiannual payment or shall pay a pro rata share of the annual be used to establish an operating reserve partial payment on or before the date it assessments based on the ratio between and to provide for the payment of large is due. Any adjustments determined its minimum required regulatory capital or multiyear capital and operating appropriate shall be credited or and the aggregate minimum required expenditures as well as unanticipated otherwise addressed by the following regulatory capital of every Bank. expenses. year’s assessment for that entity.

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§ 1206.7 Delinquent payment. DATES: This final rule is effective on Haiti to receive duty-free treatment. The Director may assess interest and September 30, 2008. Subsection (c) of section 213A of the penalties on any delinquent semiannual FOR FURTHER INFORMATION CONTACT: CBERA provided for the duty-free payment or other payment assessed Textile Operational Aspects: Robert treatment of any article classifiable in under this part in accordance with 31 Abels, Office of International Trade, subheading 8544.30.00 of the U.S.C. 3717 (interest and penalty on (202) 863–6503. Harmonized Tariff Schedule of the claims) and part 1704 of this title (debt Other Operational Aspects: Heather United States (HTSUS) (wiring sets), as collection). Sykes, Office of International Trade, in effect on December 20, 2006, that is the product or manufacture of Haiti and § 1206.8 Enforcement of payment. (202) 863–6099. Legal Aspects: Cynthia Reese, Office is imported directly from Haiti into the The Director may enforce the payment of International Trade, (202) 572–8812, customs territory of the United States, of any assessment under 12 U.S.C. 4631 or Craig Walker, Office of International provided a specified value-content (cease-and-desist proceedings), 12 Trade, (202) 572–8836. requirement is met. U.S.C. 4632 (temporary cease-and-desist Subsection (d) of section 213A set SUPPLEMENTARY INFORMATION: orders), and 12 U.S.C. 4626 (civil money forth certain eligibility requirements penalties). Background that Haiti must meet as a prerequisite for articles to receive duty-free Chapter XVII—Office of Federal Housing On June 22, 2007, interim regulations treatment under this section. This Enterprise Oversight, Department of were promulgated to implement the Housing and Urban Development subsection required that the President duty-free provisions of the Haitian determine whether Haiti met these Hemispheric Opportunity through PART 1701—[REMOVED] requirements within 90 days after the Partnership Encouragement (‘‘HOPE I’’) date of enactment of the HOPE Act (or ■ 4. Remove part 1701. Act of 2006. The regulatory by March 20, 2007). amendments adopted as a final rule in Subsection (e) of section 213A Dated: September 25, 2008. this document include changes James B. Lockhart III, (redesignated as subsection (f) by HOPE necessitated by the June 18, 2008 II Act) provided that preferential tariff Director, Federal Housing Finance Agency. enactment of the Haitian Hemispheric treatment for apparel articles under this [FR Doc. E8–23046 Filed 9–26–08; 4:15 pm] Opportunity through Partnership section shall not apply unless the BILLING CODE 4220–01–P Encouragement (‘‘HOPE II’’) Act of President certifies to Congress that Haiti 2008. Detailed information on both the is meeting certain conditions, such as HOPE I and HOPE II Acts follows. the adoption of an effective visa system, DEPARTMENT OF HOMELAND Haitian Hemispheric Opportunity that are primarily intended to avoid SECURITY Through Partnership Encouragement illegal transshipment situations. Act of 2006 Subsection (f) of section 213A Bureau of Customs and Border (redesignated as subsection (g) by HOPE Protection On December 20, 2006, the President II Act) provided that the President shall signed into law the Tax Relief and issue regulations to carry out this DEPARTMENT OF THE TREASURY Health Care Act of 2006 (‘‘the 2006 section not later than 180 days after the Act’’), Public Law 109–432, 120 Stat. date of enactment of the HOPE Act. 19 CFR Parts 10, 163, and 178 2922. Title V of the Act concerns the Section 213A(f) further provided that [Docket No. USCBP–2007–0062; CBP Dec. extension of certain trade benefits to the President shall consult with the 08–24] Haiti and is referred to in the Act as the Committee on Ways and Means of the ‘‘Haitian Hemispheric Opportunity House of Representatives and the RIN 1505–AB82 through Partnership Encouragement Act Committee on Finance of the Senate in of 2006’’ (‘‘HOPE I Act’’). Haitian Hemispheric Opportunity preparing such regulations. CBP Section 5002 of the Act amended the Through Partnership Encouragement consulted with the Committee on Ways Caribbean Basin Economic Recovery Act Acts of 2006 and 2008 and Means and the Committee on (the CBERA, also referred to as the Finance regarding the implementing AGENCIES: Customs and Border Caribbean Basin Initiative, or CBI, interim regulations. Protection, Department of Homeland statute codified at 19 U.S.C. 2701–2707) For a more detailed description of the Security; Department of the Treasury. by adding a new section 213A, entitled statutory provisions set forth in the ACTION: Final rule. ‘‘Special Rules for Haiti’’ and codified at HOPE I Act, please see CBP Dec. 07–43. 19 U.S.C. 2703A, to authorize the On March 19, 2007, the President SUMMARY: This document adopts as a President to extend additional trade signed Proclamation 8114 to implement final rule, with some changes, interim benefits to Haiti for a five-year period the provisions of the HOPE I Act, among amendments to title 19 of the Code of (ending on December 19, 2011) if the other purposes. The Proclamation, Federal Regulations which were President determines that the country which was published in the Federal published in the Federal Register on meets certain specified eligibility Register on March 22, 2007 (72 FR June 22, 2007, as CBP Dec. 07–43 to conditions and requirements. As created 13655), included determinations by the implement the duty-free provisions of by the HOPE I Act, section 213A of the President that Haiti (1) meets the the Haitian Hemispheric Opportunity CBERA consisted of six principal eligibility requirements set forth in through Partnership Encouragement subsections, each of which is section 213A(d) of the CBERA and (2) is (‘‘HOPE I’’) Act of 2006. The regulatory summarized below. meeting the conditions set forth in amendments adopted as a final rule in Subsection (a) of section 213A of the section 213A(e) (redesignated as section this document include changes CBERA set forth definitions of several 213A(f) by HOPE II). The Proclamation necessitated by enactment of the Haitian terms used in section 213A. Subsection also modified subchapter XX of Chapter Hemispheric Opportunity through (b) of section 213A specified the 98 of the Harmonized Tariff Schedule of Partnership Encouragement (‘‘HOPE II’’) conditions and requirements that must the United States (‘‘HTSUS’’) as set forth Act of 2008. be met for certain apparel articles from in Annex 1 to the Proclamation. The

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modifications to the HTSUS included 15402 of the 2008 Act are set forth chapter 62 of the HTSUS that is wholly the creation of new subheadings below. assembled, or knit-to-shape, in Haiti encompassing the various articles that 1. Section 213A(a) was amended by from any combination of fabrics, fabric are eligible for duty-free treatment adding definitions of the terms components, components knit-to-shape, under the HOPE Act. ‘‘imported directly from Haiti or the or yarns and is imported directly from On June 22, 2007, Customs and Dominican Republic’’, ‘‘knit-to-shape’’, Haiti or the Dominican Republic, Border Protection (‘‘CBP’’) published in and ‘‘wholly assembled’’. It is noted that without regard to the source of the the Federal Register (72 FR 34365) as the statutory ‘‘knit-to-shape’’ definition fabric, fabric components, components CBP Dec. 07–43 an interim rule setting requires no change to the interim knit-to-shape, or yarns from which the forth amendments to title 19 of the Code regulatory text as this definition is article is made, subject to certain of Federal Regulations (‘‘CFR’’) to nearly identical to the definition of the specified quantitative limitations. The implement the duty-free provisions of same term set forth in the interim exclusions from the special rule for the HOPE I Act set forth in subsections regulations (see 19 CFR 10.842(j)). The articles of chapter 61 of the HTSUS (a) through (c) of section 213A of the remaining two new statutory definitions include certain T-shirts, singlets, CBERA. As the HOPE Act was signed on referenced above require changes to the sweatshirts, and pullovers for men or December 20, 2006, implementing interim regulatory text. boys. The duty-free treatment provided regulations were due on June 20, 2007 2. Re-designated section for in new section 213A(b)(2) is effective by subsection (f) of section 213A of the 213A(b)(1)(A) (formerly 231A(b)(1) from October 1, 2008, through CBERA. In order to provide under the HOPE I Act) was amended to September 30, 2018. transparency and facilitate their use, the provide that apparel articles of a 6. Former section 213A(b)(5), which interim implementing regulations were producer or entity controlling set forth the conditions and production may be imported directly included within new subpart O in part requirements that must be met for from Haiti or the Dominican Republic. 10 of the CBP regulations (19 CFR part articles of subheading 6212.10, HTSUS Under the HOPE I Act, such articles 10, subpart O). Action to adopt these (brassieres), to receive duty-free were required to be imported directly interim regulations as a final rule was treatment was removed and a new from Haiti. section 213A(b)(3) was added, which withheld pending anticipated action on 3. Re-designated section provides for the duty-free treatment of the part of Congress to amend the 213A(b)(1)(B)(iv)(IV) (formerly certain apparel articles (including underlying statutory provisions in the 213A(b)(2)(D)(iv) under the HOPE I brassieres) and other articles set forth Food, Conservation and Energy Act of Act), was amended by deleting 2008 (Haiti HOPE II Act). references to specific apparel articles below. The duty-free treatment provided Although the interim regulatory (i.e., woven articles and brassieres) that for in new section 213A(b)(3) is effective amendments were promulgated without may or may not be included in the from October 1, 2008, through prior public notice and comment annual aggregation calculation for September 30, 2018, and is not subject procedures and took effect on June 22, purposes of meeting the applicable to quantitative limitations. The articles 2007, CBP Dec. 07–43 provided for the value-content requirement for apparel to which this provision applies are as submission of public comments that articles of a producer or entity follows: would be considered before adopting controlling production. This provision a. Articles of subheading 6212.10, the interim regulations as a final rule. now states, more generally, that entries HTSUS (brassieres), that are wholly The prescribed public comment period of apparel articles receiving preferential assembled, or knit-to-shape, in Haiti closed on August 21, 2007. A discussion treatment under any provision of law from any combination of fabrics, fabric of the comments received by CBP is set (other than under section 213A(b)(1)) or components, components knit-to-shape, forth below. are subject to the ‘‘General’’ subcolumn or yarns and are imported directly from Haiti or the Dominican Republic, Haitian Hemispheric Opportunity of column 1 of the HTSUS are not included in the annual aggregation without regard to the source of the Through Partnership Encouragement fabric, fabric components, components Act of 2008 calculation unless the producer or entity controlling production elects to include knit-to-shape, or yarns from which the On May 21, 2008, the Food, those entries. article is made; Conservation and Energy Act of 2008 4. Re-designated section 213A(b)(1)(C) b. Any of the following apparel (Pub. L. 110–234) (‘‘2008 Act’’) became (formerly section 213A(b)(3) under the articles that is wholly assembled, or law when Congress overrode the HOPE I Act), was amended by revising knit-to-shape, in Haiti from any President’s veto of this legislation. Part the annual quantitative limits for the combination of fabrics, fabric I, Subtitle D, Title XV of the 2008 Act, third through the fifth applicable 1-year components, components knit-to-shape, referred to in the Act as the Haitian periods that apply to apparel articles of or yarns and is imported directly from Hemispheric Opportunity through a producer or entity controlling Haiti or the Dominican Republic, Partnership Encouragement Act of 2008 production. The amendments to this without regard to the source of the (HOPE II Act), amended certain provision do not require changes to the fabric, fabric components, components provisions of section 213A of the interim regulatory text. knit-to-shape, or yarns from which the CBERA. The HOPE II Act amendments 5. Former section 213A(b)(4), which article is made: that require implementation through set forth the conditions and (i) Any apparel article that is of a type regulation by CBP are set forth in requirements that must be met for listed in chapter rule 3, 4, or 5 for section 15402 of the 2008 Act, which certain woven apparel articles of chapter 61 of the HTSUS (as such amended subsections (a) and (b) of chapter 62 of the HTSUS from Haiti to chapter rules are contained in section A section 213A of the CBERA concerning receive duty-free treatment, was of the Annex to Presidential the textile and apparel articles to which removed and a new section 213A(b)(2) Proclamation 8213 of December 20, preferential tariff treatment applies was added. This new provision provides 2007) as being excluded from the scope under this program. A summary of the for the duty-free treatment of any knit of such chapter rule, except that, for principal substantive amendments to article of chapter 61 (subject to certain purposes of this provision, reference in section 213A(b) effected by section exclusions) or any woven article of such chapter rules to subheading

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6104.12.00, HTSUS, is deemed to refer Dominican Republic. The duty-free rule without need for comment. Section to subheading 6104.19.60, HTSUS; and treatment provided for in new section 15407 of the 2008 Act provides that (ii) Any apparel article (other than 213A(b)(4) is effective from October 1, regulations necessary to carry out articles of subheading 6212.10 of the 2008, through September 30, 2018, and section 15402 must be issued not later HTSUS) that is of a type listed in is not subject to quantitative limitations. than September 30, 2008, and section chapter rule 3(a), 4(a), or 5(a) for chapter 8. Section 213A(b) was further 15412 of the 2008 Act provides that 62 of the HTSUS, as such chapter rules amended by adding a new paragraph (5) section 15402 shall take effect on are contained in paragraph 9 of section that provides for the duty-free treatment October 1, 2008, and shall apply to A of the Annex to Presidential of apparel articles that are wholly articles entered, or withdrawn from Proclamation 8213 of December 20, assembled, or knit-to-shape, in Haiti warehouse for consumption, on or after 2007; from any combination of fabrics, fabric that date. c. Articles of subheading 4202.12, components, components knit-to-shape, 1. The heading to 19 CFR part 10, 4202.22, 4202.32, or 4202.92, HTSUS or yarns, without regard to the source of subpart O has been revised to add a that are wholly assembled in Haiti and the fabrics, fabric components, reference to the HOPE II Act; are imported directly from Haiti or the components knit-to-shape, or yarns from 2. Section 10.841, regarding the Dominican Republic, without regard to which the article is made, if the fabrics, applicability of subpart O, has been the source of the fabric, components, or fabric components, components knit-to- revised to add a reference to the HOPE materials from which the article is shape, or yarns comprising the II Act; made; component that determines the tariff 3. In § 10.842(p), the definition of d. Articles of heading 6501, 6502, or classification of the article are of any of ‘‘wholly assembled in Haiti’’ has been 6504, or subheading 6505.90, HTSUS, the fabrics or yarns set forth below and revised to conform to the statutory that are wholly assembled, knit-to- the articles are imported directly from definition of the term set forth in the shape, or formed in Haiti from any Haiti or the Dominican Republic. The HOPE II Act; combination of fabrics, fabric duty-free treatment provided for in new 4. As a result of the amendments to components, components knit-to-shape, section 213A(b)(5) is effective from section 213A of the CBERA effected by or yarns and are imported directly from October 1, 2008, through September 30, the HOPE II Act, all of the textile and Haiti or the Dominican Republic, 2018, and is not subject to quantitative apparel articles to which duty-free without regard to the source of the limitations. treatment applies under this program fabric, fabric components, components a. Fabrics or yarns, to the extent that must be ‘‘imported directly from Haiti knit-to-shape, or yarns from which the apparel articles of such fabrics or yarns or the Dominican Republic.’’ Under the article is made; and would be eligible for preferential HOPE I Act, all eligible articles were e. Any of the following apparel treatment, without regard to the source required to be ‘‘imported directly from articles that is wholly assembled, or of the fabrics or yarns, under Annex 401 Haiti’’. However, no change was made knit-to-shape, in Haiti from any of the North American Free Trade by the HOPE II Act to the ‘‘imported combination of fabrics, fabric Agreement (NAFTA); or directly’’ requirement for articles components, components knit-to-shape, b. Fabrics or yarns, to the extent that eligible for duty-free treatment under or yarns and is imported directly from such fabrics or yarns are designated as section 213A(c) of the CBERA (wiring Haiti or the Dominican Republic, not being available in commercial sets). Therefore, those articles must without regard to the source of the quantities for purposes of: continue to be ‘‘imported directly from fabric, fabric components, components (i) Section 213(b)(2)(A)(v) of the Haiti’’. Accordingly, the introductory knit-to-shape, or yarns from which the CBERA (19 U.S.C. 2703(b)(2)(A)(v)); text to § 10.843, which sets forth a list article is made: (ii) Section 112(b)(5) of the African of the articles to which duty-free (i) Pajama bottoms and other Growth and Opportunity Act (19 U.S.C. treatment applies under this program, sleepwear for women and girls, of 3721(b)(5)); has been revised to reflect this disparity cotton, of subheading 6208.91.30, (iii) Section 204(b)(3)(B)(i)(III) or in treatment between textile and apparel HTSUS, or of man-made fibers, of 204(b)(3)(B)(ii) of the Andean Trade articles on the one hand and wiring sets subheading 6208.92.00, HTSUS; and Preference Act (19 U.S.C. on the other with regard to the (ii) Pajama bottoms and other 3203(b)(3)(B)(i)(II) or 3203(b)(3)(B)(ii)); ‘‘imported directly’’ requirement; sleepwear for girls, of other textile or 5. Section 10.843 has been further materials, of subheading 6208.99.20 (iv) Any other provision, relating to amended to reflect the new and revised HTSUS. determining whether a textile or apparel categories of textile and apparel articles 7. Section 213A(b) was amended by article is an originating good eligible for that are eligible for duty-free treatment adding a new paragraph (4) which preferential treatment, of a law that under the HOPE II Act; provides for the duty-free treatment of implements a free trade agreement 6. In § 10.844, relating to the value- apparel articles that are wholly entered into by the United States that is content requirement for apparel articles assembled, or knit-to-shape, in Haiti in effect at the time the claim for of a producer or entity controlling from any combination of fabrics, fabric preferential tariff treatment is made. production: components, components knit-to-shape, a. Paragraph (a)(2)(iii) has been or yarns, without regard to the source of Regulatory Amendments To Reflect revised to reflect the new statutory the fabric, fabric components, Changes Made by the HOPE II Act language (see section components knit-to-shape, or yarns from As noted earlier, this final rule 213A(b)(1)(B)(iv)(IV) of the CBERA) which the articles are made, if such incorporates in the regulatory text concerning exclusions from the annual apparel articles are accompanied by an certain statutory changes made to aggregation calculation; earned import allowance certificate section 213A of the CBERA by the b. Paragraph (a)(5)(ii)(D) has been issued by the Department of Commerce HOPE II Act. Because these changes to revised to replace the words ‘‘under the reflecting the amount of credits equal to the interim regulatory text, described Bipartisan Trade Promotion Authority the total square meter equivalents of below, are not interpretative in nature Act of 2002’’ with the words ‘‘with such apparel articles and the articles are but closely reflect the language of the respect to the United States’’ to conform imported directly from Haiti or the statute, they are included in this final to an amendment to re-designated

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section 213A(b)(1)(B)(vii)(I)(bb)(DD) of Discussion of Comments in Response to transactions and the preference claims the CBERA (formerly section CBP Dec. 07–43 made on goods they import into the 213A(b)(2)(G)(i)(II)(dd)) by the HOPE II A total of 8 commenters responded to United States. In addition, this Act; and the solicitation of public comments on commenter expressed strong support for c. Paragraph (c)(2) has been revised to the interim regulations set forth in CBP the ‘‘penalty provisions’’ set forth in the replace the words ‘‘under the Bipartisan Dec. 07–43. It is noted that these HOPE I Act implementing regulations Trade Promotion Authority Act of 2002 comments were received prior to the (e.g., denial of duty-free treatment for (19 U.S.C. 3801 et seq.)’’ with the word recent statutory changes effected by the failure to meet applicable requirements and the imposition of an increased ‘‘thereafter’’ to conform to an HOPE II Act. To the extent that the value-content percentage requirement amendment to re-designated section comments received were unaffected by under certain circumstances) and stated 213A(b)(1)(B)(iii)(II) of the CBERA these subsequent changes, CBP has that, through these provisions, CBP has (formerly section 213A(b)(2)(C)(ii)) by responded. References in this comment built in very strong incentives for the HOPE II Act; discussion to the ‘‘HOPE Act’’ are compliance. 7. Section 10.846, relating to the intended to refer to the HOPE program CBP’s Response: CBP appreciates the ‘‘imported directly’’ requirement, has in general. comment as it always strives to balance been revised to reflect the statutory General Comments Regarding the goals of effective enforcement while definition of the term ‘‘imported Interpretation and Implementation of facilitating the flow of legitimate directly from Haiti or the Dominican the HOPE Act commerce. Republic’’ created by the HOPE II Act 3. Comment: One commenter noted (see section 213A(a)(3) of the CBERA). 1. Comment: Five commenters that the interim regulations were issued As noted previously, while the pointed out that section 5004 of the Act some months after the commencement ‘‘imported directly from Haiti or the expresses the ‘‘sense of the Congress of the first statutory applicable year and Dominican Republic’’ requirement that the executive branch * * * should urged CBP to issue the final regulations applies to all textile and apparel articles interpret, implement, and enforce’’ the on an expeditious basis so that eligible for duty-free treatment under preference provisions under the HOPE companies may rely on clear, this program, it does not apply to Act for textile and apparel articles transparent, and predictable rules to articles eligible for duty-free treatment ‘‘broadly in order to expand trade by conduct business with Haiti. under section 213A(c) of the CBERA maximizing opportunities for imports of CBP’s Response: CBP notes that the (wiring sets). Those articles must such articles from Haiti.’’ In view of this date of enactment of the HOPE I Act continue to be ‘‘imported directly from statement of the intent of Congress, (December 20, 2006) marked the Haiti’’. Therefore, § 10.846 has been these commenters urged that the HOPE beginning of the first of five one-year further revised to clarify that wiring sets Act final regulations be interpreted and periods during which certain apparel are subject to the ‘‘imported directly issued in a manner that will expand, articles from Haiti may be eligible for from Haiti’’ requirement, as those words and not restrict, trade with Haiti. duty-free treatment under the Act. are currently defined in § 10.846 of the CBP’s Response: CBP is cognizant of However, the Haiti Act preference interim rule. However, consistent with Congressional desire that the HOPE Act program for apparel articles was the statutory definition of ‘‘imported benefit Haiti to the maximum extent implemented by Presidential directly from Haiti or the Dominican possible and that the executive branch, Proclamation effective with respect to Republic’’, the definition of ‘‘imported in matters subject to interpretation, goods entered, or withdrawn from directly from Haiti’’ has been altered by choose the interpretation most warehouse, on or after March 20, 2007 removing the words ‘‘provided that the beneficial to Haiti that is legally (see Proclamation 8114 dated March 19, articles are imported as a result of the supportable. CBP endeavored to adhere 2007, published in the Federal Register original commercial transaction to this mandate while drafting on March 22, 2007 (72 FR 13655)). CBP between the importer and the producer regulations to implement the specific awaited the publication of Presidential or the producer’s sales agent’’, as set language of the statute which created Proclamation 8114 so that its interim forth in current § 10.846(a)(3)(ii) of the special tariff preference provisions for regulations would be complete. The interim rule; and Haiti within the existing framework of interim regulations implementing the the Caribbean Basin Economic Recovery HOPE I Act were required to be issued 8. Section 10.847(a), concerning the Act (CBERA) (19 U.S.C. 2701 et seq.). not later than 180 days after December filing of claims for duty-free treatment 2. Comment: One commenter 20, 2006, and the interim regulations for articles described in § 10.843, has indicated that as ‘‘the textile and were published in the Federal Register been revised to set forth the new apparel trade has the highest fraud on June 22, 2007. subheadings within Subchapter XX of content of any manufactured good’’, it is CBP notes that issuance of this final Chapter 98 of the HTSUS under which imperative that the regulations rule was delayed pending anticipated the new categories of textile and apparel implementing the HOPE Act be written action on the part of Congress to amend articles created by HOPE II are in a way that provides for meaningful the underlying statutory provisions classified. and effective customs enforcement which resulted in the HOPE II Act. This final rule document addresses while allowing for the flow of legitimate 4. Comment: One commenter urged the comments submitted in response to trade. The commenter stated that the that the visa system for the HOPE the interim rulemaking published as interim regulations are a reasonable program be deployed in such a way that CBP Dec. 07–43 and adopts, as a final approach to achieving this objective and it facilitates trade and does not impose rule, the HOPE I Act implementing commended CBP for its efforts in this additional hurdles or burdens for regulations contained in the interim rule regard. This commenter also stated that Haitian exporters or U.S. importers. document with changes reflecting the it was very encouraged to see an This commenter indicated that it had statutory amendments made by the emphasis on importer requirements heard reports that, due to problems in HOPE II Act as well as other changes throughout the HOPE regulations as the administration of the visa system, identified below in the discussion of importers of textile products should be several companies have been unable to public comments received. held more accountable for their export goods to the United States.

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CBP’s Response: The HOPE Act producer or entity controlling The last shipment is wholly assembled requires the establishment of a visa production to be wholly assembled or in Haiti, has an appraised value of system to ensure that only those apparel knit-to-shape in Haiti (as those terms are $20,000, and meets a value-content articles that meet the applicable defined in section 213A(a) of the requirement of 80%. Taken together, the requirements for preferential tariff CBERA), it allows the materials (e.g., four shipments have an appraised value treatment under the Act receive the fabric components) from which the of $270,000 and meet a value-content benefits of that treatment. An effective articles are made to be produced percentage of 50.4%. Will all apparel visa system affords Haiti the ability to anywhere. See section goods that are shipped to the U.S. in the administer and enforce the program 213A(b)(1)(B)(i)(I) and section last three shipments by Producer A with respect to exports of apparel 213A(b)(1)(B)(ii)((I) of the CBERA. qualify for duty-free treatment under the articles to the United States and allows ‘‘Fabric component’’ is defined in HOPE Act? the United States to monitor imports of § 10.842(g) of the HOPE Act b. Importer D, an entity controlling such articles from that country. CBP implementing regulations as ‘‘a production, purchases apparel articles does not believe that the HOPE Act visa component cut from fabric to the shape that are wholly assembled in Haiti from system currently in place is too complex or form of the component as it is used Producers A, B, and C and enters those or imposes unreasonable burdens on in the apparel article.’’ Therefore, CBP articles during the initial applicable Haitian exporters or U.S. importers. It is believes it is clear from the statute and one-year period. Importer D elects to use noted that the Haitian government has the implementing regulations that the annual aggregation method during not communicated to CBP that it is cutting operations may be performed that period. The three producers also experiencing difficulties in outside of Haiti. produce apparel for other U.S. importers implementing the visa system. In regard to sewing, CBP believes that and each producer elects to use the the revised definition of ‘‘wholly annual aggregation method. The total Definitions assembled in Haiti’’ set forth in appraised value of the apparel 5. Comment: Six of the commenters § 10.842(p) of this final rule document, purchased by Importer D from the three asserted that the definition of ‘‘wholly which conforms to the statutory producers and entered during the initial assembled in Haiti’’ set forth in definition of that term set forth in the applicable one-year period is $300,000, § 10.842(p) of the interim regulations is HOPE II Act, addresses the commenter’s and these shipments meet a value- overly restrictive in that it requires that concerns. content percentage of 51.7%. However, all of the components of the article the value-content percentage met by all Annual Aggregation (including minor components) be joined the apparel that is wholly assembled in together in Haiti. Five of these 7. Comment: Five commenters stated Haiti by Producer C and entered commenters stated that this phrase must that the final regulations should clarify, (including the apparel imported by be read in the light of the clear intent through the use of specific examples, Importer D) during the initial applicable of the legislation to provide for non- the application of the annual one-year period is 49%. Does the failure origin conferring events and operations aggregation method in meeting the of Producer C to meet the applicable to be performed within HOPE Act value-content requirement for apparel value-content requirement for the eligible countries. Four commenters articles that are wholly assembled or apparel that it produces during this suggested that the definition of the knit-to-shape in Haiti. Three of these period affect the preferential status of phrase should follow the more liberal commenters raised certain specific the apparel articles produced by definition set forth in § 102.21(b)(6) of issues regarding the annual aggregation Producer C and imported by Importer the CBP regulations, which would allow method by offering the exact same D? minor parts to be added in eligible scenarios and questions as follows: CBP’s Response: Based on the facts countries other than Haiti. One of these a. Haitian Producer A elects to use the presented in the first scenario, the commenters recommended that the annual aggregation method in the initial apparel articles that were wholly HOPE Act preference provisions be applicable one-year period, and also assembled in Haiti and shipped to the more broadly applied to textile and elects, pursuant to § 10.844(a)(2)(iii)(C) U.S. in the last three shipments by apparel articles from Haiti or the of the interim regulations, to include in Producer A would qualify for duty-free designated beneficiary countries as long the aggregation calculation entries of treatment under the HOPE Act, as the as the key assembly operations are apparel articles receiving preferential applicable value-content requirement performed in Haiti. tariff treatment under other preference for the initial applicable one-year period CBP’s Response: The definition of programs as well as articles subject to a (50%) would be met. This conclusion ‘‘wholly assembled in Haiti’’ set forth in Normal Trade Relations (NTR) rate of assumes that: (1) The CBTPA-eligible § 10.842(p) has been revised in this final duty. Producer A ships to the United apparel articles in the first shipment rule document to conform to the States four shipments during the initial (that were included in the annual statutory definition of that term set forth applicable one-year period (all are aggregation calculation at the election of in the HOPE II Act (see section entered during that period). The first the producer) were wholly assembled or 213A(a)(5) of the CBERA). CBP believes shipment of apparel (qualifying for knit-to-shape in Haiti, as required by that this statutory and resulting preference under the Caribbean Basin § 10.844(a)(2)(iii)(C); and (2) the articles regulatory change addresses these Trade Partnership Act (CBTPA)) has an in the last three shipments satisfy all commenters’ concerns. appraised value of $100,000 and meets other applicable requirements set forth 6. Comment: One commenter stated a value-content percentage (under in subpart O, part 10, CBP regulations that the definitions should make clear § 10.844(a)) of 80%. The second (e.g., declaration of compliance and that not all cutting and sewing is shipment of apparel is wholly ‘‘imported directly’’ requirements). required in Haiti and that, specifically, assembled in Haiti, has an appraised In regard to the facts set forth in the cutting and sewing operations value of $100,000, and meets a value- second scenario, pursuant to section performed in the United States would content percentage of 40%. The third 213A(b)(1)(iv)(I) of the CBERA and not disqualify a garment. shipment is wholly assembled in Haiti, § 10.844(a)(2)(i) of the interim CBP’s Response: Although the HOPE has an appraised value of $50,000, and regulations, in determining whether Act requires apparel articles of a meets a value-content percentage of 0%. apparel articles of a producer or entity

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controlling production that are entered CBP notes that, pursuant to method must be used for all articles of under the annual aggregation method in § 10.844(a)(4)(i)(C), an additional a producer or entity controlling the initial applicable one-year period consequence of Producer C’s failure to production during that period. As satisfy the applicable value-content meet the value-content requirement in recommended by these commenters, requirement (50%) in that period, ‘‘all the initial applicable one-year period CBP is amending § 10.844(a)(3) in this apparel articles of that producer or would be that articles wholly assembled final rule document to clarify that a entity controlling production that are by Producer C and entered during producer or entity controlling wholly assembled or knit-to-shape in succeeding applicable one-year periods production may elect to use the Haiti and are entered in the initial will be ineligible for duty-free treatment individual entry or annual aggregation applicable one-year period’’ must be until the appropriate increased value- method in any applicable one-year considered. Thus, for the entity content requirement has been met, period and then switch to the other controlling production in this scenario except to the extent the articles method during the next one-year period. (Importer D), the apparel articles that retroactively qualify for preference In response to the question posed by must be considered are those that are under § 10.845. two of the commenters, CBP believes purchased by Importer D from CBP agrees with the commenters that that a declaration of compliance must be Producers A, B, and C and entered additional examples should be included submitted following the end of any during the initial applicable one-year in the HOPE Act implementing applicable one-year period in which the period. As all of the articles, in the regulations to clarify the application of individual entry method is used if an aggregate, purchased by Importer D from the annual aggregation method. election is made to use the annual the three producers and entered during Therefore, CBP is amending paragraph aggregation method during the next the initial applicable one-year period (a)(2)(iii) and new paragraph (a)(4)(iii) of applicable one-year period. As section satisfy the 50% value-content § 10.844 by adding two examples (one 203A(b)(1)(B)(iv)(II) of the CBERA and requirement, all of these articles are in each paragraph) patterned after the § 10.844(a)(2)(ii) of the interim entitled to duty-free treatment under the two scenarios presented by the regulations make clear, an election to HOPE Act, assuming all other commenters. use the annual aggregation method in applicable requirements are met. 8. Comment: Three commenters stated the second, third, fourth, or fifth that the interim regulations applicable one-year period is With respect to Producer C, the (specifically, § 10.844(a)) are unclear conditioned on compliance with the apparel articles that must be considered regarding whether a producer or entity applicable value-content requirement by in determining compliance with the controlling production may elect to use all apparel articles of the producer or 50% value-content requirement under the individual entry method during an entity controlling production, in the the annual aggregation method are all applicable one-year period and then aggregate, that are entered during the those articles that are wholly assembled switch to the annual aggregation method previous applicable one-year period. or knit-to-shape in Haiti by Producer C for the following year. Assuming that a Thus, an importer may enter articles and entered in the initial applicable producer or entity controlling under the annual aggregation method in one-year period. In this scenario, all of production may use the individual entry each of the second through fifth the articles, in the aggregate, that are method during the first applicable one- applicable one-year periods only if it wholly assembled by Producer C and year period and then elect to use the can assure CBP through the submission entered during the initial applicable annual aggregation method during the of a declaration of compliance, as set one-year period (including the articles second applicable one-year period, two forth in § 10.848, that the aggregate total sold to Importer D) do not satisfy the of these commenters asked whether it of all apparel articles of the producer or 50% value-content requirement. would be necessary to submit a entity controlling production met the However, the failure of Producer C to declaration of compliance following the applicable value-content requirement meet the value-content requirement end of the first applicable one-year during the previous applicable one-year under these circumstances should not period. One commenter stated that period. This is true even if all articles and will not affect the duty-free status § 10.844(a)(3) ‘‘seems to imply’’ that of the producer or entity controlling of the articles purchased by Importer D once an election is made to use the production were entered under the from Producer C since, as noted above, annual aggregation method, use of the individual entry method during that the cumulative total of all of the articles individual entry method is foreclosed previous applicable one-year period. whose production is controlled by for any subsequent one-year period. CBP is amending § 10.848 in this final Importer D (an entity controlling CBP’s Response: There is nothing in rule document to specifically address production) meets the 50% value- the HOPE Act or the implementing this issue. content requirement. Therefore, the interim regulations (including 9. Comment: Five commenters noted consequences of Producer C’s failure to § 10.844(a)(3)) that would preclude a that § 10.844(a)(2)(iii)(C) of the interim meet the 50% value-content producer or entity controlling regulations permits apparel articles requirement include the denial of duty- production from electing to use either receiving preferential tariff treatment free treatment for all articles that are the annual aggregation or individual under any provision of law other than wholly assembled by Producer C and entry method during one applicable the HOPE Act to be included in the entered during the initial applicable one-year period and then switching to annual aggregation calculation (at the one-year period, except for those articles the other method during the subsequent election of the producer or entity sold by Producer C to Importer D. CBP one-year period. This assumes, of controlling production). However, these is amending § 10.844(a)(4) in this final course, that all applicable requirements commenters objected to the requirement rule to clarify the circumstances under are met during the applicable one-year in the regulation that the apparel which this exception applies by adding period preceding the period in which articles must be ‘‘wholly assembled’’ in a new paragraph (a)(4)(iii) to § 10.844, the switch is to be made. The Haiti. According to the commenters, this resulting in the re-designation of current underlying purpose of § 10.844(a)(3), as is an impermissible expansion of the paragraphs (a)(4)(iii) through (a)(4)(v) as set forth in the interim rule, is to make statutory language ‘‘that sets another paragraphs (a)(4)(iv) through (a)(4)(vi), it clear that, regardless of the method hurdle for Haitian goods for respectively. chosen for a particular period, that qualification of merchandise otherwise

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produced in Haiti.’’ Several of these used in section 213A(b)(1)(B)(iv)(I) and such a way and at such time as to commenters stated that this additional (II). maximize the duty-free benefit of the requirement seems excessive 10. Comment: One commenter stated program. In addition, this commenter considering that these other preference that the final regulations should make it complained that the interim regulations programs (e.g., CBTPA) do not require clear that an entity controlling provide no information as to how such ‘‘such a wholly assembled definition.’’ production and a manufacturer will not an election is to be made so that it may CBP’s Response: CBP notes initially both be penalized if one of the parties take legal effect, and that the regulations that § 10.844(a)(2)(iii) has been amended fails to meet its annual aggregation do not make clear that CBTPA-type in this final rule document to conform percentage requirement and they are not operations count toward the aggregate to an amendment to section exclusively producing for or importing value-content requirement, assuming 213A(b)(1)(B)(iv)(IV) of the CBERA by from each other. Another commenter the apparel product is wholly assembled the HOPE II Act (deleting specific indicated that the failure of a producer in Haiti. references to woven apparel articles and (electing to use the annual aggregation CBP’s Response: CBP disagrees with brassieres). However, amended method) to meet the applicable value- the commenter’s assertion that there is § 10.844(a)(2)(iii) continues to require content requirement in a particular year no statutory authority for the that the referenced apparel articles must should not be ‘‘transferred’’ to U.S. requirement in § 10.844(c) that a be ‘‘wholly assembled or knit-to-shape’’ importers who take appropriate steps to producer or entity controlling in Haiti. ensure that their imported goods satisfy production that elects to use the annual the value-content requirement. aggregation method during an CBP maintains that if the statute is CBP’s Response: CBP has previously applicable one-year period must read as a whole, the rationale for the addressed in this comment discussion continue to use that method for all its ‘‘wholly assembled or knit-to-shape’’ the circumstances under which the qualifying apparel articles throughout requirement in § 10.844(a)(2)(iii) failure of an entity controlling that period. Section 203A(b)(1)(B)(iv) of becomes clear. Annual aggregation production and/or a producer to meet the CBERA provides that the use of the applies to apparel articles of a producer the applicable value-content annual aggregation method in an or entity controlling production that requirement under the annual applicable one-year period involves enter during an applicable one-year aggregation method in a particular one- aggregating costs with respect to ‘‘all period and is calculated by aggregating year period will affect the duty-free apparel articles’’ of the producer or certain costs incurred with respect to all status of the apparel articles that they entity controlling production that are apparel articles of that producer or control or produce in situations in entered during the applicable one-year entity controlling production that are which they do not exclusively produce period (initial period for an election in wholly assembled, or knit-to-shape, in for or import from each other. As that period and preceding period for an Haiti and entered during the first year previously indicated, CBP is amending election in subsequent periods). of the program or, for subsequent years, § 10.844(a)(4) in this final rule to clarify Consequently, allowing a producer or entered during the preceding year. See this matter. entity controlling production to elect to section 213A(b)(1)(B)(iv)(I) and (II) of CBP disagrees with the second use the annual aggregation method for the CBERA. Paragraph (IV) of section commenter’s assertion that the failure of some of its apparel articles that are 213A(b)(1)(B)(iv) clarifies that the a producer to meet the applicable value- entered during an applicable one-year universe of apparel articles wholly content requirement under the annual period and use the individual entry assembled, or knit-to-shape, in Haiti to aggregation method should not be method for other articles entered during be included in the calculation of all ‘‘transferred’’ to U.S. importers who take the same period would be inconsistent apparel articles so produced in Haiti appropriate steps to ensure that their with the clear wording of the statute. and entered during the year under imported goods satisfy the value-content Regarding the other points made by consideration is not to include entries of requirement. All U.S. importers of the commenter, paragraphs (a)(2) and (b) apparel articles receiving preferential apparel articles for which preferential of § 10.847 set forth the procedure for treatment under any provision of law tariff treatment is sought under the filing a claim for duty-free treatment for other than section 213A(b)(1) or entries HOPE Act are required to exercise apparel articles described in § 10.843(a) of apparel articles subject to the Normal reasonable care to ensure that those when an election has been made by the Trade Relations ‘‘general’’ rate of duty, articles are in fact entitled to such producer or entity controlling unless the producer or entity controlling treatment. Thus, if a producer fails to production (through the use of a production elects to include such meet the applicable value-content certification to that effect) to use the entries. In other words, the phrase ‘‘all percentage in a particular one-year annual aggregation method. Section apparel articles’’ for purposes of section period, all importers who purchase 10.844(a)(2)(iii) addresses an election to 213A(b)(1)(B)(iv)(I) and (II) is defined in apparel articles from that producer will include in the annual aggregation section 213A(b)(1)(B)(iv)(IV). Defining be subject to rate advances due to the calculation an entry of apparel articles the scope of ‘‘all apparel articles’’ does failure of the articles to satisfy the receiving duty-free treatment under not relieve the articles from the applicable HOPE Act requirements. another preference program (such as the requirements of section 11. Comment: One commenter stated CBTPA), provided the articles are 213A(b)(1)(B)(iv)(I) and (II) that they be that it was unable to find any wholly assembled or knit-to-shape in wholly assembled, or knit-to-shape in Congressional intent or statutory Haiti. Haiti. The commenters are mistaken in language that supports the requirement their belief that CBP is expanding the in § 10.844(c) of the interim regulations Increased Value-Content Percentage statutory language to construct a that there be an ‘‘irreversible election’’ 12. Comment: Three commenters ‘‘hurdle’’ for Haitian goods. CBP is to use the annual aggregation method. It objected to CBP’s interpretation and merely reading the statute as a whole was this commenter’s understanding, as application of the statutory increased and recognizes that section the HOPE I Act bill was being drafted, value-content percentage requirement 213A(b)(1)(B)(iv)(IV) serves to clarify that a producer or entity controlling (see section 213A(b)(1)(B)(vi)(II) of the Congressional intent regarding the scope production could choose to use the CBERA), as reflected in of the words ‘‘all apparel articles’’, as aggregate or individual entry method in § 10.844(a)(4)(iii) of the interim

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regulations (now § 10.844(a)(4)(iv)) and language in § 213A(b)(1)(B)(vi)(II) of the section 213(b)(2)(A)(iv)(II) and (III) of Example 1 under § 10.844(a)(4)(iv) (now CBERA. the CBERA (19 U.S.C. § 10.844(a)(4)(v)). These commenters 2703(b)(2)(A)(iv)(II) and (III)), relating to New Producer or Entity Controlling contend that the words ‘‘plus ten the preferential treatment of brassieres Production percent’’ in the statute mean that ten from designated Caribbean Basin percent is to be applied against the 13. Comment: Five commenters countries under the United States- applicable percentage to arrive at the disagreed with the requirement in Caribbean Basin Trade Partnership Act increased value-content percentage (e.g., § 10.844(a)(4)(iv) of the interim (CBTPA), CBP determined that a new 50% + 10% of 50%= 55%). According regulations (now § 10.844(a)(4)(v)) that a producer or entity controlling to these commenters, CBP has adopted new producer or entity controlling production must first establish a more strict (and, in fact, an erroneous) production (one who did not participate compliance with a higher value-content interpretation of the words ‘‘plus ten in the program during the preceding percentage (85% rather than 75%) as a percent’’ by actually adding 10 applicable one-year period) that elects prerequisite to receiving preferential percentage points to the applicable to use the annual aggregation method treatment (see § 10.228(b)(2)(i)(G) and percentage (e.g., 50% + 10%= 60%) in must first meet an increased value- Example 7 under § 10.228(b)(2)(ii) of the calculating the increased value-content content percentage during the first year CBP regulations (19 CFR percentage. Another commenter alleges, of participation before beginning to 10.228(b)(2)(i)(G) and 10.228(b)(2)(ii))). without further elaboration, that receive duty-free treatment during the Thus, § 10.844(a)(4)(iv) of the HOPE I § 10.844(a)(4)(iii) (now next applicable one-year period. These Act implementing regulations (now § 10.844(a)(4)(iv)) is inconsistent in commenters maintained that this § 10.844(a)(4)(v)) and § 10.228(b)(2)(i)(G) delineating the increased value-content requirement unjustifiably and unfairly of the CBTPA implementing regulations percentages. penalizes new entrants to the program are consistent in their treatment of new and is inconsistent with the language CBP’s Response: CBP disagrees with producers and entities controlling and goals of the HOPE Act. the commenters’ interpretation of production under those programs. CBP’s Response: CBP believes it is 14. Comment: One commenter stated section 213A(b)(1)(B)(vi)(II) of the constrained by the statutory language to CBERA, which sets forth the increased- that in the final regulations, require that new entrants to the program § 10.844(a)(4)(iv) (now § 10.844(a)(4)(v)) value content percentage requirement. (in the second through fifth applicable This provision states, in pertinent part, should clarify that a new producer or one-year periods) that elect to use the entity controlling production that elects that if a producer or entity controlling annual aggregation method must first to use the individual entry method is production is not in compliance with meet an increased value-content not subject to an increased value- the statutory requirements in an percentage during the first year of content percentage requirement. applicable one-year period, then apparel participation before becoming eligible CBP’s Response: Although Example 2 articles of that producer or entity for preference during the next under § 10.844(a)(4)(iv) (now controlling production shall be applicable one-year period. As noted § 10.844(a)(4)(v)) indirectly addresses ineligible for preferential treatment previously in this comment discussion, this issue, CBP agrees with the during any succeeding period until the section 213A(b)(1)(B)(vi)(II) of the commenter that the text of the sum of the relevant costs ‘‘is not less CBERA conditions use of the annual regulation itself should be amended to than the applicable percentage under aggregation method during each of the reflect that apparel articles of a new clause (v)(I), plus 10 percent, of the second through fifth applicable one-year producer or entity controlling aggregate declared customs value of all periods on compliance with the production electing to use the apparel articles of that producer or applicable value-content requirement by individual entry method are not subject entity controlling production * * *.’’ all qualifying apparel articles of the to the requirement of first meeting the The words ‘‘plus 10 percent’’ are set off producer or entity controlling increased value-content percentage as a by commas and clearly refer to the production that are entered during the prerequisite to receiving preferential words ‘‘the aggregate declared customs previous applicable one-year period. A treatment during the first year of value’’—not ‘‘the applicable new entrant obviously cannot meet the participation in the program or in percentage.’’ Therefore, in CBP’s applicable value-content requirement succeeding years. Therefore, opinion, § 10.844(a)(4)(iii) (now during the previous applicable one-year § 10.844(a)(4)(iv) (now § 10.844(a)(4)(v)) § 10.844(a)(4)(iv)) and Example 1 under period if there was no production (and is being amended in this final rule § 10.844(a)(4)(iv) (now § 10.844(a)(4)(v)) therefore no entries) during that document to clarify this point. are correct in requiring that the previous year. As a result of a new increased value content percentage be entrant’s inability to meet the applicable Eligible Countries determined by adding 10 percent to the value-content requirement during the 15. Comment: Four commenters applicable percentage—not by applying previous year, section suggested that § 10.844(c)(3) of the 10 percent against the applicable 213A(b)(1)(B)(vi)(II) of the CBERA interim regulations should specify the percentage and then adding that result requires that apparel articles of the designated beneficiary countries (under to the applicable percentage. Had producer or entity controlling the Andean Trade Preference Act, Congress intended the latter meaning, production be treated as ineligible for African Growth and Opportunity Act, CBP believes that Congress would have preferential treatment until the year and Caribbean Basin Trade Partnership used statutory language to clearly after those articles meet the increased Act) that qualify as ‘‘eligible countries’’ accomplish that intent. value-content percentage requirement. for purposes of the HOPE program, In regard to the assertion that The statute sets forth no exception to rather than merely referring the reader § 10.844(a)(4)(iii) (now the increased value-content percentage to the HTSUS General Notes under § 10.844(a)(4)(iv)) is ‘‘inconsistent in requirement for articles of a new which the designated beneficiary delineating the increased value-content producer or entity controlling countries are listed. In addition, these percentages’’, CBP cannot discern any production. commenters stated that this regulation inconsistency in this provision, which CBP notes that in the context of should clarify whether qualifying inputs CBP notes closely follows the statutory somewhat similar statutory language in from these designated beneficiary

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countries will continue to be eligible www.usitc.gov/tata/hts/bychapter/ invoices, bills of lading, and other under the HOPE program should these 0800gntoc.htm. shipping documents show the United other preference programs subsequently States as the final destination.’’ Direct Costs of Processing Operations expire. According to these commenters, this is CBP’s Response: Section 16. Comment: One commenter stated an incorrect interpretation under the 213A(b)(1)(B)(iii) of the CBERA that § 10.844(e) of the interim other preference programs and would be specifies that certain material and regulations should be amended to particularly so under the HOPE processing costs incurred in the include as a ‘‘direct cost of processing program. following countries may be counted operation’’ the cost of packaging CBP’s Response: Although the HOPE toward meeting the applicable value- materials (such as labels, hangtags, and I Act included no definition of the term content percentage requirement: (1) The bags) if such materials are required to be ‘‘imported directly’’, the HOPE II Act United States; (2) any country that is a included with the article. This included a definition of ‘‘imported party to a free trade agreement with the commenter also asked that ‘‘direct costs directly from Haiti or the Dominican United States that is in effect on the date of processing operations’’ include the Republic’’ (see section 213A(a)(3) of the of the enactment of the HOPE Act, or cost of any post production procedures, CBERA). Section 10.846 has been that enters into force thereafter; (3) any such as mending or finishing that may amended to conform to this statutory country designated as a beneficiary be needed to present the finished article definition. country under the CBTPA; (4) any for sale. According to this commenter, With respect to the concerns country designated as a beneficiary the definition of the term ‘‘wholly expressed by some of the commenters assembled’’ in § 10.842(p) of the interim country under the African Growth and regarding the correctness of certain regulations could be interpreted as Opportunity Act (AGOA); and (5) any administrative rulings issued by CBP precluding such operations, contrary to country designated as a beneficiary interpreting the ‘‘imported directly’’ the intent of the statute. country under the Andean Trade CBP’s Response: Because the HOPE requirement under the CBERA and other Preference Act (ATPA). Act includes no definition of the words preference programs, CBP does not Only the countries referenced in (2) ‘‘direct costs of processing operations’’, believe it is appropriate to address these above (parties to a free trade agreement CBP based the definition set forth in concerns in the context of the HOPE Act in effect as of the date of enactment of § 10.844(e) of the interim regulations on implementing regulations. In CBP’s the HOPE Act) are subject to a specific the definition of the same term found in opinion, these concerns should properly effective date insofar as determining section 213(a)(3) of the CBERA (19 be addressed through the CBP whether qualifying material or U.S.C. 2703(a)(3)) and § 10.197 of the administrative rulings process (see part processing costs from such countries CBP’s CBERA implementing regulations 177 of the CBP regulations (19 CFR part may be counted under the HOPE Act. (19 CFR 10.197). CBP believes that 177)). As the countries referenced in (3), (4), determinations regarding whether 18. Comment: Three commenters and (5) above (relating to CBTPA, specific costs not mentioned in urged that CBP broaden the ‘‘imported AGOA, and ATPA) are not subject to an § 10.844(e), such as those referenced by directly’’ concept, at least with respect effective date, CBP believes it was the the commenter, qualify as ‘‘direct cost of to apparel articles subject to value- intent of Congress that a determination processing operations’’ should best be added provisions, to permit passage regarding a country’s status as a made on a case-by-case basis pursuant through, and permit operations in, the beneficiary country under these to CBP’s administrative rulings program territory of other HOPE ‘‘eligible programs should be made at the time a (see part 177 of the CBP regulations (19 countries’’(as enumerated in claim for preferential tariff treatment is CFR part 177)). § 10.844(a)), as long as the origin- filed under the HOPE Act. For example, conferring operations are performed in if a country loses its designated Imported Directly Haiti. These commenters indicated that beneficiary country status under one of 17. Comment: Six commenters Congress’s intent in setting up this these programs as of July 1, 2008, maintained that § 10.846 of the interim program was to create linkages between material and processing costs incurred regulations sets forth an unnecessarily Haiti and other HOPE ‘‘eligible in that country may no longer be strict construction of the statutory countries.’’ Two of these commenters counted toward meeting the applicable ‘‘imported directly’’ requirement, stated that, alternatively, CBP should HOPE Act value-content requirement thereby placing untenable restrictions permit HOPE eligible goods to be effective for apparel articles entered on on the process of shipping goods to the exported from the Dominican Republic or after that date. United States via intermediary because of its geographic proximity to, With respect to these commenters’ countries, contrary to the intent of and existing co-production agreements suggestion that § 10.844(c)(3) of the Congress. Five of these commenters with, Haiti. As an example, one HOPE I Act implementing regulations noted that the ‘‘imported directly’’ rules commenter stated that § 10.846 should should specify the designated set forth in § 10.846 are similar to rules not be interpreted as prohibiting beneficiary countries under the CBTPA, applied to certain other preference activities such as screen printing, AGOA, and ATPA, CBP prefers not to programs, and that interpretative rulings repairing, and embellishing articles, as identify each of these countries in this issued by CBP have concluded that the well as ‘‘warehouse/pack/sticker’’ regulatory provision as changes in their prohibition relating to the ‘‘entry into activities in the Dominican Republic. status as beneficiary countries would commerce’’ of an intermediate country CBP’s Response: The HOPE II Act require repeated amendments to the means that the goods may not be amended the HOPE program to allow regulation. CBP believes that the ‘‘manipulated’’ in that country. These eligible textile and apparel articles to be regulation’s cross-reference to the commenters stated that, by so doing, imported directly from Haiti or the listings of designated beneficiary CBP has not permitted operations (other Dominican Republic. CBP believes that countries in General Notes 11 (ATPA), than loading or unloading or other this change, along with the statutory 16 (AGOA), and 17 (CBTPA) of the activities necessary to preserve the definition of ‘‘wholly assembled in HTSUS is sufficient as these listings are goods in good condition) even in a Haiti’’ included in the HOPE II Act, easily accessible at http:// bonded warehouse and even where ‘‘the addresses these commenters’ concerns.

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Declaration of Compliance declaration of compliance filed with during the applicable one-year period 19. Comment: Four commenters CBP during the 30-day period may with respect to each producer or entity complained that the declaration of reflect estimated values until more controlling production.’’ Thus, the compliance requirement in § 10.848 of accurate value-content figures are importer must obtain and provide to the interim regulations is overly known, at which time the importer may CBP information regarding the value- restrictive in that it requires that value amend the declaration. Again, if a content percentage that was met with information be provided with line producer or entity controlling respect to all apparel articles of each number and line value specificity. production finds that providing the producer or entity controlling These commenters allege that this is information necessary for the production that were entered during the unduly burdensome for the producer submission of a declaration of applicable one-year period—not just the compliance is unduly burdensome, the articles purchased by the importer. when it is filing its own declaration of entry-by-entry method is available as an In answer to the commenter’s compliance as the entity controlling alternative to the annual aggregation question concerning what CBP would production. do if the producer elects to use one CBP’s Response: Under the HOPE Act method. 21. Comment: One commenter was method for purposes of meeting the preference program relating to certain troubled that § 10.848 places the value-content requirement but the apparel articles, meeting the applicable responsibility for submitting the importer uses the other method, value-content requirement is a declaration of compliance on the § 10.847(b) of the interim regulations prerequisite to qualifying for duty-free importer, considering that compliance is was drafted to prevent such an treatment. For CBP to be able to measured at the level of the producer or occurrence. Under this provision, an properly verify that a producer or entity entity controlling production. This importer may enter articles using the controlling production has met the commenter indicated that it could annual aggregation method only if the applicable value-content requirement envision a situation in which an importer is in possession of a copy of a when the annual aggregation method is importer is required to certify certification by the producer or entity used, it is critical that CBP have access compliance for a producer ‘‘when the controlling production setting forth its to pertinent value information with producer’s total production is not election to use the annual aggregation respect to all affected entries (and all compliant but when the product the method. In the absence of such a affected apparel articles covered by importer bought from the producer is.’’ certification, the importer is required to those entries) that are filed during the This commenter inquired regarding enter the articles using the individual applicable one-year period. Without the what CBP would do if the producer entry method. information required by the declaration elected to use the individual entry 22. Comment: One commenter of compliance (e.g., entry numbers, line method but the importer used the expressed concern that, as currently number and value), CBP would be annual aggregation method, or vice- written, §§ 10.848 and 10.849 would unable to determine, on the basis of versa. The commenter urged that CBP impose upon a customs broker serving submitted documentation, that an shift the responsibility for preparing and as nominal importer of record the annual aggregation calculation satisfies filing the declaration of compliance on responsibility for certifying the the applicable value-content the producer or entity controlling eligibility of articles for duty-free requirement. If a producer or entity production ‘‘so the importer has greater treatment under the HOPE Act. controlling production finds that certainty he is relying upon a known According to this commenter, a broker providing the information required by quantity.’’ acting as nominal importer of record the declaration of compliance is unduly CBP’s Response: The commenter is would be unable to certify or verify the burdensome, the entry-by-entry method correct that, under the HOPE Act, accuracy of the information provided. may be used for purposes of satisfying compliance with the requirements for The commenter stated that the actual the value-content requirement. preferential treatment for apparel importer is the party most 20. Comment: One commenter stated articles is addressed in the context of knowledgeable regarding the facts and that the requirement in § 10.848 that the the producer or entity controlling circumstances of the importation and, as declaration of compliance be filed with production. However, as is the case with such, should be solely responsible for CBP within 30 days of the end of the respect to all preferential tariff treatment making HOPE Act claims and applicable one-year period is overly programs, it is the responsibility of the submitting the declaration of restrictive. This commenter maintained U.S. importer of the articles for which compliance. The commenter that it will be extremely difficult to preference is sought to file the entry recommended that CBP clarify the obtain actual values within the 30-day with CBP and to make the claim for regulations to distinguish between a time period with respect to entries duty-free treatment under the HOPE Act broker serving as a nominal importer of subject to reconciliation, especially (see § 10.847 of the HOPE Act record in an import transaction and the when a fiscal year fails to coincide with implementing regulations). actual importer. the end of the applicable one-year Consequently, it is the importer’s CBP’s Response: As indicated period. Therefore, this commenter asked responsibility to file the declaration of previously in this comment discussion, that § 10.848 include an exception or compliance with CBP under the it is the responsibility of the importer of provisional treatment for filing the circumstances set forth in § 10.848 of record of articles for which preference is declaration of compliance for entries the implementing regulations. sought under the HOPE Act to obtain that are subject to reconciliation. In regard to the situation envisioned sufficient information concerning the CBP’s Response: CBP recognizes that by the commenter in which a producer’s transaction to know whether the articles there may be situations in which an total production is not in compliance meet all applicable requirements and, importer may not have access to actual with the applicable value-content therefore, are entitled to duty-free values within the 30-day period requirement although the portion treatment. If the importer does not required for submission of the purchased by the importer is, possess that information, no claim for declaration of compliance in § 10.848(a) § 10.848(c)(2)(v) requires that the preference under the HOPE Act should of the HOPE Act implementing declaration of compliance include ‘‘[t]he be made. In a situation in which a regulations. In these situations, the value-content percentage that was met broker serves as nominal importer of

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record, the broker should either obtain Reduction Act (44 U.S.C. 3507) under (§§ 10.841 through 10.850) continue to all necessary information from the control number 1651–0129. read as follows: consignee or other parties regarding The collections of information in Authority: 19 U.S.C. 66, 1202 (General whether the articles qualify for these regulations are in § 10.847 (claim Note 3(i), Harmonized Tariff Schedule of the preference under the HOPE Act or insist for duty-free treatment) and United States), 1321, 1481, 1484, 1498, 1508, that the owner or producer of the goods §§ 10.844(a)(4)(vi) and 10.848 1623, 1624, 3314; act as importer of record for the (declaration of compliance). This * * * * * transaction and be the party responsible information is required in connection Sections 10.841 through 10.850 also issued for certifying that the articles qualify for with certain claims for duty-free under 19 U.S.C. 2703A. preference. treatment under the HOPE Act and will ■ 2. The subpart O heading is amended be used by CBP to determine eligibility Conclusion by removing the words ‘‘Act of 2006’’ for preferential tariff treatment under and adding in its place the words ‘‘Acts Accordingly, based on the analysis of that Act. The likely respondents are of 2006 and 2008’’. comments received as set forth above business organizations including ■ and the additional considerations importers, exporters and manufacturers. 3. Section 10.841 is revised to read as follows: discussed above, CBP is adopting as a The estimated average annual burden final rule the interim regulations associated with the collection of § 10.841 Applicability. published as CBP Dec. 07–43 with information in this final rule is 39.2 certain changes as discussed above and Title V of Public Law 109–432, hours per respondent or record keeper. entitled the Haitian Hemispheric as set forth below. Under the Paperwork Reduction Act, an Opportunity through Partnership Inapplicability of Delayed Effective agency may not conduct or sponsor, and Encouragement Act of 2006 (HOPE I Date Requirement a person is not required to respond to, Act), amended the Caribbean Basin Section 553(d)(3) of the a collection of information unless it Economic Recovery Act (the CBERA, 19 Administrative Procedure Act (‘‘APA’’) displays a valid OMB control number. U.S.C. 2701–2707) by adding a new (5 U.S.C. 553(d)(3)), permits agencies to Signing Authority section 213A (19 U.S.C. 2703A) to make a rule effective less than 30 days authorize the President to extend This document is being issued in after publication if the rule grants or additional trade benefits to Haiti. Part I, accordance with § 0.1(a)(1) of the CBP recognizes an exemption or relieves a Subtitle D, Title XV of Public Law 110– regulations (19 CFR 0.1(a)(1)) pertaining restriction, or when the agency finds 234, entitled the Haitian Hemispheric to the authority of the Secretary of the that good cause exists for dispensing Opportunity through Partnership Treasury (or his/her delegate) to with a delayed effective date. As these Encouragement Act of 2008 (HOPE II approve regulations related to certain regulations implement the tariff Act) amended certain provisions within customs revenue functions. preference provisions of the HOPE Act section 213A. Section 213A of the and thus grant an exemption from List of Subjects CBERA provides for the duty-free normal duty rates for qualifying articles, treatment of certain apparel articles and 19 CFR Part 10 a delayed effective date is not required. certain wiring sets from Haiti. The provisions of this subpart set forth the Moreover, for this reason, CBP finds that Customs duties and inspection, legal requirements and procedures that good cause exists to make these Imports, Preference programs, Reporting apply for purposes of obtaining duty- regulations effective without a delayed and recordkeeping requirements. free treatment pursuant to CBERA effective date. 19 CFR Part 163 section 213A. Executive Order 12866 and Regulatory ■ Administrative practice and 4. In § 10.842, paragraph (p) is revised Flexibility Act procedure, Customs duties and to read as follows: This document does not meet the inspection, Imports, Reporting and § 10.842 Definitions. criteria for a ‘‘significant regulatory recordkeeping requirements. action’’ as specified in Executive Order * * * * * (p) Wholly assembled in Haiti. 12866 of September 30, 1993 (58 FR 19 CFR Part 178 ‘‘Wholly assembled in Haiti’’ means that 51735, October 1993). In addition, Administrative practice and all components, of which there must be because a notice of proposed procedure, Collections of information, at least two, pre-existed in essentially rulemaking is not required under Imports, Reporting and recordkeeping the same condition as found in the section 553(b) of the APA for the requirements. finished good and were combined to reasons described above, CBP notes that form the finished good in Haiti. Minor the provisions of the Regulatory Amendments to the CBP Regulations attachments and minor embellishments Flexibility Act, as amended (5 U.S.C. ■ Accordingly, the interim rule (for example, applique´s, beads, 601 et seq.), do not apply to this amending parts 10, 163, and 178 of the spangles, embroidery, and buttons) not rulemaking. Accordingly, CBP also CBP regulations (19 CFR parts 10, 163, appreciably affecting the identity of the notes that this rule is not subject to the and 178), which was published at 72 FR good, and minor subassemblies (for regulatory analysis requirements or 34365 on June 22, 2007, is adopted as example, collars, cuffs, plackets, and other requirements of 5 U.S.C. 603 and a final rule with certain changes as pockets), will not affect the 604. discussed above and set forth below. determination of whether a good is Paperwork Reduction Act ‘‘wholly assembled in Haiti’’. PART 10—ARTICLES CONDITIONALLY The collections of information FREE, SUBJECT TO A REDUCED * * * * * contained in these regulations have RATE, ETC. ■ 5. Section 10.843 is amended by previously been reviewed and approved revising the introductory text and by the Office of Management and ■ 1. The general authority citation for paragraphs (b) through (d), and adding Budget in accordance with the part 10, CBP regulations, and the paragraphs (e) through (k) to read as requirements of the Paperwork specific authority for subpart O follows:

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§ 10.843 Articles eligible for duty-free (C) Other T-shirts, but not including (h) Certain sleepwear. Any of the treatment. thermal undershirts; following apparel articles that is wholly The duty-free treatment referred to in (ii) T-shirts for men or boys that are assembled or knit-to-shape in Haiti from § 10.841 of this subpart applies to the classifiable in subheading 6109.90.10 of any combination of fabrics, fabric articles described in paragraphs (a) the HTSUS; components, components knit-to-shape, through (j) of this section that are (iii) The following apparel articles of or yarns, without regard to the source of imported directly from Haiti or the cotton, for men or boys, that are the fabric, fabric components, Dominican Republic into the customs classifiable in subheading 6110.20.20 of components knit-to-shape, or yarns from territory of the United States and to the the HTSUS: which the article is made: articles described in paragraph (k) of (A) Sweatshirts; and (1) Pajama bottoms and other this section that are imported directly (B) Pullovers, other than sweaters, sleepwear for women and girls, of from Haiti into the customs territory of vests, or garments imported as part of cotton, that are classifiable in the United States. playsuits; or subheading 6208.91.30, HTSUS, or of (iv) Sweatshirts for men or boys, of * * * * * man-made fibers, that are classifiable in man-made fibers and containing less subheading 6208.92.00, HTSUS; or (b) Certain woven apparel articles. than 65 percent by weight of man-made (2) Pajama bottoms and other Apparel articles classifiable in Chapter fibers, that are classifiable in sleepwear for girls, of other textile 62 of the HTSUS that are wholly subheading 6110.30.30 of the HTSUS. materials, that are classifiable in assembled or knit-to-shape in Haiti from (e) Other apparel articles. Any of the subheading 6208.99.20, HTSUS. any combination of fabrics, fabric following apparel articles that is wholly components, components knit-to-shape, assembled or knit-to-shape in Haiti from (i) Earned import allowance rule. and yarns, without regard to the source any combination of fabrics, fabric Apparel articles wholly assembled or of the fabric, fabric components, components, components knit-to-shape, knit-to-shape in Haiti from any components knit-to-shape, or yarns from or yarns, without regard to the source of combination of fabrics, fabric which the article is made, subject to the the fabric, fabric components, components, components knit-to-shape, applicable quantitative limits set forth components knit-to-shape, or yarns from or yarns, without regard to the source of in U.S. Note 6(h), Subchapter XX, which the article is made: the fabric, fabric components, Chapter 98, HTSUS. (1) Any apparel article that is of a type components knit-to-shape, or yarns from (c) Brassieres. Apparel articles listed in chapter rule 3, 4, or 5 for which the articles are made, if such classifiable in subheading 6212.10 of the chapter 61 of the HTSUS (as such apparel articles are accompanied by an HTSUS that are wholly assembled or chapter rules are contained in section A earned import allowance certificate knit-to-shape in Haiti from any of the Annex to Presidential issued by the Department of Commerce combination of fabrics, fabric Proclamation 8213 of December 20, that reflects the amount of credits equal components, components knit-to-shape, 2007) as being excluded from the scope to the total square meter equivalents of or yarns, without regard to the source of of such chapter rule, when such chapter such apparel articles, in accordance the fabric, fabric components, rule is applied to determine whether an with the earned import allowance components knit-to-shape, or yarns from apparel article is an originating good for program established by the Secretary of which the article is made. purposes of General Note 29(n), HTSUS, Commerce pursuant to 19 U.S.C. (d) Certain knit apparel articles—(1) except that, for purposes of this 2703A(b)(4)(B). General. Apparel articles classifiable in provision, reference in such chapter (j) Apparel articles of short supply Chapter 61 of the HTSUS (other than rules to subheading 6104.12.00 of the materials. Apparel articles that are those described in paragraph (d)(2) of HTSUS is deemed to refer to subheading wholly assembled or knit-to-shape in this section) that are wholly assembled 6104.19.60 of the HTSUS; or Haiti from any combination of fabrics, or knit-to-shape in Haiti from any (2) Any apparel article (other than fabric components, components knit-to- combination of fabrics, fabric articles to which paragraph (c) of this shape, or yarns, without regard to the components, components, components section applies (brassieres)) that is of a source of the fabrics, fabric components, knit-to-shape, or yarns, without regard type listed in chapter rule 3(a), 4(a), or components knit-to-shape, or yarns from to the source of the fabric, fabric 5(a) for chapter 62 of the HTSUS, as which the article is made, if the fabrics, components, components knit-to-shape, such chapter rules are contained in fabric components, components knit-to- or yarns from which the article is made, paragraph 9 of section A of the Annex shape, or yarns comprising the subject to the applicable quantitative to Presidential Proclamation 8213 of component that determines the tariff limits set forth in U.S. Note 6(j), December 20, 2007. classification of the article are of any of Subchapter XX, Chapter 98, HTSUS. (f) Luggage and similar items. Articles the following: (2) Exclusions. Duty-free treatment for classifiable in subheading 4202.12, (1) Fabrics or yarns, to the extent that the articles described in paragraph (d)(1) 4202.22, 4202.32, or 4202.92 of the apparel articles of such fabrics or yarns of this section will not apply to the HTSUS that are wholly assembled in would be eligible for preferential following: Haiti, without regard to the source of the treatment, without regard to the source (i) The following apparel articles of fabric, components, or materials from of the fabrics or yarns, under Annex 401 cotton, for men or boys, that are which the article is made. of the North American Free Trade classifiable in subheading 6109.10.00 of (g) Headgear. Articles classifiable in Agreement (NAFTA); or the HTSUS: heading 6501, 6502, or 6504, or (2) Fabrics or yarns, to the extent that (A) All white T-shirts, with short subheading 6505.90 of the HTSUS that such fabrics or yarns are designated as hemmed sleeves and hemmed bottom, are wholly assembled, knit-to-shape, or not being available in commercial with crew or round neckline or with V- formed in Haiti from any combination of quantities for purposes of: neck and with a mitered seam at the fabrics, fabric components, components (i) Section 213(b)(2)(A)(v) of the center of the V, and without pockets, knit-to-shape, or yarns, without regard CBERA (19 U.S.C. 2703(b)(2)(A)(v)); trim, or embroidery; to the source of the fabric, fabric (ii) Section 112(b)(5) of the African (B) All white singlets, without components, components knit-to-shape, Growth and Opportunity Act (19 U.S.C. pockets, trim, or embroidery; and or yarns from which the article is made. 3721(b)(5));

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(iii) Section 204(b)(3)(B)(i)(III) or 213A(b)(1) of the CBERA (19 U.S.C. the subsequent applicable one-year 204(b)(3)(B)(ii) of the Andean Trade 2703A(b)(1)) or is subject to the period, the declaration of compliance Preference Act (19 U.S.C. ‘‘General’’ subcolumn of column 1 of described in § 10.848 of this subpart 3203(b)(3)(B)(i)(II) or 3203(b)(3)(B)(ii)); the HTSUS will only be included in an must be submitted to CBP within 30 or annual aggregation under paragraph days following the end of the applicable (iv) Any other provision, relating to (a)(2)(i) or (a)(2)(ii) of this section if the one-year period in which the individual determining whether a textile or apparel producer or entity controlling entry method was used. article is an originating good eligible for production elects, at the time the annual (4) Failure to meet applicable preferential treatment, of a law that aggregation calculation is made, to requirements—(i) Initial applicable one- implements a free trade agreement include such entry in the aggregation. year period. Except as provided in entered into by the United States that is Example. A Haitian producer elects to use paragraph (a)(4)(iii) of this section, if in effect at the time the claim for the annual aggregation method in the initial CBP determines that apparel articles of preferential tariff treatment is made applicable one-year period, and also elects to a producer or entity controlling under § 10.847 of this subpart. include in the aggregation calculation an production that are entered as articles (k) Wiring sets. Any article classifiable entry of apparel articles receiving preferential described in § 10.843(a) of this subpart in subheading 8544.30.00 of the HTSUS, tariff treatment under another preference during the initial applicable one-year as in effect on December 20, 2006, that program. The producer ships to the United period have not met the requirements of is the product or manufacture of Haiti, States four shipments during the initial § 10.843(a) of this subpart or the provided the article satisfies the value- applicable one-year period and all are applicable value-content requirement entered during that period. The first content requirement set forth in shipment of apparel (qualifying for and set forth in paragraph (a)(1) of this § 10.844(b) of this subpart. For purposes receiving preference under the Caribbean section, then: of this paragraph, the term ‘‘product or Basin Trade Partnership Act (CBTPA)) has an * * * * * manufacture of Haiti’’ refers to an article appraised value of $100,000 and meets a (ii) Other applicable one-year periods. that is either: value-content percentage (under § 10.844(a) Except as provided in paragraph (1) Wholly the growth, product, or of this section) of 80%. The second shipment (a)(4)(iii) of this section, if CBP manufacture of Haiti; or of apparel is wholly assembled in Haiti, has determines that apparel articles of a (2) A new or different article of an appraised value of $100,000, and meets a producer or entity controlling value-content percentage of 40%. The third commerce that has been grown, production that are entered as articles produced, or manufactured in Haiti. shipment is wholly assembled in Haiti, has an appraised value of $50,000, and meets a described in § 10.843(a) of this subpart ■ 6. In § 10.844: value-content percentage of 0%. The last during any applicable one-year period ■ a. Paragraphs (a)(2)(iii), (a)(3), and the shipment is wholly assembled in Haiti, has following the initial applicable one-year introductory text of paragraphs (a)(4)(i) an appraised value of $20,000, and meets a period have not met the requirements of and (a)(4)(ii) are revised; value-content requirement of 80%. Taken § 10.843(a) or the applicable value- ■ b. Paragraphs (a)(4)(iii), (a)(4)(iv), and together, the four shipments have an content requirement set forth in (a)(4)(v) are re-designated as paragraphs appraised value of $270,000 and meet a paragraph (a) of this section, then: value-content percentage of 50.4%. The (a)(4)(iv), (a)(4)(v), and (a)(4)(vi), * * * * * respectively, and a new paragraph apparel articles shipped to the United States in the last three shipments would qualify for (iii) Entity controlling production of (a)(4)(iii) is added; apparel articles of a producer also ■ c. The introductory text of re- duty-free treatment under section 213A(b)(1) of the CBERA and § 10.843(a) of this subpart producing for its own account. Where designated paragraph (a)(4)(v) is revised; as the applicable value-content requirement an entity controlling production ■ d. Re-designated paragraph (a)(4)(vi) for the initial applicable one-year period (50 controls the production of apparel is amended by removing the reference to %) is satisfied. This conclusion assumes that: articles, as described in § 10.843(a) of ‘‘(a)(4)(iii)’’ and adding in its place The CBTPA-eligible apparel articles in the this subpart, of a producer that also ‘‘(a)(4)(iv)’’, and by removing the first shipment (that were included in the produces for its own account, the failure reference to ‘‘(a)(4)(iv)’’ and adding in annual aggregation calculation at the election of the producer) were wholly assembled or of apparel articles of that producer to its place ‘‘(a)(4)(v)’’; meet the requirements of § 10.843(a) of ■ e. Paragraph (a)(5)(ii)(D) is amended knit-to-shape in Haiti, as required in this subpart or the applicable value- by removing the words ‘‘under the § 10.844(a)(2)(iii) of this section; and the content requirement set forth in Bipartisan Trade Promotion Authority articles in the last three shipments that were wholly assembled in Haiti satisfy all other paragraph (a) of this section in an Act of 2002’’ and adding in their place applicable requirements set forth in this applicable one-year period, either under the words ‘‘with respect to the United subpart. the annual aggregation method or the States’’; and individual entry method, will not affect ■ f. Paragraph (c)(2) is amended by (3) Election to use the annual the eligibility for duty-free treatment removing the words ‘‘under the aggregation method for an applicable under § 10.843(a) of this subpart of Bipartisan Trade Promotion Authority one-year period. A producer or entity those apparel articles of that producer Act of 2002 (19 U.S.C. 3801 et seq.)’’ controlling production may elect to use which are part of a claim for such and adding in their place the word the individual entry or annual treatment made on behalf of the entity ‘‘thereafter’’. aggregation method in any applicable The revisions read as follows: one-year period and then elect to use controlling production. the other method during the subsequent Example. Importer D, an entity controlling § 10.844 Value-content requirement. applicable one-year period, provided production, purchases apparel articles that (a) * * * that all applicable requirements are met meet the description in § 10.843(a) of this (2) * * * during the applicable one-year period subpart from Haitian Producers A, B, and C (iii) Exclusions from annual preceding the period in which the and enters those articles during the initial aggregation calculation. The entry of an switch is made. If a producer or entity applicable one-year period. Importer D elects to use the annual aggregation method during apparel article that is wholly assembled controlling production using the that period. The three producers also or knit-to-shape in Haiti and is receiving individual entry method in an produce apparel for other U.S. importers and preferential tariff treatment under any applicable one-year period elects to use each producer elects to use the annual provision of law other than section the annual aggregation method during aggregation method. The apparel articles

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purchased by Importer D from the three pursuant to § 10.843(a) of this subpart and the invoices, bills of lading, and producers and entered during the initial during the immediately preceding other shipping documents show the applicable one-year period meet a value- applicable one-year period. United States as the final destination; or content percentage of 51.7%. However, the * * * * * (3) If shipment is through an value-content percentage met by all the intermediate country and the invoices apparel that is wholly assembled in Haiti by ■ 7. Section 10.846 is revised to read as and other documents do not show the Producer C and entered (including the follows: apparel imported by Importer D) during the United States as the final destination, initial applicable one-year period is 49%. As § 10.846 Imported directly. the articles in the shipment are all of the articles, in the aggregate, purchased (a) Textile and apparel articles. To be imported directly only if they: by Importer D from the three producers and (i) Remained under the control of the entered during the initial applicable one-year eligible for duty-free treatment under this subpart, textile and apparel articles customs authority in the intermediate period satisfy the applicable value-content country; described in paragraphs (a) through (j) requirement (50%), all of these articles are (ii) Did not enter into the commerce of § 10.843 of this subpart must be entitled to duty-free treatment under section of the intermediate country except for 213A(b)(1) of the CBERA and § 10.843(a) of imported directly from Haiti or the the purpose of a sale other than at retail; this subpart, assuming all other applicable Dominican Republic into the customs requirements are met. The failure of Producer and territory of the United States. For (iii) Have not been subjected to C to meet the 50% value-content requirement purposes of this requirement, the words with respect to all of the articles that it operations other than loading and wholly assembled in Haiti and entered ‘‘imported directly from Haiti or the unloading, and other activities during the initial applicable one-year period Dominican Republic’’ mean: necessary to preserve the articles in will not prevent duty-free status being (1) Direct shipment from Haiti or the good condition. claimed for the articles purchased by Dominican Republic to the United (c) Documentary evidence. An Importer D from Producer C. Therefore, the States without passing through the importer making a claim for duty-free consequences of Producer C’s failure to meet territory of any intermediate country; treatment under § 10.847 of this subpart the 50% value-content requirement include (2) If shipment is from Haiti or the may be required to demonstrate, to the denial of preferential tariff treatment for Dominican Republic to the United CBP’s satisfaction, that the articles were all articles that are wholly assembled in Haiti States through the territory of an by Producer C and entered during the initial ‘‘imported directly’’ as that term is applicable one-year period, except for those intermediate country, the articles in the defined in paragraphs (a) and (b) of this articles sold by Producer C to Importer D. An shipment do not enter into the section. An importer may demonstrate additional consequence of Producer C’s commerce of the intermediate country compliance with this section by failure to meet the value-content requirement and the invoices, bills of lading, and submitting documentary evidence. Such in the initial applicable one-year period is other shipping documents show the evidence may include, but is not limited that articles wholly assembled in Haiti by United States as the final destination; or to, bills of lading, airway bills, packing Producer C and entered during succeeding (3) If shipment is through an lists, commercial invoices, receiving applicable one-year periods will be ineligible intermediate country and the invoices for duty-free treatment until the appropriate and inventory records, and customs increased value-content requirement has and other documents do not show the entry and exit documents. been met (see § 10.844(a)(4)(i)(C) of this United States as the final destination, ■ 8. Section 10.847 is amended by subpart), except to the extent the articles the articles in the shipment are revising paragraphs (a)(1) through (5) qualify for preference under § 10.845 of this imported directly only if they: and adding paragraphs (a)(6) through subpart. (i) Remained under the control of the (12) to read as follows: * * * * * customs authority in the intermediate § 10.847 Filing of claim for duty-free (v) Articles of a new producer or country; treatment. entity controlling production. Apparel (ii) Did not enter into the commerce articles of a new producer or entity of the intermediate country except for (a) * * * (1) Subheading 9820.61.25 for apparel controlling production electing to use the purpose of a sale other than at retail; articles described in § 10.843(a) of this the annual aggregation method for and subpart for which the individual entry purposes of meeting the applicable (iii) Have not been subjected to method is used for purposes of meeting value-content requirement must first operations other than loading and the applicable value-content meet the increased value-content unloading, and other activities requirement set forth in § 10.844(a) of percentage specified in paragraph necessary to preserve the articles in this subpart; (a)(4)(iv) of this section as a prerequisite good condition. (2) Subheading 9820.61.30 for apparel to receiving duty-free treatment during (b) Wiring sets. To be eligible for duty- articles described in § 10.843(a) of this a succeeding applicable one-year free treatment under this subpart, subpart for which the annual period. Apparel articles of a new articles described in paragraph (k) of aggregation method is used for purposes producer or entity controlling § 10.843 of this subpart must be of meeting the applicable value-content production electing to use the imported directly from Haiti into the requirement set forth in § 10.844(a) of individual entry method are not subject customs territory of the United States. this subpart; to the requirement of first meeting the For purposes of this requirement, the (3) Subheading 9820.62.05 for apparel increased value-content percentage as a words ‘‘imported directly from Haiti’’ articles described in § 10.843(b) of this prerequisite to receiving duty-free mean: subpart; treatment during the first year of (1) Direct shipment from Haiti to the (4) Subheading 9820.62.12 for participation or in any succeeding United States without passing through brassieres described in § 10.843(c) of applicable one-year period. For the territory of any intermediate this subpart; purposes of this paragraph, a ‘‘new country; (5) Subheading 9820.61.35 for apparel producer or entity controlling (2) If shipment is from Haiti to the articles described in § 10.843(d) of this production’’ is a producer or entity United States through the territory of an subpart; controlling production that did not intermediate country, the articles in the (6) Subheading 9820.61.40 for apparel produce or control production of shipment do not enter into the articles described in § 10.843(e) of this articles that were entered as articles commerce of the intermediate country subpart;

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(7) Subheading 9820.42.05 for articles the United States and Burma to operate will not result in an annual effect on the described in § 10.843(f) of this subpart; their diplomatic missions, to allow economy of $100 million or more; a (8) Subheading 9820.65.05 for articles United States citizens to visit Burma, to major increase in costs or prices; or described in § 10.843(g) of this subpart; permit authorized Burmese to conduct adverse effects on competition, (9) Subheading 9820.62.20 for articles business at the United Nations, or as employment, investment, productivity, described in § 10.843(h) of this subpart; required by other applicable innovation, or the ability of United (10) Subheading 9820.62.25 for international agreements. Since States-based companies to compete with articles described in § 10.843(i) of this diplomatic travel must often be foreign based companies in domestic subpart; approved in a short time frame, it would and import markets. (11) Subheading 9820.62.30 for be impractical to issue a new regulation articles described in § 10.843(j) of this for each instance of Burmese diplomatic Executive Order 12866 subpart; and travel. This rule, then, will allow the Although this rule is not subject to (12) Subheading 9820.85.44 for wiring Secretary to comply with the regulatory Executive Order 12866, the Department sets described in § 10.843(k) of this requirement set out in Section 5(f)(2) of has reviewed it to ensure its consistency subpart. the Act while making exceptions to with the regulatory philosophy and * * * * * Section 5(a) in accordance with principles set forth in the Executive Department of State regulations. Order, and has determined that the Jayson P. Ahern, benefits of the rule justify its costs. Acting Commissioner, Customs and Border Regulatory Findings Executive Orders 12372 and 13132: Protection. Administrative Procedure Act Approved: September 25, 2008. Federalism This regulation involves a foreign Timothy E. Skud, affairs function of the United States and, This regulation will not have Deputy Assistant Secretary of the Treasury. therefore, in accordance with 5 U.S.C. substantial direct effects on the States, [FR Doc. E8–23008 Filed 9–29–08; 8:45 am] 553(a)(1), is not subject to the rule on the relationship between the national BILLING CODE 9111–14–P making procedures set forth in 5 U.S.C. government and the States, or the 553. distribution of power and responsibilities among the various Regulatory Flexibility Act/Executive DEPARTMENT OF STATE levels of government. Nor will the rule Order 13272: Small Business have federalism implications warranting 22 CFR Part 41 Because this final rule is exempt from the application of Executive Orders No. 12372 and No. 13132. [Public Notice 6378] notice and comment rulemaking under 5 U.S.C. 553, it is exempt from the Paperwork Reduction Act Visas: Documentation of regulatory flexibility analysis This rule does not impose information Nonimmigrants Under the Immigration requirements set forth at sections 603 collection requirements under the and Nationality Act, as Amended and 604 of the Regulatory Flexibility Act (5 U.S.C. 603 and 604). Nonetheless, provisions of the Paperwork Reduction AGENCY: Department of State. consistent with section 605(b) of the Act, 44 U.S.C., Chapter 35. ACTION: Final rule. Regulatory Flexibility Act (5 U.S.C. List of Subjects in 22 CFR Part 41 605(b)), the Department certifies that SUMMARY: This rule establishes this rule will not have a significant Aliens, Foreign officials, Immigration, regulatory exceptions to travel economic impact on a substantial Nonimmigrants, Visas. restrictions, established in the Tom number of small entities. This rule ■ Accordingly, for the reasons set forth Lantos Block Burmese JADE Act, that regulates individual aliens who seek above, 22 CFR part 41 is amended as were put in place for Burmese nationals. consideration for nonimmigrant visas follows: The rule allows the Department to and does not affect any small entities, as exempt certain Burmese diplomats and defined in 5 U.S.C. 601(6). PART 41—[AMENDED] officials from the travel restrictions. The Unfunded Mandates Reform Act of ■ 1. The authority citation for part 41 DATES: Effective Date: This rule is 1995 continues to read as follows: effective September 30, 2008. Authority: 8 U.S.C. 1104; Pub. L. 105–277, FOR FURTHER INFORMATION CONTACT: Section 202 of the Unfunded 112 Stat. 2681–795 through 2681–801; 8 Lawrence B. Kurland, Jr., Legislation Mandates Reform Act of 1995 (UFMA), 2 U.S.C. 1532, generally requires U.S.C. 1185 note (section 7209 of Pub. L. and Regulations Division, Visa Services, 108–458). Department of State, 2401 E Street, NW., agencies to prepare a statement before Room L–603D, Washington, DC 20520– proposing any rule that may result in an ■ 2. Section 41.21 is amended by adding 0106, (202) 663–1202, e-mail annual expenditure of $100 million or paragraph (d)(4): ([email protected]). more by State, local, or tribal governments, or by the private sector. § 41.21 Foreign officials—general. SUPPLEMENTARY INFORMATION: On July This rule will not result in any such (d) * * * 29, 2008, the President signed into law expenditure, nor will it significantly or (4) Notwithstanding the provisions of the Tom Lantos Block Burmese JADE uniquely affect small governments. Section 5(a) and consistent with Section (Junta’s Anti-Democratic Efforts) Act of 5(f)(2) of the Tom Lantos Block Burmese 2008, Public Law 110–286, authorizing The Small Business Regulatory JADE (Junta’s Anti-Democratic Efforts) a broad range of new measures against Enforcement Fairness Act of 1996 Act of 2008, Public Law 110–286, visas the Burmese regime. Among these This rule is not a major rule as may be issued to visa applicants who measures is a new category of visa defined by 5 U.S.C. 804, for purposes of are otherwise ineligible for a visa to inadmissibility, detailed in Section 5(a) congressional review of agency travel to the United States under section of the Act. However, the Act permits the rulemaking under the Small Business 5(a)(1) of the Act: Secretary of State to issue, by regulation, Regulatory Enforcement Fairness Act of (i) To permit the United States and exceptions to Section 5(a), in order for 1996, Public Law 104–121. This rule Burma to operate their diplomatic

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missions, and to permit the United FOR FURTHER INFORMATION CONTACT: If Guard in a Notice to be published in the States to conduct other official United you have questions on this document, Federal Register.’’ Through this Notice, States Government business in Burma; call LCDR Jonathan Maiorine, telephone the Coast Guard informs the owners and (ii) To permit the United States to 1–877–687–2243. If you have questions operators of facilities subject to 33 CFR comply with the United Nations on viewing the docket, call Renee V. 105.115(e) located within COTP Zones Headquarters Agreement and other Wright, Program Manager, Docket Honolulu, Prince William Sound, applicable international agreements. Operations, telephone 202–493–0402. Southeast Alaska, and Western Alaska Dated: September 22, 2008. SUPPLEMENTARY INFORMATION: that the deadline for their compliance Janice L. Jacobs, I. Regulatory History with Coast Guard and TSA TWIC requirements is February 12, 2009. Assistant Secretary for Consular Affairs, On May 22, 2006, the Department of Department of State. Homeland Security (DHS) through the The TSA and Coast Guard have [FR Doc. E8–22956 Filed 9–29–08; 8:45 am] United States Coast Guard (Coast Guard) determined that this date provides BILLING CODE 4710–06–P and the Transportation Security sufficient time for the estimated Administration (TSA) published a joint population required to obtain TWICs for notice of proposed rulemaking entitled these COTP Zones to enroll and for TSA DEPARTMENT OF HOMELAND ‘‘Transportation Worker Identification to complete the necessary security SECURITY Credential (TWIC) Implementation in threat assessments for those enrollment the Maritime Sector; Hazardous applications. We strongly encourage Coast Guard Materials Endorsement for a persons requiring unescorted access to Commercial Driver’s License’’ in the facilities regulated by 33 CFR part 105 33 CFR Part 105 Federal Register (71 FR 29396). This and located in one of these COTP Zones was followed by a 45-day comment [Docket Nos. TSA–2006–24191; USCG– to enroll for their TWIC as soon as period and four public meetings. The possible, if they haven’t already. 2006–24196] Coast Guard and TSA issued a joint Additionally, we note that the TWIC final rule, under the same title, on Transportation Worker Identification Final Rule advises owners and operators January 25, 2007 (72 FR 3492) Credential (TWIC) Implementation in (hereinafter referred to as the original of MTSA regulated facilities of their the Maritime Sector; Hazardous TWIC final rule). The preamble to that responsibility to notify employees of the Materials Endorsement for a final rule contains a discussion of all the TWIC requirements. Specifically, 33 Commercial Driver’s License comments received on the NPRM, as CFR 105.200(b)(14) requires owners or operators of MTSA regulated facilities to AGENCY: United States Coast Guard; well as a discussion of the provisions DHS. found in the original TWIC final rule, ‘‘[i]nform facility personnel of their which became effective on March 26, responsibility to apply for and maintain ACTION: Notice of compliance date, a TWIC, including the deadlines and Captain of the Port Zones Honolulu, 2007. On May 7, 2008, the Coast Guard and methods for such applications.’’ Prince William Sound, Southeast TSA issued a final rule to realign the Alaska, and Western Alaska. Information on enrollment procedures, compliance date for implementation of as well as a link to the pre-enrollment SUMMARY: This document informs the Transportation Worker Web site (which will also enable an owners and operators of facilities Identification Credential. 73 FR 25562. applicant to make an appointment for located within Captain of the Port Zones The date by which mariners need to enrollment), may be found at Honolulu, Prince William Sound, obtain a TWIC, and by which owners https://twicprogram.tsa.dhs.gov/ Southeast Alaska, and Western Alaska and operators of vessels and outer TWICWebApp/. that they must implement access control continental shelf facilities must implement access control procedures You may also visit our Web site at procedures utilizing TWIC no later than homeport.uscg.mil/twic for a framework February 12, 2009. utilizing TWIC, is now April 15, 2009 instead of September 25, 2008. Owners showing expected future compliance DATES: The compliance date for the and operators of facilities that must dates by COTP Zone. This list is subject TWIC regulations found in 33 CFR part comply with 33 CFR part 105 will still to change; changes in expected future 105 for Captain of the Port Zones be subject to earlier, rolling compliance compliance dates will appear on that Honolulu, Prince William Sound, dates, as set forth in 33 CFR 105.115(e). Web site. The exact compliance date for Southeast Alaska, and Western Alaska is The Coast Guard will continue to COTP Zones will also be announced in February 12, 2009. announce rolling compliance dates, as the Federal Register at least 90 days in ADDRESSES: Comments and material provided in 33 CFR 105.115(e), at least advance. received from the public, as well as 90 days in advance via notices documents mentioned in this document published in the Federal Register. The Dated: September 23, 2008. as being available in the docket, are part final compliance date for all COTP Mark P. O’Malley, of dockets TSA–2006–24191 and Zones will not be later than April 15, Captain, U.S. Coast Guard, Chief, Ports and USCG–2006–24196, and are available 2009. Facilities Activities. for inspection or copying at the Docket [FR Doc. E8–22836 Filed 9–29–08; 8:45 am] II. Notice of Facility Compliance Date— Management Facility, U.S. Department BILLING CODE 4910–15–P of Transportation, West Building COTP Zones Honolulu, Prince William Ground Floor, Room W12–140, 1200 Sound, Southeast Alaska, and Western New Jersey Avenue, SE., Washington, Alaska DC 20590, between 9 a.m. and 5 p.m., Title 33 CFR 105.115(e) currently Monday through Friday, except Federal states that ‘‘[f]acility owners and holidays. You may also find this docket operators must be operating in on the Internet at http:// accordance with the TWIC provisions in www.regulations.gov. this part by the date set by the Coast

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DEPARTMENT OF HOMELAND appropriate public body adopts made, this final rule may take effect SECURITY adequate floodplain management within 30 days. measures with effective enforcement National Environmental Policy Act. Federal Emergency Management measures. The communities listed in This rule is categorically excluded from Agency this document no longer meet the the requirements of 44 CFR Part 10, statutory requirement for compliance Environmental Considerations. No 44 CFR Part 64 with program regulations, 44 CFR Part environmental impact assessment has [Docket No. FEMA–8043] 59. Accordingly, the communities will been prepared. be suspended on the effective date in Regulatory Flexibility Act. The Suspension of Community Eligibility the third column. As of that date, flood Administrator has determined this rule insurance will no longer be available in is exempt from the requirements of the AGENCY: Federal Emergency the community. However, some of these Regulatory Flexibility Act because the Management Agency, Department of communities may adopt and submit the National Flood Insurance Act of 1968, Homeland Security. required documentation of legally as amended, 42 U.S.C. 4022, prohibits ACTION: Final rule. enforceable floodplain management flood insurance coverage unless an measures after this rule is published but appropriate public body adopts SUMMARY: This rule identifies prior to the actual suspension date. adequate floodplain management communities, where the sale of flood These communities will not be measures with effective enforcement insurance has been authorized under suspended and will continue their measures. The communities listed no the National Flood Insurance Program eligibility for the sale of insurance. A longer comply with the statutory (NFIP), that are scheduled for notice withdrawing the suspension of requirements, and after the effective suspension on the effective dates listed the communities will be published in date, flood insurance will no longer be within this rule because of the Federal Register. available in the communities unless noncompliance with the floodplain Previously, FEMA identified the remedial action takes place. management requirements of the Special Flood Hazard Areas (SFHAs) in program. If the Federal Emergency Regulatory Classification. This final these communities by publishing a Management Agency (FEMA) receives rule is not a significant regulatory action Flood Insurance Rate Map (FIRM). The documentation proving the community under the criteria of section 3(f) of date of the FIRM, if one has been has adopted the required floodplain Executive Order 12866 of September 30, published, is indicated in the fourth management measures prior to the 1993, Regulatory Planning and Review, column of the table. No direct Federal effective suspension date given in this 58 FR 51735. financial assistance (except assistance rule, the suspension will not occur and Executive Order 13132, Federalism. pursuant to the Robert T. Stafford a notice will be provided by publication This rule involves no policies that have Disaster Relief and Emergency in the Federal Register on a subsequent federalism implications under Executive Assistance Act not in connection with a date. Order 13132. flood) may legally be provided for Executive Order 12988, Civil Justice DATES: Effective Dates: The effective construction or acquisition of buildings Reform. This rule meets the applicable date of the scheduled suspension for in identified SFHAs for communities standards of Executive Order 12988. each community is the third date not participating in the NFIP, if they Paperwork Reduction Act. This rule (‘‘Susp.’’) listed in the third column of have been identified as having does not involve any collection of the following tables. floodprone areas on the initial FEMA information for purposes of the FOR FURTHER INFORMATION CONTACT: If flood map for the community for more Paperwork Reduction Act, 44 U.S.C. you want to determine whether a than a year (section 202(a) of the Flood 3501 et seq. particular community was suspended Disaster Protection Act of 1973, 42 on the suspension date or obtain U.S.C. 4106(a), as amended). This List of Subjects in 44 CFR Part 64 additional information, contact David prohibition against certain types of Flood insurance, Floodplains. Stearrett, FEMA, Mitigation Directorate, Federal assistance becomes effective for ■ 500 C Street, SW., Washington, DC the communities listed on the date Accordingly, 44 CFR Part 64 is 20472, (202) 646–2953. shown in the last column. The amended as follows: SUPPLEMENTARY INFORMATION: The NFIP Administrator finds the notice and PART 64—[AMENDED] enables property owners to purchase public comment under 5 U.S.C. 553(b) flood insurance which is generally not are impracticable and unnecessary ■ 1. The authority citation for Part 64 otherwise available. In return, because the communities listed in this continues to read as follows: communities agree to adopt and final rule have been adequately notified. Authority: 42 U.S.C. 4001 et seq.; administer local floodplain management Each community receives 6-month, Reorganization Plan No. 3 of 1978, 3 CFR, aimed at protecting lives and new 90-day, and 30-day notification letters 1978 Comp.; p. 329; E.O. 12127, 44 FR 19367, construction from future flooding. addressed to the Chief Executive Officer 3 CFR, 1979 Comp.; p. 376. Section 1315 of the National Flood stating the community will be Insurance Act of 1968, as amended, 42 suspended unless the required § 64.6 [Amended] U.S.C. 4022, prohibits flood insurance floodplain management measures are ■ 2. The tables published under the coverage as authorized under the NFIP, met prior to the effective suspension authority of § 64.6 are amended as 42 U.S.C. 4001 et seq.; unless an date. Since these notifications were follows:

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Date certain Federal assist- State and location Community Effective date authorization/cancellation of Current effective ance no longer No. sale of flood insurance in community map date available in SFHAs

Region I Connecticut: Avon, Town of, Hartford County ...... 090021 October 6, 1972, Emerg; May 16, 1977, Sept. 26, 2008 .. Sept. 26, 2008. Reg; September 26, 2008, Susp. Bloomfield, Town of, Hartford County... 090122 February 18, 1972, Emerg; August 15, ...... do ...... Do. 1977, Reg; September 26, 2008, Susp. Bristol, City of, Hartford County ...... 090023 May 2, 1975, Emerg; November 18, 1981, ...... do ...... Do. Reg; September 26, 2008, Susp. Burlington, Town of, Hartford County .... 090145 April 14, 1975, Emerg; June 1, 1981, Reg; ...... do ...... Do. September 26, 2008, Susp. East Granby, Town of, Hartford County 090025 April 9, 1974, Emerg; January 6, 1982, ...... do ...... Do. Reg; September 26, 2008, Susp. East Hartford, Town of, Hartford County 090026 December 29, 1972, Emerg; December 18, ...... do ...... Do. 1979, Reg; September 26, 2008, Susp. Enfield, Town of, Hartford County ...... 090028 April 4, 1974, Emerg; March 28, 1980, Reg; ...... do ...... Do. September 26, 2008, Susp. Farmington, Town of, Hartford County.. 090029 November 26, 1971, Emerg; August 15, ...... do ...... Do. 1977, Reg; September 26, 2008, Susp. Glastonbury, Town of, Hartford County 090124 December 15, 1972, Emerg; June 15, 1978, ...... do ...... Do. Reg; September 26, 2008, Susp. Hartland, Town of, Hartford County ...... 090146 January 14, 1975, Emerg; December 16, ...... do ...... Do. 1980, Reg; September 26, 2008, Susp. Manchester, Town of, Hartford County 090031 February 5, 1974, Emerg; August 16, 1982, ...... do ...... Do. Reg; September 26, 2008, Susp. Marlborough, Town of, Hartford County 090148 February 5, 1975, Emerg; May 17, 1982, ...... do ...... Do. Reg; September 26, 2008, Susp. New Britain, City of, Hartford County .... 090032 August 22, 1973, Emerg; July 16, 1981, ...... do ...... Do. Reg; September 26, 2008, Susp. Newington, Town of, Hartford County ... 090033 July 2, 1974, Emerg; October 16, 1979, ...... do ...... Do. Reg; September 26, 2008, Susp. Plainville, Town of, Hartford County ...... 090034 May 29, 1974, Emerg; November 19, 1980, ...... do ...... Do. Reg; September 26, 2008, Susp. Simsbury, Town of, Hartford County ..... 090035 December 10, 1971, Emerg; May 16, 1977, ...... do ...... Do. Reg; September 26, 2008, Susp. South Windsor, Town of, Hartford 090036 July 25, 1974, Emerg; May 1, 1980, Reg; ...... do ...... Do. County. September 26, 2008, Susp. West Hartford, Town of, Hartford Coun- 095082 June 19, 1970, Emerg; September 24, ...... do ...... Do. ty. 1971, Reg; September 26, 2008, Susp. Wethersfield, Town of, Hartford County 090040 April 14, 1972, Emerg; May 2, 1977, Reg; ...... do ...... Do. September 26, 2008, Susp. Windsor, Town of, Hartford County...... 090041 June 25, 1975, Emerg; September 29, ...... do ...... Do. 1978, Reg; September 26, 2008, Susp. Region II New York: Buffalo, City of, Erie County ...... 360230 January 16, 1974, Emerg; November 18, ...... do ...... Do. 1981, Reg; September 26, 2008, Susp. Gowanda, Village of, Erie County ...... 360075 June 23, 1972, Emerg; June 1, 1977, Reg; ...... do ...... Do. September 26, 2008, Susp. Holland, Town of, Erie County ...... 360245 July 23, 1975, Emerg; May 1, 1979, Reg; ...... do ...... Do. September 26, 2008, Susp. Tonawanda, City of, Erie County ...... 360259 August 21, 1974, Emerg; August 1, 1979, ...... do ...... Do. Reg; September 26, 2008, Susp. Wales, Town of, Erie County ...... 360261 July 23, 1975, Emerg; August 15, 1979, ...... do ...... Do. Reg; September 26, 2008, Susp. Williamsville, Village of, Erie County ..... 360263 July 12, 1974, Emerg; March 1, 1982, Reg; ...... do ...... Do. September 26, 2008, Susp. Region III Pennsylvania: Allison, Township, Clinton County ...... 421534 November 11, 1975, Emerg; September 3, ...... do ...... Do. 1980, Reg; September 26, 2008, Susp. Avis, Borough, Clinton County ...... 420318 June 4, 1973, Emerg; January 16, 1980, ...... do ...... Do. Reg; September 26, 2008, Susp. Bald Eagle, Township, Clinton County .. 420319 May 22, 1973, Emerg; February 4, 1981, ...... do ...... Do. Reg; September 26, 2008, Susp. Beech Creek, Borough, Clinton County 420320 June 3, 1974, Emerg; August 2, 1990, Reg; ...... do ...... Do. September 26, 2008, Susp. Beech Creek, Township, Clinton County 420321 August 30, 1973, Emerg; September 5, ...... do ...... Do. 1990, Reg; September 26, 2008, Susp.

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Date certain Federal assist- State and location Community Effective date authorization/cancellation of Current effective ance no longer No. sale of flood insurance in community map date available in SFHAs

Castanea, Township, Clinton County .... 420322 April 10, 1973, Emerg; February 2, 1977, ...... do ...... Do. Reg; September 26, 2008, Susp. Chapman, Township, Clinton County.... 420323 August 29, 1973, Emerg; December 18, ...... do ...... Do. 1979, Reg; September 26, 2008, Susp. Colebrook, Township, Clinton County ... 420342 July 25, 1973, Emerg; June 15, 1981, Reg; ...... do ...... Do. September 26, 2008, Susp. Crawford, Township, Clinton County..... 421535 March 17, 1977, Emerg; September 1, ...... do ...... Do. 1986, Reg; September 26, 2008, Susp. Dunnstable, Township, Clinton County 420325 May 23, 1973, Emerg; March 1, 1977, Reg; ...... do ...... Do. September 26, 2008, Susp. East Keating, Township, Clinton County 421536 December 12, 1974, Emerg; October 1, ...... do ...... Do. 1986, Reg; September 26, 2008, Susp. Flemington, Borough, Clinton County ... 420326 March 9, 1973, Emerg; February 2, 1977, ...... do ...... Do. Reg; September 26, 2008, Susp. Gallagher, Township, Clinton County .... 421537 July 21, 1982, Emerg; September 1, 1986, ...... do ...... Do. Reg; September 26, 2008, Susp. Greene, Township, Clinton County ...... 421538 October 14, 1975, Emerg; September 1, ...... do ...... Do. 1986, Reg; September 26, 2008, Susp. Grugan, Township, Clinton County ...... 421539 April 6, 1977, Emerg; December 1, 1986, ...... do ...... Do. Reg; September 26, 2008, Susp. Lamar, Township, Clinton County ...... 420327 July 9, 1973, Emerg; March 16, 1988, Reg; ...... do ...... Do. September 26, 2008, Susp. Leidy, Township, Clinton County ...... 421540 February 17, 1977, Emerg; September 1, ...... do ...... Do. 1986, Reg; September 26, 2008, Susp. Lock Haven, City, Clinton County ...... 420328 November 17, 1972, Emerg; February 2, ...... do ...... Do. 1977, Reg; September 26, 2008, Susp. Logan, Township, Clinton County ...... 421541 October 14, 1975, Emerg; May 1, 1986, ...... do ...... Do. Reg; September 26, 2008, Susp. Loganton, Township, Clinton County .... 421533 September 8, 1982, Emerg; September 1, ...... do ...... Do. 1986, Reg; September 26, 2008, Susp. Mill Hall, Borough, Clinton County ...... 420330 April 17, 1973, Emerg; February 16, 1977, ...... do ...... Do. Reg; September 26, 2008, Susp. Noyes, Township, Clinton County ...... 420331 July 27, 1973, Emerg; November 5, 1980, ...... do ...... Do. Reg; September 26, 2008, Susp. Pine Creek, Township, Clinton County 420332 April 24, 1973, Emerg; April 1, 1977, Reg; ...... do ...... Do. September 26, 2008, Susp. Porter, Township, Clinton County ...... 420333 June 1, 1973, Emerg; July 15, 1988, Reg; ...... do ...... Do. September 26, 2008, Susp. Renovo, Borough, Clinton County ...... 420334 February 9, 1973, Emerg; December 28, ...... do ...... Do. 1976, Reg; September 26, 2008, Susp. South Renovo, Borough, Clinton Coun- 420335 June 18, 1974, Emerg; February 2, 1977, ...... do ...... Do. ty. Reg; September 26, 2008, Susp. Wayne, Township, Clinton County ...... 420336 June 3, 1974, Emerg; November 1, 1979, ...... do ...... Do. Reg; September 26, 2008, Susp. West Keating, Township, Clinton Coun- 421542 June 15, 1982, Emerg; October 1, 1986, ...... do ...... Do. ty. Reg; September 26, 2008, Susp. Woodward, Township, Clinton County .. 420337 March 16, 1973, Emerg; January 16, 1980, ...... do ...... Do. Reg; September 26, 2008, Susp. Virginia: Henry County, Unincorporated Areas ... 510078 October 18, 1973, Emerg; November 5, ...... do ...... Do. 1980, Reg; September 26, 2008, Susp. Pulaski, Town, Pulaski County ...... 510126 November 8, 1973, Emerg; August 1, 1978, ...... do ...... Do. Reg; September 26, 2008, Susp. Pulaski County, Unincorporated Areas 510125 September 27, 1973, Emerg; September ...... do ...... Do. 29, 1978, Reg; September 26, 2008, Susp. Ridgeway, Town, Henry County ...... 510079 June 10, 1975, Emerg; November 6, 1981, ...... do ...... Do. Reg; September 26, 2008, Susp. Region IV Georgia: Allenhurst, Town of, Liberty County ...... 130350 May 6, 1975, Emerg; June 17, 1986, Reg; ...... do ...... Do. September 26, 2008, Susp. Aragon, City of, Polk County ...... 130152 December 19, 1973, Emerg; September 2, ...... do ...... Do. 1988, Reg; September 26, 2008, Susp. Buchanan, City of, Haralson County ..... 130336 April 9, 1976, Emerg; December 15, 1990, ...... do ...... Do. Reg; September 26, 2008, Susp. Byron, City of, Peach County ...... 130374 January 15, 1976, Emerg; July 3, 1986, ...... do ...... Do. Reg; September 26, 2008, Susp. Carnesville, City of, Franklin County ..... 130082 June 4, 1975, Emerg; September 4, 1985, ...... do ...... Do. Reg; September 26, 2008, Susp.

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Date certain Federal assist- State and location Community Effective date authorization/cancellation of Current effective ance no longer No. sale of flood insurance in community map date available in SFHAs

Chattooga County, Unincorporated 130036 April 13, 1989, Emerg; February 17, 1993, ...... do ...... Do. Areas. Reg; September 26, 2008, Susp. Crawford County, Unincorporated Areas 130302 August 12, 1997, Emerg; August 12, 1997, ...... do ...... Do. Reg; September 26, 2008, Susp. Dahlonega, City of, Lumpkin County .... 130129 December 17, 1976, Emerg; September 18, ...... do ...... Do. 1991, Reg; September 26, 2008, Susp. Dawson County, Unincorporated Areas 130304 April 29, 1985, Emerg; December 15, 1990, ...... do ...... Do. Reg; September 26, 2008, Susp. Dawsonville, City of, County ...... 130064 March 14, 1977, Emerg; May 21, 1982, ...... do ...... Do. Reg; September 26, 2008, Susp. Eatonton, City of, Putnam County ...... 130218 July 3, 1975, Emerg; June 19, 1989, Reg; ...... do ...... Do. September 26, 2008, Susp. Flemington, City of, Liberty County ...... 130124 November 27, 1982, Emerg; May 17, 1982, ...... do ...... Do. Reg; September 26, 2008, Susp. Forsyth, City of, Monroe County ...... 130359 August 12, 1994, Emerg; —, Reg; Sep- ...... do ...... Do. tember 26, 2008, Susp. Fort Valley, City of, Peach County ...... 130148 March 13, 1975, Emerg; June 25, 1976, ...... do ...... Do. Reg; September 26, 2008, Susp. Franklin County, Unincorporated Areas 130659 September 19, 2005, Emerg; —, Reg; Sep- ...... do ...... Do. tember 26, 2008, Susp. Franklin Springs, City of, Franklin 130313 March 11, 1980, Emerg; May 28, 1982, ...... do ...... Do. County. Reg; September 26, 2008, Susp. Hahira, City of, Lowndes County ...... 130352 May 5, 1976, Emerg; May 15, 1986, Reg; ...... do ...... Do. September 26, 2008, Susp. Haralson County, Unincorporated Areas 130495 January 16, 1987, Emerg; June 15, 1988, ...... do ...... Do. Reg; September 26, 2008, Susp. Liberty County, Unincorporated Areas .. 130123 January 22, 1975, Emerg; December 1, ...... do ...... Do. 1983, Reg; September 26, 2008, Susp. Long County, Unincorporated Areas ..... 130127 January 7, 1976, Emerg; September 27, ...... do ...... Do. 1985, Reg; September 26, 2008, Susp. Ludowici, City of, Long County ...... 130128 May 21, 2007, Emerg; May 21, 2007, Reg; ...... do ...... Do. September 26, 2008, Susp. Lumpkin County, Unincorporated Areas 130354 June 14, 2002, Emerg; June 14, 2002, Reg; ...... do ...... Do. September 26, 2008, Susp. Midway, City of, Liberty County ...... 130351 July 22, 1975, Emerg; September 30, 1981, ...... do ...... Do. Reg; September 26, 2008, Susp. Peach County, Unincorporated Areas ... 130373 July 24, 1975, Emerg; July 3, 1990, Reg; ...... do ...... Do. September 26, 2008, Susp. Plainville, City of, Gordon County ...... 130319 February 4, 1976, Emerg; June 18, 1987, ...... do ...... Do. Reg; September 26, 2008, Susp. Putnam County, Unincorporated Areas 130540 October 23, 1995, Emerg; —, Reg; Sep- ...... do ...... Do. tember 26, 2008, Susp. Riceboro, City of, Liberty County ...... 130126 June 26, 1975, Emerg; November 4, 1981, ...... do ...... Do. Reg; September 26, 2008, Susp. Roberta, City of, Crawford County ...... 130303 March 22, 1976, Emerg; September 29, ...... do ...... Do. 1986, Reg; September 26, 2008, Susp. Stephens County, Unincorporated 130391 May 6, 1975, Emerg; August 15, 1984, ...... do ...... Do. Areas. Reg; September 26, 2008, Susp. Summerville, City of, Chattooga County 130037 February 11, 1974, Emerg; August 15, ...... do ...... Do. 1984, Reg; September 26, 2008, Susp. Thunderbolt, City of, Chatham County .. 130460 April 22, 1980, Emerg; July 2, 1987, Reg; ...... do ...... Do. September 26, 2008, Susp. Toccoa, City of, Stephens County ...... 130313 June 20, 1975, Emerg; December 4, 1984, ...... do ...... Do. Reg; September 26, 2008, Susp. Valdosta, City of, Lowndes County ...... 130200 December 17, 1973, Emerg; January 19, ...... do ...... Do. 1978, Reg; September 26, 2008, Susp. Vernonburg, Village of, Chatham Coun- 135165 March 19, 1971, Emerg; July 27, 1973, ...... do ...... Do. ty. Reg; September 26, 2008, Susp. South Carolina: Clover, Town of, York 450194 July 7, 1975, Emerg; May 15, 1980, Reg; ...... do ...... Do. County. September 26, 2008, Susp. Tennessee: Carter County, Unincorporated Areas ... 470024 May 30, 1979, Emerg; January 3, 1990, ...... do ...... Do. Reg; September 26, 2008, Susp. Elizabethton, City of, Carter County ...... 475425 March 30, 1970, Emerg; March 30, 1970, ...... do ...... Do. Reg; September 26, 2008, Susp. McMinnville, City of, Warren County..... 470195 January 15, 1974, Emerg; December 1, ...... do ...... Do. 1977, Reg; September 26, 2008, Susp. Viola, Town of, Warren County ...... 470196 April 9, 1975, Emerg; June 3, 1986, Reg; ...... do ...... Do. September 26, 2008, Susp.

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Date certain Federal assist- State and location Community Effective date authorization/cancellation of Current effective ance no longer No. sale of flood insurance in community map date available in SFHAs

Region V Wisconsin: Cudahy, City of, Milwaukee County ...... 550272 May 30, 1975, Emerg; December 15, 1978, ...... do ...... Do. Reg; September 26, 2008, Susp. Fox Point, Village of, Milwaukee County 550274 August 7, 1973, Emerg; May 16, 1977, ...... do ...... Do. Reg; September 26, 2008, Susp. Franklin, City of, Milwaukee County ...... 550273 December 29, 1972, Emerg; September 30, ...... do ...... Do. 1977, Reg; September 26, 2008, Susp. Greendale, Village of, Milwaukee Coun- 550276 May 23, 1975, Emerg; August 2, 1982, ...... do ...... Do. ty. Reg; September 26, 2008, Susp. Greenfield, Village of, Milwaukee Coun- 550277 March 9, 1973, Emerg; June 1, 1978, Reg; ...... do ...... Do. ty. September 26, 2008, Susp. Hales Corners, Village of, Milwaukee 550524 November 13, 1973, Emerg; June 15, 1979, ...... do ...... Do. County. Reg; September 26, 2008, Susp. Oak Creek, City of, Milwaukee County 550279 August 20, 1973, Emerg; September 29, ...... do ...... Do. 1978, Reg; September 26, 2008, Susp. River Hills, Village of, Milwaukee Coun- 550280 June 12, 1974, Emerg; April 15, 1980, Reg; ...... do ...... Do. ty. September 26, 2008, Susp. Shorewood, Village of, Milwaukee 550283 August 15, 1974, Emerg; August 11, 1978, ...... do ...... Do. County. Reg; September 26, 2008, Susp. South Milwaukee, City of, Milwaukee 550283 February 11, 1974, Emerg; April 15, 1980, ...... do ...... Do. County. Reg; September 26, 2008, Susp. St. Francis, City of, Milwaukee County 550281 September 12, 1975, Emerg; July 7, 1978, ...... do ...... Do. Reg; September 26, 2008, Susp. Wauwatosa, City of, Milwaukee County 550284 February 12, 1974, Emerg; December 1, ...... do ...... Do. 1978, Reg; September 26, 2008, Susp. Whitefish Bay, Village of, Milwaukee 550286 June 19, 1973, Emerg; May 1, 1987, Reg; ...... do ...... Do. County. September 26, 2008, Susp. Region VI Louisiana: Bossier, City of, Bossier Parrish 220033 June 26, 1974, Emerg; April 4, 1983, Reg; ...... do ...... Do. September 26, 2008, Susp. Oklahoma: Copan, Town of, Washington County ... 400361 July 12, 1976, Emerg; July 26, 1977, Reg; ...... do ...... Do. September 26, 2008, Susp. Geary, City of, Canadian County ...... 400381 October 28, 2004, Emerg; —, Reg; Sep- ...... do ...... Do. tember 26, 2008, Susp. Purcell, City of, Cleveland County ...... 400104 November 21, 1975, Emerg; July 2, 1981, ...... do ...... Do. Reg; September 26, 2008, Susp. Ramona, Town of, Washington County 400222 April 16, 1976, Emerg; March 31, 1988, ...... do ...... Do. Reg; September 26, 2008, Susp. Texas: Annetta South, Town of, Parker County 481665 November 1, 1999, Emerg; November 1, ...... do ...... Do. 1999, Reg; September 26, 2008, Susp. Austin, City of, Travis County ...... 480624 May 9, 1975, Emerg; September 2, 1981, ...... do ...... Do. Reg; September 26, 2008, Susp. Bartlett, City of, Williamson County ...... 480707 February 8, 1977, Emerg; March 25, 1985, ...... do ...... Do. Reg; September 26, 2008, Susp. Bruceville-Eddy, City of, McLennan 481302 October 4, 2004, Emerg; October 4, 2004, ...... do ...... Do. County. Reg; September 26, 2008, Susp. Cedar Park, City of, Williamson County 481282 June 4, 1981, Emerg; September 27, 1991, ...... do ...... Do. Reg; September 26, 2008, Susp. Dallas, City of, Dallas County ...... 480171 June 30, 1970, Emerg; March 16, 1983, ...... do ...... Do. Reg; September 26, 2008, Susp. Garland, City of, Dallas County...... 485471 August 7, 1970, Emerg; April 16, 1971, ...... do ...... Do. Reg; September 26, 2008, Susp. Georgetown, City of, Williamson County 480668 June 3, 1974, Emerg; September 27, 1991, ...... do ...... Do. Reg; September 26, 2008, Susp. Harker Heights, City of, Bell County ..... 480029 November 27, 1974, Emerg; August 3, ...... do ...... Do. 1981, Reg; September 26, 2008, Susp. Heath, City of, Rockwall County ...... 480545 November 11, 1977, Emerg; February 1, ...... do ...... Do. 1980, Reg; September 26, 2008, Susp. Hewitt, City of, McLennan County ...... 480458 March 25, 1977, Emerg; May 1, 1978, Reg; ...... do ...... Do. September 26, 2008, Susp. Holland, City of, Bell County ...... 480030 May 27, 1975, Emerg; August 3, 1981, ...... do ...... Do. Reg; September 26, 2008, Susp. Killeen, City of, Bell County...... 480031 December 10, 1974, Emerg; August 3, ...... do ...... Do. 1981, Reg; September 26, 2008, Susp. Lacy-Lakeview, City of, McLennan 480927 January 26, 1978, Emerg; October 9, 1979, ...... do ...... Do. County. Reg; September 26, 2008, Susp.

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Date certain Federal assist- State and location Community Effective date authorization/cancellation of Current effective ance no longer No. sale of flood insurance in community map date available in SFHAs

Lago Vista, City of, Travis County ...... 481588 January 29, 1976, Emerg; April 1, 1982, ...... do ...... Do. Reg; September 26, 2008, Susp. Lakeway, City of, Travis County ...... 481303 June 27, 1977, Emerg; November 5, 1980, ...... do ...... Do. Reg; September 26, 2008, Susp. Little River-Academy, City of, Bell 481579 August 23, 1983, Emerg; May 1, 1984, ...... do ...... Do. County. Reg; September 26, 2008, Susp. Manor, City of, Travis County ...... 481027 June 13, 1975, Emerg; May 25, 1978, Reg; ...... do ...... Do. September 26, 2008, Susp. Mart, City of, McLennan County ...... 480929 August 9, 1979, Emerg; August 9, 1979, ...... do ...... Do. Reg; September 26, 2008, Susp. McGregor, City of, McLennan County ... 480459 April 7, 1975, Emerg; February 1, 1979, ...... do ...... Do. Reg; September 26, 2008, Susp. McLendon-Chisholm, City of, Rockwall 480546 February 21, 1997, Emerg; —, Reg; Sep- ...... do ...... Do. County. tember 26, 2008, Susp. McLennan County, Unincorporated 480456 September 16, 1981, Emerg; September ...... do ...... Do. Areas. 16, 1981, Reg; September 26, 2008, Susp. Morgan’s Point Resort, City of, Bell 481525 June 12, 2001, Emerg; —, Reg; September ...... do ...... Do. County. 26, 2008, Susp. Parker County, Unincorporated Areas .. 480520 January 22, 1979, Emerg; September 27, ...... do ...... Do. 1991, Reg; September 26, 2008, Susp. Robinson, City of, McLennan County ... 480460 December 26, 1978, Emerg; January 17, ...... do ...... Do. 1979, Reg; September 26, 2008, Susp. Rockwall County, Unincorporated Areas 480543 May 19, 2001, Emerg; May 19, 2001, Reg; ...... do ...... Do. September 26, 2008, Susp. Rollingwood, City of, Travis County ...... 481029 February 3, 1975, Emerg; September 29, ...... do ...... Do. 1978, Reg; September 26, 2008, Susp. Royse, City of, Rockwall County ...... 480548 July 3, 1975, Emerg; July 16, 1980, Reg; ...... do ...... Do. September 26, 2008, Susp. Salado, Village of, Bell County ...... 480033 July 8, 2004, Emerg; July 8, 2004, Reg; ...... do ...... Do. September 26, 2008, Susp. San Leanna, Village of, Travis County 481305 March 11, 1980, Emerg; March 11, 1980, ...... do ...... Do. Reg; September 26, 2008, Susp. Sanctuary, City of, Parker County ...... 481285 April 16, 1986, Emerg; November 1, 1989, ...... do ...... Do. Reg; September 26, 2008, Susp. Smith County, Unincorporated Areas .... 481185 January 5, 1979, Emerg; July 2, 1981, Reg; ...... do ...... Do. September 26, 2008, Susp. Sunset Valley, City of, Travis County ... 481127 November 24, 1975, Emerg; March 1, ...... do ...... Do. 1979, Reg; September 26, 2008, Susp. Taylor, City of, Williamson County ...... 480670 November 7, 1974, Emerg; March 1, 1982, ...... do ...... Do. Reg; September 26, 2008, Susp. Thrall, City of, Williamson County ...... 481632 September 6, 1991, Emerg; September 27, ...... do ...... Do. 1991, Reg; September 26, 2008, Susp. Travis County, Unincorporated Areas ... 481026 January 29, 1976, Emerg; April 1, 1982, ...... do ...... Do. Reg; September 26, 2008, Susp. Troup, City of, Smith County ...... 480570 August 15, 1975, Emerg; January 23, 1979, ...... do ...... Do. Reg; September 26, 2008, Susp. Troy, City of, Bell County ...... 480709 July 20, 1977, Emerg; June 1, 1981, Reg; ...... do ...... Do. September 26, 2008, Susp. Tyler, City of, Smith County ...... 480571 August 5, 1974, Emerg; August 1, 1980, ...... do ...... Do. Reg; September 26, 2008, Susp. Valley Mills, City of, McLennan County 480054 July 31, 1975, Emerg; November 15, 1979, ...... do ...... Do. Reg; September 26, 2008, Susp. Waco, City of, McLennan County ...... 480461 November 26, 1971, Emerg; November 2, ...... do ...... Do. 1977, Reg; September 26, 2008, Susp. Weatherford, City of, Parker County..... 480522 September 13, 1974, Emerg; August 5, ...... do ...... Do. 1986, Reg; September 26, 2008, Susp. Weir, City of, Williamson County ...... 481674 April 19, 1996, Emerg; April 19, 1996, Reg; ...... do ...... Do. September 26, 2008, Susp. Whitehouse, City of, Smith County ...... 480572 June 25, 1975, Emerg; February 13, 1979, ...... do ...... Do. Reg; September 26, 2008, Susp. Willow Park, City of, Parker County ...... 481164 November 11, 1977, Emerg; March 18, ...... do ...... Do. 1987, Reg; September 26, 2008, Susp. Woodway, City of, McLennan County ... 480462 January 28, 1975, Emerg; May 1, 1979, ...... do ...... Do. Reg; September 26, 2008, Susp. Region IX California:

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Date certain Federal assist- State and location Community Effective date authorization/cancellation of Current effective ance no longer No. sale of flood insurance in community map date available in SFHAs

Bell Gardens, City of, Angeles County 060101 September 27, 1991, Emerg; September ...... do ...... Do. 27, 1991, Reg; September 26, 2008, Susp. Calexico, City of, Imperial County ...... 060067 August 4, 1978, Emerg; January 20, 1982, ...... do ...... Do. Reg; September 26, 2008, Susp. El Segundo, City of, Los Angeles Coun- 060118 February 21, 1975, Emerg; May 25, 1978, ...... do ...... Do. ty. Reg; September 26, 2008, Susp. Imperial County, Unincorporated Areas 060065 October 14, 1975, Emerg; March 15, 1984, ...... do ...... Do. Reg; September 26, 2008, Susp. La Mirada, City of, Los Angeles County 060131 August 7, 1975, Emerg; July 2, 1980, Reg; ...... do ...... Do. September 26, 2008, Susp. Maricopa, City of, Kern County ...... 060079 February 13, 1976, Emerg; September 24, ...... do ...... Do. 1984, Reg; September 26, 2008, Susp. Napa County, Unincorporated Areas.... 060205 January 29, 1971, Emerg; February 1, ...... do ...... Do. 1980, Reg; September 26, 2008, Susp. Redondo Beach, City of, Los Angeles 060150 April 22, 1975, Emerg; September 15, ...... do ...... Do. County. 1983, Reg; September 26, 2008, Susp. Santa Monica, City of, Los Angeles 060159 September 8, 1975, Emerg; April 30, 1982, ...... do ...... Do. County. Reg; September 26, 2008, Susp. Region X Idaho: Kellogg, City of, Shoshone 160131 June 26, 1974, Emerg; July 2, 1979, Reg; ...... do ...... Do. County. September 26, 2008, Susp. Mullan, City of, Shoshone County...... 160115 May 13, 1975, Emerg; August 1, 1979, ...... do ...... Do. Reg; September 26, 2008, Susp. Shoshone County, Unincorporated 160114 April 9, 1974, Emerg; September 5, 1979, ...... do ...... Do. Areas. Reg; September 26, 2008, Susp. Twin Falls, City of, Twin Falls County ... 160120 June 2, 1975, Emerg; November 1, 1984, ...... do ...... Do. Reg; September 26, 2008, Susp. Twin Falls County, Unincorporated 160231 February 25, 1999, Emerg; —, Reg; Sep- ...... do ...... Do. Areas. tember 26, 2008, Susp. Wallace, City of, Shoshone County ...... 160118 May 15, 1974, Emerg; July 2, 1979, Reg; ...... do ...... Do. September 26, 2008, Susp. *...... do=Ditto. Code for reading third column: Emerg.—Emergency; Reg.—Regular; Susp.—Suspension.

Dated: September 22, 2008. flood insurance premium rates will be Management Agency, 500 C Street, SW., Michael K. Buckley, calculated from the modified BFEs for Washington, DC 20472, (202) 646–3151. Acting Assistant Administrator, Mitigation new buildings and their contents. SUPPLEMENTARY INFORMATION: The Directorate, Federal Emergency Management DATES: These modified BFEs are modified BFEs are not listed for each Agency, Department of Homeland Security. currently in effect on the dates listed in community in this interim rule. [FR Doc. E8–22953 Filed 9–29–08; 8:45 am] the table below and revise the Flood However, the address of the Chief BILLING CODE 9110–12–P Insurance Rate Maps (FIRMs) in effect Executive Officer of the community prior to this determination for the listed where the modified BFE determinations are available for inspection is provided. DEPARTMENT OF HOMELAND communities. Any request for reconsideration must SECURITY From the date of the second publication of these changes in a be based on knowledge of changed Federal Emergency Management newspaper of local circulation, any conditions or new scientific or technical Agency person has ninety (90) days in which to data. request through the community that the The modifications are made pursuant 44 CFR Part 65 Mitigation Assistant Administrator of to section 201 of the Flood Disaster FEMA reconsider the changes. The Protection Act of 1973, 42 U.S.C. 4105, [Docket No. FEMA–B–1008] modified BFEs may be changed during and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. Changes in Flood Elevation the 90-day period. 4001 et seq., and with 44 CFR part 65. Determinations ADDRESSES: The modified BFEs for each For rating purposes, the currently community are available for inspection AGENCY: Federal Emergency effective community number is shown at the office of the Chief Executive Management Agency, DHS. and must be used for all new policies Officer of each community. The ACTION: Interim rule. and renewals. respective addresses are listed in the The modified BFEs are the basis for table below. SUMMARY: This interim rule lists the floodplain management measures communities where modification of the FOR FURTHER INFORMATION CONTACT: that the community is required to either Base (1% annual-chance) Flood William R. Blanton, Jr., Engineering adopt or to show evidence of being Elevations (BFEs) is appropriate because Management Branch, Mitigation already in effect in order to qualify or of new scientific or technical data. New Directorate, Federal Emergency to remain qualified for participation in

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the National Flood Insurance Program Consideration. An environmental List of Subjects in 44 CFR Part 65 (NFIP). impact assessment has not been Flood insurance, Floodplains, These modified BFEs, together with prepared. Regulatory Flexibility Act. As flood Reporting and recordkeeping the floodplain management criteria requirements. required by 44 CFR 60.3, are the elevation determinations are not within the scope of the Regulatory Flexibility minimum that are required. They ■ Act, 5 U.S.C. 601–612, a regulatory Accordingly, 44 CFR part 65 is should not be construed to mean that amended to read as follows: the community must change any flexibility analysis is not required. Regulatory Classification. This existing ordinances that are more PART 65—[AMENDED] interim rule is not a significant stringent in their floodplain regulatory action under the criteria of management requirements. The ■ 1. The authority citation for part 65 section 3(f) of Executive Order 12866 of community may at any time enact continues to read as follows: September 30, 1993, Regulatory stricter requirements of its own, or Planning and Review, 58 FR 51735. Authority: 42 U.S.C. 4001 et seq.; pursuant to policies established by the Executive Order 13132, Federalism. Reorganization Plan No. 3 of 1978, 3 CFR, other Federal, State, or regional entities. This interim rule involves no policies 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, The changes BFEs are in accordance that have federalism implications under 3 CFR, 1979 Comp., p. 376. with 44 CFR 65.4. Executive Order 13132, Federalism. § 65.4 [Amended] National Environmental Policy Act. Executive Order 12988, Civil Justice This interim rule is categorically Reform. This interim rule meets the ■ 2. The tables published under the excluded from the requirements of 44 applicable standards of Executive Order authority of § 65.4 are amended as CFR part 10, Environmental 12988. follows:

Location and Date and name of newspaper Effective date of Community State and county case No. where notice was published Chief executive officer of community modification No.

California: San Unincorporated August 18, 2008; August 25, The Honorable Greg Cox, Chairman, San December 23, 2008 ...... 060284 Diego. areas of San 2008; San Diego Union-Trib- Diego County Board of Supervisors, Diego County (08– une. 1600 Pacific Highway, Room 335, San 09–0782P). Diego, CA 92101. Colorado: El Paso ... City of Colorado September 2, 2008; September The Honorable Lionel Rivera, Mayor, City August 15, 2008 ...... 080060 Springs (07–08– 9, 2008; The Gazette. of Colorado Springs, P.O. Box 1575, 0958P). Colorado Springs, CO 80901. Iowa: Dallas ...... City of Granger (08– August 21, 2008; August 28, The Honorable James Doyle, Mayor, City July 31, 2008 ...... 190104 07–0907P). 2008; Northeast Dallas of Granger, 1906 Main Street, Granger, Record. IA 50109. Oklahoma: Tulsa ..... City of Tulsa (08– July 31, 2008; August 7, 2008; The Honorable Kathryn L. Taylor, Mayor, July 17, 2008 ...... 405381 06–1865P). Tulsa World. City of Tulsa, 200 Civic Center, Tulsa, OK 74103. Texas: Brazos ...... City of Bryan (08– August 7, 2008; August 14, The Honorable D. Mark Conlee, Mayor, July 25, 2008 ...... 480082 06–0692P). 2008; Bryan College Station City of Bryan, 300 South Texas Ave- Eagle. nue, Bryan, TX 77803. Brazos ...... City of College Sta- July 31, 2008; August 7, 2008; The Honorable Ben White, Mayor, City of December 5, 2008 ...... 480083 tion (08–06– Bryan College Station Eagle. College Station, 1101 Texas Avenue, 1882P). College Station, TX 77840. Guadalupe ...... City of Cibolo (08– August 20, 2008; August 27, The Honorable Jennifer Hartman, Mayor, December 26, 2008 ...... 480267 06–0784P). 2008; Seguin Gazette-Enter- City of Cibolo, P.O. Box 826, Cibolo, prise. TX 78108–0826. Palo Pinto and City of Mineral Wells September 2, 2008; September The Honorable Clarence Holliman, Mayor, January 7, 2009 ...... 480517 Parker. (08–06–2504P). 9, 2008; Mineral Wells Index. City of Mineral Wells, 115 Southwest First Street, Mineral Wells, TX 76067. Virginia: Roanoke .... Unincorporated August 15, 2008; August 22, The Honorable Richard Flora, Chairman, December 22, 2008 ...... 510190 areas of Roanoke 2008; The Roanoke Times. Roanoke County Board of Supervisors, County (08–03– P.O. Box 29800, Roanoke, VA 24018. 0782P).

(Catalog of Federal Domestic Assistance No. DEPARTMENT OF TRANSPORTATION and Security Act of 2007 and amend the 97.022, ‘‘Flood Insurance.’’) definition of a ‘‘qualified vessel’’ under Dated: September 19, 2008. Maritime Administration the Capital Construction Fund. This rule Michael K. Buckley, is final because its underlying statutes 46 CFR Part 390 leave no discretion; therefore, a notice Acting Assistant Administrator, Mitigation of proposed rulemaking is not required. Directorate, Department of Homeland [Docket No. MARAD–2008–0075] Security, Federal Emergency Management RIN 2133–AB71 DATES: Effective Date: This final rule is Agency. effective September 30, 2008. [FR Doc. E8–22951 Filed 9–29–08; 8:45 am] Capital Construction Fund FOR FURTHER INFORMATION CONTACT: BILLING CODE 9110–12–P AGENCY: Maritime Administration, Murray Bloom, Chief, Division of Department of Transportation. Maritime Programs, Maritime ACTION: Final rule. Administration at 202–366–5320, via e- mail at [email protected], or by SUMMARY: The Maritime Administration writing to Murray Bloom, Office of the is issuing this final rule to implement Chief Counsel, Maritime provisions of the Energy Independence Administration, MAR–222, 1200 New

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Jersey Avenue, SE., Washington, DC warrant the preparation of a full Environmental Assessment 20590. regulatory evaluation. This rulemaking We have analyzed this final rule for SUPPLEMENTARY INFORMATION: amends the definition of a qualified purposes of compliance with the vessel to conform to the newly enacted National Environmental Policy Act of Background statute. 1969 (NEPA) (42 U.S.C. 4321 et seq.) The Capital Construction Fund allows Executive Order 13132 and we have concluded that, under the a deferral of federal income tax categorical exclusions provision in provided that the amount of the tax We have analyzed this rulemaking in section 4.05 of Maritime Administrative deferral is deposited into a fund to be accordance with the principles and Order (MAO) 600–1, ‘‘Procedures for used for the purpose of acquiring, criteria contained in Executive Order Considering Environmental Impacts,’’ constructing or reconstructing U.S.- 13132 (‘‘Federalism’’) and have 50 FR 11606 (March 22, 1985), neither built, U.S.-documented vessels. Such determined that it does not have the preparation of an Environmental vessels are called ‘‘qualified vessels,’’ sufficient federalism implications to Assessment, an Environmental Impact and they must be operated in the United warrant the preparation of a federalism Statement, nor a Finding of No States foreign, Great Lakes or summary impact statement. The Significant Impact for this rulemaking is noncontiguous domestic trade. On regulations have no substantial effects required. This final rule does not change December 19, 2007, the President signed on the States, the current Federal-State the environmental effects of the current Public Law 110–140, the Energy relationship, or the current distribution Capital Construction Fund program. Independence and Security Act of 2007, of power and responsibilities among This final rule implements a definition which contains Title XI—Energy various local officials. Therefore, of a qualified vessel for the Capital Transportation and Infrastructure, consultation with State and local Construction Fund. This rulemaking Subtitle C—Department of officials was not necessary. will not result, either individually or Transportation, authorizing the creation cumulatively, in a significant impact on of a new Short Sea Transportation Executive Order 13175 the environment. Program. The Short Sea Transportation Program establishes an expanded Executive Order 13175—Consultation Paperwork Reduction and Coordination with Indian Tribal definition of a qualified vessel under the This rule does not establish a new Governments, dated November 6, 2000, Capital Construction Fund. Public Law requirement for the collection of seeks to establish regular and 110–140 also expands the trade information. Thus, the Office of meaningful consultation and permitted to qualified vessels by Management and Budget (OMB) will not collaboration with tribal officials in the allowing qualified vessels to operate in be requested to review and approve the development of Federal policies that the short sea transportation trade in information collection requirements have tribal implications, to strengthen addition to the other trades presently under the Paperwork Reduction Act of the United States government-to- permitted. Since Public Law 110–140 1995 (44 U.S.C. 3501, et seq.). specifically defines ‘‘short sea government relationships with Indian transportation trade,’’ this final rule tribes, and to reduce the imposition of Regulation Identifier Number (RIN) merely amends the existing regulation unfunded mandates upon Indian tribes. A regulation identifier number (RIN) by including the statutory definition Executive Order 13175 does not apply is assigned to each regulatory action and making other conforming changes. to this regulation as it does not affect, listed in the Unified Agenda of Federal Separately, Congress enacted Public directly or indirectly, Indian tribes. Regulations. The Regulatory Information Law 109–304 to complete the Regulatory Flexibility Service Center publishes the Unified codification of Title 46, United States Agenda in April and October of each Code. This statute restated section 607 The Regulatory Flexibility Act year. The RIN number contained in the of the Merchant Marine Act, 1936, requires us to assess the impact that heading of this document can be used without substantive change. Section 607 regulations will have on small entities. to cross-reference this action with the is now section 53501, et seq. This final After analysis of this final rule, the Unified Agenda. Maritime Administrator certifies that rule updates the statutory references in Privacy Act the regulation to conform to the new this final rule will not have a significant codification. economic impact on a substantial You may review DOT’s complete number of small entities. Privacy Act Statement in the Federal Rulemaking Analyses and Notices Register published on April 11, 2000 Executive Order 12866 (Regulatory Unfunded Mandates Reform Act of (Volume 65, Number 70; Pages 19477– Planning and Review), and Department 1995 19478) or you may visit http:// www.regulations.gov. of Transportation (DOT) Regulatory This final rule will not impose an Policies; Public Law 104–121 unfunded mandate under the Unfunded List of Subjects in 46 CFR Part 390 This rulemaking is not significant Mandates Reform Act of 1995. It will Income taxes, Investments, Maritime under section 3(f) of Executive Order not result in costs of $100 million or carriers, Vessels. 12866 and as a consequence, OMB did more, in the aggregate, to any of the ■ Accordingly, the Maritime not review the rule. This rulemaking is following: State, local, or Native Administration amends 46 CFR part 390 also not significant under the Regulatory American tribal governments, or the as follows: Policies and Procedures of the private sector, and is the least Department of Transportation (44 FR burdensome alternative that achieves PART 390—CAPITAL CONSTRUCTION 11034; February 26, 1979). It is also not this objective of U.S. policy. Department FUND considered a major rule for purposes of of Transportation guidance requires the Congressional review under Public Law use of a revised threshold figure of ■ 1. The authority citation for part 390 104–121. The Maritime Administration $136.1 million, which is the value of is amended to read as follows: believes that the economic impact of $100 million in 2008 after adjusting for Authority: Secs. 53501, et seq., of Title 46, this rulemaking is so minimal as to not inflation. United States Code, formerly, section 607,

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Merchant Marine Act, 1936, as amended (46 ■ 2. In the table below, for each section and add the phrase indicated in the App. U.S.C. 1177); 49 CFR 1.66. indicated in the left column, remove the right column: phrase indicated in the middle column

Section Remove Add

390.2(a)(2)(i) ...... section 2 of the Shipping Act, 1916 ...... 46 U.S.C. 50501. 390.2(a)(2)(ii) ...... section 607(k)(1) of the Act ...... 46 U.S.C. 53501. 390.2(a)(2)(iii) ...... section 607(k)(2) of the Act ...... 46 U.S.C. 53501(5). 390.2(a)(2)(iii) ...... section 607(k) of the Act ...... 46 U.S.C. 53501. 390.2(a)(2)(iii) ...... section 905(a) of the Act ...... 46 U.S.C. 109(b). 390.3(a) ...... section 101 of the Act ...... 46 U.S.C. 50501. 390.3(b)(2)(i) ...... Internal Revenue Code of 1954 ...... Internal Revenue Code of 1986. 390.5(a) ...... section 607(k) of the Act ...... 46 U.S.C. 53501. 390.5(b)(2) introductory text ...... section 607(b) of the Act ...... 46 U.S.C. 53505. 390.5(c)(2) introductory text ...... section 607(f) of the Act ...... 46 U.S.C. 53509. 390.5(c)(3)(ii) ...... section 506 of the Act ...... 46 U.S.C. 53101 note. 390.5(c)(7)(ii)(A) ...... section 905 of the Act ...... 46 U.S.C. 109. 390.7(a)(1) ...... section 607(b) of the Act ...... 46 U.S.C. 53505. 390.7(a)(2) ...... section 607(d) of the Act ...... 46 U.S.C. 53507. 390.7(b)(1) ...... section 607(c) of the Act ...... 46 U.S.C. 53506. 390.7(c)(1) ...... section 607(d)(2) of the Act ...... 46 U.S.C. 53507(b). 390.7(d)(1) ...... section 607(c) of the Act ...... 46 U.S.C. 53506. 390.7(e)(1) ...... section 607(a) of the Act ...... 46 U.S.C. 53504. 390.7(f)(1) ...... section 607(b)(2) of the Act ...... 46 U.S.C. 53505(b). 390.7(h)(2) ...... section 607(c) of the Act ...... 46 U.S.C. 53506. 390.7(i) ...... Title XI of the Act ...... 46 U.S.C. Chapter 537. 390.8(a) ...... section 607(c) of the Act ...... 46 U.S.C. 53506. 390.8(b)(3)(ii) ...... Internal Revenue Code of 1954 ...... Internal Revenue Code of 1986. 390.8(c)(4) ...... Internal Revenue Code of 1954 ...... Internal Revenue Code of 1986. 390.9(a)(1) introductory text ...... section 607(f) of the Act ...... 46 U.S.C. 53509. 390.9(a)(2) ...... section 607(g) of the Act ...... 46 U.S.C. 53510. 390.9(b)(4) ...... section 607(f)(1)(C) ...... 46 U.S.C. 53509(a)(2). 390.9(c)(1) ...... Internal Revenue Code of 1954 ...... Internal Revenue Code of 1986. 390.9(c)(4) ...... Internal Revenue Code of 1954 ...... Internal Revenue Code of 1986. 390.10(a)(2) ...... section 607(h) of the Act ...... 46 U.S.C. 53511. 390.11(c)(1) ...... Internal Revenue Code of 1954 ...... Internal Revenue Code of 1986. 390.12(b)(2) ...... Internal Revenue Code of 1954 ...... Internal Revenue Code of 1986. 390.13(a) ...... section 607(f)(2) of the Act ...... 46 U.S.C. 53509(c). Appendix I to Part 390 ...... section 2 of the Shipping Act, 1916 ...... 46 U.S.C. 50501. Appendix I to Part 390 ...... section 607(k) of the Act ...... 46 U.S.C. 53501. Appendix I to Part 390 ...... section 607(f)(2) of the Act ...... 46 U.S.C. 53509(c). Appendix I to Part 390I ...... section 607(k) of the Act ...... 46 U.S.C. 53501.

■ 3. Amend § 390.1 by: ■ B. Revising the last sentence of § 390.5 Agreement vessel. ■ A. Revising paragraph (a)(1) and (b) to paragraph (a)(2)(iii) to read as follows: * * * * * read as set forth below; § 390.2 Application for an agreement. (c) * * * ■ B. Removing the phrase ‘‘Section 607’’ (1) * * * and adding in its place ‘‘Chapter 535’’ (a) * * * (iii) Operated in the United States in paragraphs (a)(3) and (4); and (2) * * * foreign, Great Lakes, noncontiguous ■ C. Removing the phrase ‘‘Section 607 (iii) * * * Such provisions state that domestic, or short sea transportation of the Act’’ and adding in its place the vessel will be operated in the United trade. ‘‘Chapter 535’’ in paragraph (c). States foreign, Great Lakes, * * * * * § 390.1 Scope of the regulations. noncontiguous domestic, or short sea (6) Short Sea Transportation Trade. transportation trade as defined in 46 The term short sea transportation trade (a) In general—(1) Scope. The U.S.C. 53501 and 46 U.S.C. 109(b); and means the carriage by vessel of cargo— regulations prescribed in this part * * * * * (i) That is: govern the capital construction fund (‘‘fund’’) authorized by 46 U.S.C. 53501 ■ 5. Section 390.5 is amended by (A) Contained in intermodal cargo containers and loaded by crane on the et seq. ■ A. Revising paragraph (c)(1)(iii); vessel; or * * * * * ■ B. Redesignating paragraphs (c)(6) (B) Loaded on the vessel by means of (b) Act. For purposes of this part, the through (c)(8) as paragraphs (c)(7) wheeled technology; and term Act shall mean Chapter 535 of through (c)(9) and adding new (ii) That is: Title 46, United States Code. paragraph (c)(6); (A) Loaded at a port in the United * * * * * ■ C. Removing the phrase ‘‘section 607 States and unloaded either at another ■ 4. Section 390.2 is amended by: of the Act’’ and adding in its place port in the United States or at a port in ■ A. Removing the phrase ‘‘section 607 ‘‘Chapter 535’’ in newly redesignated Canada located in the Great Lakes Saint of the Act’’ and adding in its place paragraph (c)(7)(i); and Lawrence Seaway System; or ‘‘Chapter 535’’ in paragraph (a)(2) ■ D. Revising newly redesignated (B) Loaded at a port in Canada located introductory text; and paragraphs (c)(7)(iv) and (c)(8)(iii); in the Great Lakes Saint Lawrence

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Seaway System and unloaded at a port ACTION: Correcting amendments. § 63.71 Procedures for discontinuance, in the United States.’’ reduction or impairment of service by (7) * * * SUMMARY: This document contains domestic carriers. (iv) Bunkering in support of non- corrections to the final regulations, * * * * * qualified trade operations. which were published in the Federal (a) * * * (8) * * * Register on November 9, 2006, 71 FR (5) * * * (iii) Ship assist work, including 65743. The regulations related to rules (i) * * * Address them to the Federal lightering or shifting of a vessel at the that apply to the operations and Communications Commission, Wireline end or beginning of a noncontiguous activities of providers of Competition Bureau, Competition domestic, short sea transportation trade, telecommunications services. Policy Division, Washington, DC 20554, Great Lakes or U.S. foreign trade voyage. DATES: Effective on September 30, 2008. and include in your comments a In addition, the lightering of foreign-flag reference to the § 63.71 Application of FOR FURTHER INFORMATION CONTACT: vessels in U.S. ports is permitted. (carrier’s name). * * * Nicholas Degani, Wireline Competition * * * * * (ii) * * * Address them to the Federal Bureau, Competition Policy Division, at Communications Commission, Wireline § 390.12 [Amended] (202) 418–2277 or via the Internet at Competition Bureau, Competition ■ 6. In § 390.12, remove the phrase [email protected]. Policy Division, Washington, DC 20554, ‘‘section 607 of the Act’’ and add in its SUPPLEMENTARY INFORMATION: and include in your comments a place ‘‘Chapter 535’’ in paragraph (a)(1). reference to the Section 63.71 Background Application of (carrier’s name). * * * Appendix I to Part 390—[Amended] The Commission published a * * * * * ■ 7. In Appendix I: document in the Federal Register on [FR Doc. E8–22803 Filed 9–29–08; 8:45 am] ■ A. Remove the phrase ‘‘section 607 of November 9, 2006, 71 FR 65743, BILLING CODE 6712–01–P the Merchant Marine Act, 1936, as summarizing the Commission’s Report amended (46 U.S.C. 1177)’’ and add in and Order in WC Docket No. 02–313, its place ‘‘46 U.S.C. 53501 et seq.’’ released August 21, 2006. The Report DEPARTMENT OF TRANSPORTATION wherever it may occur; and and Order included drafting errors ■ ll B. Remove ‘‘19 ’’ and add in its regarding where to send comments on National Highway Traffic Safety place ‘‘20ll’’ wherever it may occur. the proposed discontinuance, reduction, Administration Appendix II to Part 390—[Amended] or impairment of domestic service by a common carrier. On September 17, 49 CFR Part 593 ■ 8. In Appendix II: 2008, the Commission published an ■ A. Remove the phrase ‘‘section 607 of erratum correcting the drafting errors. [Docket No. NHTSA–2008–0134] the Merchant Marine Act, 1936, as amended (46 U.S.C. 1177)’’ and add in Need for Correction List of Nonconforming Vehicles its place ‘‘46 U.S.C. 53501 et seq.’’ As published, the final regulations Decided To Be Eligible for Importation wherever it may occur; and contain errors in the Commission’s zip AGENCY: National Highway Traffic ■ B. Remove ‘‘19ll’’ and add in its code. Safety Administration (NHTSA), DOT. place ‘‘20ll’’ wherever it may occur. List of Subjects in 47 CFR Part 63 ACTION: Final rule. Appendix IV to Part 390—[Amended] Telecommunications, Telephone. SUMMARY: This document revises the list ■ 9. In Appendix IV: of vehicles not originally manufactured ■ A. Remove the phrase ‘‘Assistant Federal Communications Commission. Marlene H. Dortch, to conform to the Federal motor vehicle General Counsel’’ and add in its place safety standards (FMVSS) that NHTSA Secretary. ‘‘Assistant Chief Counsel’’ wherever it has decided to be eligible for may occur; and ■ Accordingly, 47 CFR part 63 is importation. This list is published in an ■ B. Remove ‘‘19ll’’ and add in its corrected by making the following appendix to the agency’s regulations place ‘‘20ll’’ wherever it may occur. correcting amendments: that prescribe procedures for import Dated: September 18, 2008. eligibility decisions. The list has been PART 63—EXTENSION OF LINES, NEW By order of the Maritime Administrator. revised to add all vehicles that NHTSA LINES, AND DISCONTINUANCE, Leonard Sutter, has decided to be eligible for REDUCTION, OUTAGE AND Secretary, Maritime Administration. importation since October 1, 2007, and IMPAIRMENT OF SERVICE BY to remove all previously listed vehicles [FR Doc. E8–22235 Filed 9–29–08; 8:45 am] COMMON CARRIERS; AND GRANTS that are now more than 25 years old and BILLING CODE 4910–81–P OF RECOGNIZED PRIVATE need no longer comply with all OPERATING AGENCY STATUS applicable FMVSS to be lawfully FEDERAL COMMUNICATIONS ■ 1. The authority citation for part 63 imported. NHTSA is required by statute COMMISSION continues to read as follows: to publish this list annually in the Federal Register. 47 CFR Part 63 Authority: Sections 1, 4(i), 4(j), 10, 11, 201–205, 214, 218, 403, and 651 of the DATES: The revised list of import eligible [WC Docket No. 02–313; DA 08–2112; FCC Communications Act of 1934, as amended, vehicles is effective on September 30, 06–86] 47 U.S.C. 151, 154(i), 154(j), 160, 161, 201– 2008. 205, 214, 218, 403, and 571, unless otherwise FOR FURTHER INFORMATION CONTACT: noted. Biennial Regulatory Review of Coleman Sachs, Office of Vehicle Safety Regulations Administered by the ■ Compliance, NHTSA, (202) 366–3151. Wireline Competition Bureau 2. Section 63.71 is amended by revising the third sentence in paragraph SUPPLEMENTARY INFORMATION: Under 49 AGENCY: Federal Communications (a)(5)(i) and the third sentence in U.S.C. 30141(a)(1)(A), a motor vehicle Commission. paragraph (a)(5)(ii) to read as follows: that was not originally manufactured to

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conform to all applicable FMVSS shall Management and Budget (OMB) review Accordingly, we have not prepared a be refused admission into the United and to the requirements of the Executive Final Regulatory Flexibility Analysis. States unless NHTSA has decided that Order. The Executive Order defines a D. Executive Order 13132, Federalism the motor vehicle is substantially ‘‘significant regulatory action’’ as one similar to a motor vehicle originally that is likely to result in a rule that may: Executive Order 13132 requires manufactured for importation into and (1) Have an annual effect on the NHTSA to develop an accountable sale in the United States, certified under economy of $100 million or more or process to ensure ‘‘meaningful and 49 U.S.C. 30115, and of the same model adversely affect in a material way the timely input by State and local officials year as the model of the motor vehicle economy, a sector of the economy, in the development of regulatory to be compared, and is capable of being productivity, competition, jobs, the policies that have federalism readily altered to conform to all environment, public health or safety, or implications.’’ Executive Order 13132 applicable FMVSS. Where there is no State, local, or Tribal governments or defines the term ‘‘Policies that have substantially similar U.S.-certified communities; federalism implications’’ to include motor vehicle, 49 U.S.C. 30141(a)(1)(B) (2) Create a serious inconsistency or regulations that have ‘‘substantial direct permits a nonconforming motor vehicle otherwise interfere with an action taken effects on the States, on the relationship to be admitted into the United States if or planned by another agency; between the national government and its safety features comply with, or are (3) Materially alter the budgetary the States, or on the distribution of capable of being altered to comply with, impact of entitlements, grants, user fees, power and responsibilities among the all applicable FMVSS based on or loan programs or the rights and various levels of government.’’ Under destructive test data or such other obligations of recipients thereof; or Executive Order 13132, NHTSA may not evidence as the Secretary of (4) Raise novel legal or policy issues issue a regulation that has federalism Transportation decides to be adequate. arising out of legal mandates, the implications, that imposes substantial Under 49 U.S.C. 30141(a)(1), import President’s priorities, or the principles direct compliance costs, and that is not eligibility decisions may be made ‘‘on set forth in the Executive Order. This required by statute, unless the Federal the initiative of the Secretary of rule will not have any of these effects government provides the funds Transportation or on petition of a and was not reviewed under Executive necessary to pay the direct compliance manufacturer or importer registered Order 12866. It is not significant within costs incurred by State and local under [49 U.S.C. 30141(c)].’’ The the meaning of the DOT Regulatory governments, or NHTSA consults with Secretary’s authority to make these Policies and Procedures. The effect of State and local officials early in the decisions has been delegated to NHTSA. this rule is not to impose new process of developing the regulation. The agency publishes notice of requirements. Instead it provides a This rule will have no direct effect on eligibility decisions as they are made. summary compilation of decisions on the States, on the relationship between Under 49 U.S.C. 30141(b)(2), a list of import eligibility that have already been the national government and the States, all vehicles for which import eligibility made and does not involve new or on the distribution of power and decisions have been made must be decisions. This rule will not impose any responsibilities among the various published annually in the Federal additional burden on any person. levels of government as specified in Register. On October 1, 1996, NHTSA Accordingly, the agency believes that Executive Order 13132. Thus, the added the list as an appendix to 49 CFR the preparation of a regulatory requirements of section 6 of the part 593, the regulations that establish evaluation is not warranted for this rule. Executive Order do not apply to this rule. procedures for import eligibility B. Environmental Impacts decisions (61 FR 51242). As described We have not conducted an evaluation E. The Unfunded Mandates Reform Act in the notice, NHTSA took that action of the impacts of this rule under the The Unfunded Mandates Reform Act to ensure that the list is more widely National Environmental Policy Act. of 1995 (Pub. L. 104–4) requires disseminated to government personnel This rule does not impose any change agencies to prepare a written assessment who oversee vehicle imports and to that would result in any impacts to the of the costs, benefits and other effects of interested members of the public. See 61 quality of the human environment. proposed or final rules that include a FR 51242–43. In the notice, NHTSA Accordingly, no environmental Federal mandate likely to result in the expressed its intention to annually assessment is required. expenditure by State, local or tribal revise the list as published in the governments, in the aggregate, or by the appendix to include any additional C. Regulatory Flexibility Act private sector, of more than $100 vehicles decided by the agency to be Pursuant to the Regulatory Flexibility million annually. This rule will not eligible for importation since the list Act, we have considered the impacts of result in additional expenditures by was last published. See 61 FR 51243. this rule on small entities (5 U.S.C. 601 State, local or tribal governments or by The agency stated that issuance of the et seq.). I certify that this rule will not any members of the private sector. document announcing these revisions have a significant economic impact Therefore, the agency has not prepared will fulfill the annual publication upon a substantial number of small an economic assessment pursuant to the requirements of 49 U.S.C. 30141(b)(2). entities within the context of the Unfunded Mandates Reform Act. Ibid. Regulatory Flexibility Act. The F. Paperwork Reduction Act Regulatory Analyses and Notices following is our statement providing the factual basis for the certification (5 Under the Paperwork Reduction Act A. Executive Order 12866, Regulatory U.S.C. 605(b)). This rule will not have of 1995 (44 U.S.C. 3501 et seq.), a Planning and Review any significant economic impact on a person is not required to respond to a Executive Order 12866, ‘‘Regulatory substantial number of small businesses collection of information by a Federal Planning and Review’’ (58 FR 51735, because the rule merely furnishes agency unless the collection displays a October 4, 1993), provides for making information by revising the list in the valid OMB control number. This rule determinations about whether a Code of Federal Regulations of vehicles does not impose any new collection of regulatory action is ‘‘significant’’ and for which import eligibility decisions information requirements for which a 5 therefore subject to Office of have previously been made. CFR Part 1320 clearance must be

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obtained. DOT previously submitted to received into any of our dockets by the PART 593—[AMENDED] OMB and OMB approved the collection name of the individual submitting the of information associated with the comment (or signing the comment, if ■ 1. The authority citation for part 593 vehicle importation program in OMB submitted on behalf of an association, continues to read as follows: Clearance No. 2127–0002. business, labor union, etc.). You may Authority: 49 U.S.C. 322 and 30141(b); G. Civil Justice Reform review DOT’s complete Privacy Act delegation of authority at 49 CFR 1.50. Statement in the Federal Register Pursuant to Executive Order 12988, published on April 11, 2000 (Volume ■ 2. Appendix A to part 593 is revised ‘‘Civil Justice Reform,’’ we have 65, Number 70; Pages 19477–78). to read as follows: considered whether this rule has any retroactive effect. We conclude that it K. Executive Order 13045, Economically Appendix A to Part 593—List of will not have such an effect. Significant Rules Disproportionately Vehicles Determined To Be Eligible for Affecting Children Importation H. Plain Language Executive Order 12866 requires each This rule is not subject to Executive (a) Each vehicle on the following list is agency to write all rules in plain Order 13045 because it is not preceded by a vehicle eligibility number. The importer of a vehicle admissible under any language. Application of the principles ‘‘economically significant’’ as defined under Executive Order 12866, and does eligibility decision must enter that number of plain language includes consideration on the HS–7 Declaration Form accompanying of the following questions: not concern an environmental, health, or safety risk that NHTSA has reason to entry to indicate that the vehicle is eligible —Have we organized the material to suit for importation. the public’s needs? believe may have a disproportionate (1) ‘‘VSA’’ eligibility numbers are assigned —Are the requirements in the rule effect on children. to all vehicles that are decided to be eligible clearly stated? L. Notice and Comment for importation on the initiative of the —Does the rule contain technical Administrator under § 593.8. language or jargon that is not clear? NHTSA finds that prior notice and (2) ‘‘VSP’’ eligibility numbers are assigned —Would a different format (grouping opportunity for comment are to vehicles that are decided to be eligible and order of sections, use of headings, unnecessary under 5 U.S.C. 553(b)(3)(B) under § 593.7(f), based on a petition from a paragraphing) make the rule easier to because this action does not impose any manufacturer or registered importer understand? regulatory requirements. This rule submitted under § 593.5(a)(1), which —Would more (but shorter) sections be establishes that a substantially similar U.S.- merely revises the list of vehicles not certified vehicle exists. better? originally manufactured to conform to —Could we improve clarity by adding (3) ‘‘VCP’’ eligibility numbers are assigned the FMVSS that NHTSA has decided to to vehicles that are decided to be eligible tables, lists, or diagrams? be eligible for importation into the —What else could we do to make the under § 593.7(f), based on a petition from a United States since the last list was rule easier to understand? manufacturer or registered importer published in September 2007. submitted under § 593.5(a)(2), which If you wish to do so, please comment on establishes that the vehicle has safety the extent to which this final rule In addition, so that the list of vehicles for which import eligibility decisions features that comply with, or are capable of effectively uses plain language being altered to comply with, all applicable principles. have been made may be included in the FMVSS. next edition of 49 CFR parts 400 to 599, I. National Technology Transfer and (b) Vehicles for which eligibility decisions which is due for revision on October 1, have been made are listed alphabetically, Advancement Act 2008, good cause exists to dispense with first by make and then by model. Under the National Technology and the requirement in 5 U.S.C. 553(d) for (c) All hyphens used in the Model Year Transfer and Advancement Act of 1995 the effective date of the rule to be column mean ‘‘through’’ (for example, (Pub. L. 104–113), ‘‘all Federal agencies delayed for at least 30 days following its ‘‘1982–1989’’ means ‘‘1982 through 1989’’). and departments shall use technical publication. (d) The initials ‘‘MC’’ used in the Make standards that are developed or adopted column mean ‘‘Motorcycle.’’ by voluntary consensus standards List of Subjects in 49 CFR Part 593 (e) The initials ‘‘SWB’’ used in the Model bodies, using such technical standards Type column mean ‘‘Short Wheel Base.’’ Imports, Motor vehicle safety, Motor (f) The initials ‘‘LWB’’ used in the Model as a means to carry out policy objectives vehicles. Type column mean ‘‘Long Wheel Base.’’ or activities determined by the agencies ■ In consideration of the foregoing, Part (g) For vehicles with a European country and departments.’’ This rule does not of origin, the term ‘‘Model Year’’ ordinarily require the use of any technical 593 of Title 49 of the Code of Federal means calendar year in which the vehicle standards. Regulations, Determinations that a was produced. vehicle not originally manufactured to J. Privacy Act (h) All vehicles are left-hand-drive (LHD) conform to the Federal motor vehicle vehicles unless noted as RHD. The initials Anyone is able to search the safety standards is eligible for ‘‘RHD’’ used in the Model Type column electronic form of all comments importation, is amended as follows: mean ‘‘Right-Hand-Drive.’’

VEHICLES CERTIFIED BY THEIR ORIGINAL MANUFACTURER AS COMPLYING WITH ALL APPLICABLE CANADIAN MOTOR VEHICLE SAFETY STANDARDS

VSA–80 ...... (a) All passenger cars less than 25 years old that were manufactured before September 1, 1989; (b) All passenger cars manufactured on or after September 1, 1989, and before September 1, 1996, that, as originally manu- factured, are equipped with an automatic restraint system that complies with Federal Motor Vehicle Safety Standard (FMVSS) No. 208; (c) All passenger cars manufactured on or after September 1, 1996, and before September 1, 2002, that, as originally manu- factured, are equipped with an automatic restraint system that complies with FMVSS No. 208, and that comply with FMVSS No. 214;

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VEHICLES CERTIFIED BY THEIR ORIGINAL MANUFACTURER AS COMPLYING WITH ALL APPLICABLE CANADIAN MOTOR VEHICLE SAFETY STANDARDS—Continued (d) All passenger cars manufactured on or after September 1, 2002, and before September 1, 2007, that, as originally manu- factured, are equipped with an automatic restraint system that complies with FMVSS No. 208, and that comply with FMVSS Nos. 201, 214, 225, and 401; (e) All passenger cars manufactured on or after September 1, 2007, and before September 1, 2008, that, as originally manu- factured, comply with FMVSS Nos. 110, 118, 138, 201, 208, 213, 214, 225, and 401; (f) All passenger cars manufactured on or after September 1, 2008 and before September 1, 2011 that, as originally manu- factured, comply with FMVSS Nos. 110, 118, 138, 201, 202a, 206, 208, 213, 214, 225, and 401; (g) All passenger cars manufactured on or after September 1, 2011 and before September 1, 2012 that, as originally manu- factured, comply with FMVSS Nos. 110, 118, 126, 138, 201, 202a, 206, 208, 213, 214, 225, and 401. VSA–81 ...... (a) All multipurpose passenger vehicles, trucks, and buses with a GVWR of 4,536 kg (10,000 lb) or less that are less than 25 years old and that were manufactured before September 1, 1991; (b) All multipurpose passenger vehicles, trucks, and buses with a GVWR of 4,536 kg (10,000 lb) or less that were manufac- tured on and after September 1, 1991, and before September 1, 1993 and that, as originally manufactured, comply with FMVSS Nos. 202 and 208; (c) All multipurpose passenger vehicles, trucks, and buses with a GVWR of 4,536 kg (10,000 lb) or less that were manufac- tured on or after September 1, 1993, and before September 1, 1998, and that, as originally manufactured, comply with FMVSS Nos. 202, 208, and 216; (d) All multipurpose passenger vehicles, trucks, and buses with a GVWR of 4,536 kg (10,000 lb) or less that were manufac- tured on or after September 1, 1998, and before September 1, 2002, and that, as originally manufactured, comply with FMVSS Nos. 202, 208, 214, and 216; (e) All multipurpose passenger vehicles, trucks, and buses with a GVWR of 4,536 kg (10,000 lb) or less that were manufac- tured on or after September 1, 2002, and before September 1, 2007, and that, as originally manufactured, comply with FMVSS Nos. 201, 202, 208, 214, and 216, and, insofar as it is applicable, with FMVSS No. 225; (f) All multipurpose passenger vehicles, trucks, and buses with a GVWR of 4,536 kg (10,000 lb) or less manufactured on or after September 1, 2007 and before September 1, 2008, that, as originally manufactured, comply with FMVSS Nos. 110, 118, 201, 202, 208, 213, 214, and 216, and insofar as they are applicable, with FMVSS Nos. 138 and 225; (g) All multipurpose passenger vehicles, trucks, and buses with a GVWR of 4,536 kg (10,000 lb) or less manufactured on or after September 1, 2008 and before September 1, 2011, that, as originally manufactured, comply with FMVSS Nos. 110, 118, 201, 202a, 206, 208, 213, 214, and 216, and insofar as they are applicable, with FMVSS Nos. 138 and 225; (h) All multipurpose passenger vehicles, trucks, and buses with a GVWR of 4,536 kg (10,000 lb) or less manufactured on or after September 1, 2011 and before September 1, 2012, that, as originally manufactured, comply with FMVSS Nos. 110, 118, 126, 201, 202a, 206, 208, 213, 214, and 216, and insofar as they are applicable, with FMVSS Nos. 138 and 225. VSA–82 ...... All multipurpose passenger vehicles, trucks, and buses with a GVWR greater than 4,536 kg (10,000 lb) that are less than 25 years old. VSA–83 ...... All trailers and motorcycles less than 25 years old.

VEHICLES MANUFACTURED FOR OTHER THAN THE CANADIAN MARKET

Model Make Model type(s) Body year(s) VSP VSA VCP

Acura ...... Legend ...... 1988 51 ...... Acura ...... Legend ...... 1989 77 ...... Acura ...... Legend ...... 1990–1992 305 ...... Alfa Romeo ...... 164 ...... 1989 196 ...... Alfa Romeo ...... 164 ...... 1991 76 ...... Alfa Romeo ...... 164 ...... 1994 156 ...... Alfa Romeo ...... GTV ...... 1985 124 ...... Alfa Romeo ...... Spider ...... 1987 70 ...... Alfa Romeo ...... Spyder ...... 1992 503 ...... Alpina ...... B12 5.0 Sedan ...... 1988–1994 ...... 41 Aston Martin ...... Vanquish ...... 2002–2004 430 ...... Audi ...... 80 ...... 1988–1989 223 ...... Audi ...... 100 ...... 1989 93 ...... Audi ...... 100 ...... 1993 244 ...... Audi ...... 100 ...... 1990–1992 317 ...... Audi ...... 200 Quattro ...... 1985 160 ...... Audi ...... A4 ...... 1996–2000 352 ...... Audi ...... A4, RS4, S4 ...... 8D ...... 2000–2001 400 ...... Audi ...... A6 ...... 1998–1999 332 ...... Audi ...... A8 ...... 2000 424 ...... Audi ...... A8 ...... 1997–2000 337 ...... Audi ...... A8 Avant Quattro ...... 1996 238 ...... Audi ...... RS6 & RS Avant ...... 2003 443 ...... Audi ...... S6 ...... 1996 428 ...... Audi ...... S8 ...... 2000 424 ...... Audi ...... TT ...... 2000–2001 364 ...... Bentley ...... Arnage (manufactured 1/1/01–12/31/01) ...... 2001 473 ...... Bentley ...... Azure (LHD & RHD) ...... 1998 485 ...... Bimota (MC) ...... DB4 ...... 2000 397 ...... Bimota (MC) ...... SB8 ...... 1999–2000 397 ...... BMW ...... 316 ...... 1986 25 ......

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VEHICLES MANUFACTURED FOR OTHER THAN THE CANADIAN MARKET—Continued

Model Make Model type(s) Body year(s) VSP VSA VCP

BMW ...... 3 Series ...... 1998 462 ...... BMW ...... 3 Series ...... 1999 379 ...... BMW ...... 3 Series ...... 2000 356 ...... BMW ...... 3 Series ...... 2001 379 ...... BMW ...... 3 Series ...... 1995–1997 248 ...... BMW ...... 3 Series ...... 2003–2004 487 ...... BMW ...... 318i, 318iA ...... 1983 ...... 23 ...... BMW ...... 318i, 318iA ...... 1984–1985 ...... 23 ...... BMW ...... 318i, 318iA ...... 1986 ...... 23 ...... BMW ...... 318i, 318iA ...... 1987–1989 ...... 23 ...... BMW ...... 320, 320i, 320iA ...... 1984–1985 ...... 16 ...... BMW ...... 320i ...... 1990–1991 283 ...... BMW ...... 320i & 320iA ...... 1983 ...... 16 ...... BMW ...... 323i ...... 1983–1985 ...... 67 ...... BMW ...... 325, 325i, 325iA, 325E ...... 1985–1986 ...... 30 ...... BMW ...... 325e, 325eA ...... 1984–1987 ...... 24 ...... BMW ...... 325i ...... 1991 96 ...... BMW ...... 325i ...... 1992–1996 197 ...... BMW ...... 325i, 325iA ...... 1987–1989 ...... 30 ...... BMW ...... 325iS, 325iSA ...... 1987–1989 ...... 31 ...... BMW ...... 325iX ...... 1990 205 ...... BMW ...... 325iX, 325iXA ...... 1988–1989 ...... 33 ...... BMW ...... 5 Series ...... 1990–1995 194 ...... BMW ...... 5 Series ...... 1995–1997 249 ...... BMW ...... 5 Series ...... 1998–1999 314 ...... BMW ...... 5 Series ...... 2000 345 ...... BMW ...... 5 Series ...... 2000–2002 414 ...... BMW ...... 5 Series ...... 2003–2004 450 ...... BMW ...... 518i ...... 1986 4 ...... BMW ...... 520, 520i ...... 1983 ...... 68 ...... BMW ...... 520iA ...... 1989 9 ...... BMW ...... 524tdA ...... 1985–1986 ...... 26 ...... BMW ...... 525i ...... 1989 5 ...... BMW ...... 528e, 528eA ...... 1983–1988 ...... 21 ...... BMW ...... 528i, 528iA ...... 1983–1984 ...... 20 ...... BMW ...... 533i, 533iA ...... 1983–1984 ...... 22 ...... BMW ...... 535i, 535iA ...... 1985–1989 ...... 25 ...... BMW ...... 633CSi, 630CSiA ...... 1983–1984 ...... 18 ...... BMW ...... 635, 635CSi, 635CSiA ...... 1983–1984 ...... 27 ...... BMW ...... 635CSi, 635CSiA ...... 1985–1989 ...... 27 ...... BMW ...... 7 Series ...... 1990–1991 299 ...... BMW ...... 7 Series ...... 1992 232 ...... BMW ...... 7 Series ...... 1993–1994 299 ...... BMW ...... 7 Series ...... 1995–1999 313 ...... BMW ...... 7 Series ...... 1999–2001 366 ...... BMW ...... 728, 728i ...... 1983–1985 ...... 70 ...... BMW ...... 728i ...... 1986 14 ...... BMW ...... 730iA ...... 1988 6 ...... BMW ...... 732i ...... 1983–1984 ...... 72 ...... BMW ...... 733i, 733iA ...... 1983–1984 ...... 19 ...... BMW ...... 735, 735i, 735iA ...... 1983–1984 ...... 28 ...... BMW ...... 735i, 735iA ...... 1985–1989 ...... 28 ...... BMW ...... 745i ...... 1983–1986 ...... 73 ...... BMW ...... 8 Series ...... 1991–1995 361 ...... BMW ...... 850 Series ...... 1997 396 ...... BMW ...... 850i ...... 1990 10 ...... BMW ...... All other passenger car models except those in the ...... 1983–1989 ...... 78 ...... M1 and Z1 series. BMW ...... L7 ...... 1986–1987 ...... 29 ...... BMW ...... M3 ...... 1988–1989 ...... 35 ...... BMW ...... M5 ...... 1988 ...... 34 ...... BMW ...... M6 ...... 1987–1988 ...... 32 ...... BMW ...... X5 (manufactured 1/1/03–12/31/04) ...... 2003–2004 459 ...... BMW ...... Z3 ...... 1996–1998 260 ...... BMW ...... Z3 (European market) ...... 1999 483 ...... BMW ...... Z8 ...... 2000–2001 350 ...... BMW ...... Z8 ...... 2002 406 ...... BMW (MC) ...... C1 ...... 2000–2003 ...... 40 BMW (MC) ...... K1 ...... 1990–1993 228 ...... BMW (MC) ...... K100 ...... 1984–1992 285 ...... BMW (MC) ...... K1100, K1200 ...... 1993–1998 303 ......

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VEHICLES MANUFACTURED FOR OTHER THAN THE CANADIAN MARKET—Continued

Model Make Model type(s) Body year(s) VSP VSA VCP

BMW (MC) ...... K75 ...... 1996 ...... 36 BMW (MC) ...... K75S ...... 1987–1995 229 ...... BMW (MC) ...... R1100 ...... 1994–1997 231 ...... BMW (MC) ...... R1100 ...... 1998–2001 368 ...... BMW (MC) ...... R1100RS ...... 1994 177 ...... BMW (MC) ...... R1150GS ...... 2000 453 ...... BMW (MC) ...... R1200C ...... 1998–2001 359 ...... BMW (MC) ...... R80, R100 ...... 1986–1995 295 ...... Buell (MC) ...... All Models ...... 1995–2002 399 ...... Cadillac ...... DeVille ...... 1994–1999 300 ...... Cadillac ...... DeVille (manufactured 8/1/99–12/31/00) ...... 2000 448 ...... Cadillac ...... Seville ...... 1991 375 ...... Cagiva ...... Gran Canyon 900 motorcycle ...... 1999 444 ...... Carrocerias ...... Cimarron trailer ...... 2006–2007 ...... 37 Chevrolet ...... 400SS ...... 1995 150 ...... Chevrolet ...... Astro Van ...... 1997 298 ...... Chevrolet ...... Blazer ...... 1986 405 ...... Chevrolet ...... Blazer (plant code of ‘‘K’’ or ‘‘2’’ in the 11th posi- ...... 1997 349 ...... tion of the VIN). Chevrolet ...... Blazer (plant code of ‘‘K’’ or ‘‘2’’ in the 11th posi- ...... 2001 461 ...... tion of the VIN). Chevrolet ...... Camaro ...... 1999 435 ...... Chevrolet ...... Cavalier ...... 1997 369 ...... Chevrolet ...... Corvette ...... 1992 365 ...... Chevrolet ...... Corvette Coupe ...... 1999 419 ...... Chevrolet ...... Suburban ...... 1989–1991 242 ...... Chevrolet ...... Tahoe ...... 2000 504 ...... Chevrolet ...... Tahoe ...... 2001 501 ...... Chrysler ...... Daytona ...... 1992 344 ...... Chrysler ...... Grand Voyager ...... 1998 373 ...... Chrysler ...... LHS (Mexican market) ...... 1996 276 ...... Chrysler ...... Shadow (Middle Eastern market) ...... 1989 216 ...... Chrysler ...... Town and Country ...... 1993 273 ...... Citroen ...... XM ...... 1990–1992 ...... 1 Daimler ...... Limousine (LHD & RHD) ...... 1985 12 ...... Dodge ...... Ram ...... 1994–1995 135 ...... Ducati (MC) ...... 748 ...... 1999–2003 421 ...... Ducati (MC) ...... 851 ...... 1988 498 ...... Ducati (MC) ...... 888 ...... 1993 500 ...... Ducati (MC) ...... 900 ...... 2001 452 ...... Ducati (MC) ...... 916 ...... 1999–2003 421 ...... Ducati (MC) ...... 600SS ...... 1992–1996 241 ...... Ducati (MC) ...... 748 Biposto ...... 1996–1997 220 ...... Ducati (MC) ...... 900SS ...... 1991–1996 201 ...... Ducati (MC) ...... 996 Biposto ...... 1999–2001 475 ...... Ducati (MC) ...... 996R ...... 2001–2002 398 ...... Ducati (MC) ...... Monster 600 ...... 2001 407 ...... Ducati (MC) ...... ST4S ...... 1999–2005 474 ...... Eagle ...... Vision ...... 1994 323 ...... Ferrari ...... 456 ...... 1995 256 ...... Ferrari ...... 550 ...... 2001 377 ...... Ferrari ...... 575 ...... 2002–2003 415 ...... Ferrari ...... 575 ...... 2004–2005 507 ...... Ferrari ...... 208, 208 Turbo (all models) ...... 1983–1988 ...... 76 ...... Ferrari ...... 308 (all models) ...... 1983–1985 ...... 36 ...... Ferrari ...... 328 (all models) ...... 1985 ...... 37 ...... Ferrari ...... 328 (all models) ...... 1988–1989 ...... 37 ...... Ferrari ...... 328 GTS ...... 1986–1987 ...... 37 ...... Ferrari ...... 348 TB ...... 1992 86 ...... Ferrari ...... 348 TS ...... 1992 161 ...... Ferrari ...... 360 ...... 2001 376 ...... Ferrari ...... 360 (manufactured before 9/1/02) ...... 2002 402 ...... Ferrari ...... 360 (manufactured after 9/31/02) ...... 2002 433 ...... Ferrari ...... 360 Modena ...... 1999–2000 327 ...... Ferrari ...... 360 Spider & Coupe ...... 2003 410 ...... Ferrari ...... 360 Series ...... 2004 446 ...... Ferrari ...... 456 GT & GTA ...... 1999 445 ...... Ferrari ...... 456 GT & GTA ...... 1997–1998 408 ...... Ferrari ...... 512 TR ...... 1993 173 ...... Ferrari ...... 550 Marinello ...... 1997–1999 292 ...... Ferrari ...... Enzo ...... 2003–2004 436 ......

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VEHICLES MANUFACTURED FOR OTHER THAN THE CANADIAN MARKET—Continued

Model Make Model type(s) Body year(s) VSP VSA VCP

Ferrari ...... F355 ...... 1995 259 ...... Ferrari ...... F355 ...... 1999 391 ...... Ferrari ...... F355 ...... 1996–1998 355 ...... Ferrari ...... F430 (manufactured prior to 9/1/06) ...... 2005–2006 479 ...... Ferrari ...... F50 ...... 1995 226 ...... Ferrari ...... GTO ...... 1985 ...... 38 ...... Ferrari ...... Mondial (all models) ...... 1983–1989 ...... 74 ...... Ferrari ...... Testarossa ...... 1989 ...... 39 ...... Ferrari ...... Testarossa ...... 1987–1988 ...... 39 ...... Ford ...... Bronco (manufactured in Venezuela) ...... 1995–1996 265 ...... Ford ...... Escort (Nicaraguan market) ...... 1996 322 ...... Ford ...... Escort RS Cosworth ...... 1994–1995 ...... 9 Ford ...... Explorer (manufactured in Venezuela) ...... 1991–1998 268 ...... Ford ...... F150 ...... 2000 425 ...... Ford ...... Mustang ...... 1993 367 ...... Ford ...... Mustang ...... 1997 471 ...... Ford ...... Windstar ...... 1995–1998 250 ...... Freightliner ...... FLD12064ST ...... 1991–1996 179 ...... Freightliner ...... FTLD112064SD ...... 1991–1996 178 ...... GMC ...... Suburban ...... 1992–1994 134 ...... Harley Davidson (MC) ...... FX, FL, XL Series ...... 1983–1997 202 ...... Harley Davidson (MC) ...... FX, FL, XL Series ...... 1998 253 ...... Harley Davidson (MC) ...... FX, FL, XL Series ...... 1999 281 ...... Harley Davidson (MC) ...... FX, FL, XL Series ...... 2000 321 ...... Harley Davidson (MC) ...... FX, FL, XL Series ...... 2001 362 ...... Harley Davidson (MC) ...... FX, FL, XL Series ...... 2002 372 ...... Harley Davidson (MC) ...... FX, FL, XL Series ...... 2003 393 ...... Harley Davidson (MC) ...... FX, FL, XL Series ...... 2004 422 ...... Harley Davidson (MC) ...... FX, FL, XL Series ...... 2005 472 ...... Harley Davidson (MC) ...... FX, FL, XL Series ...... 2006 491 ...... Harley Davidson (MC) ...... FX, FL, XL, VR Series ...... 2007 506 ...... Harley Davidson (MC) ...... FXSTC Soft Tail Custom ...... 2007 499 ...... Harley Davidson (MC) ...... VRSCA ...... 2002 374 ...... Harley Davidson (MC) ...... VRSCA ...... 2003 394 ...... Harley Davidson (MC) ...... VRSCA ...... 2004 422 ...... Hatty ...... 45 ft double axle trailer ...... 1999–2000 ...... 38 Heku ...... 750 KG boat trailer ...... 2005 ...... 33 Hobby ...... Exclusive 650 KMFE Trailer ...... 2002–2003 ...... 29 Hobson ...... Horse Trailer ...... 1985 ...... 8 Honda ...... Accord ...... 1991 280 ...... Honda ...... Accord ...... 1992–1999 319 ...... Honda ...... Accord (sedan & wagon (RHD)) ...... 1994–1997 451 ...... Honda ...... Civic DX Hatchback ...... 1989 128 ...... Honda ...... CRV ...... 2002 447 ...... Honda ...... CR–V ...... 2005 489 ...... Honda ...... Prelude ...... 1989 191 ...... Honda ...... Prelude ...... 1994–1997 309 ...... Honda (MC) ...... CB 750 (CB750F2T) ...... 1996 440 ...... Honda (MC) ...... CB1000F ...... 1988 106 ...... Honda (MC) ...... CBR 250 ...... 1989–1994 ...... 22 Honda (MC) ...... CMX250C ...... 1983–1987 348 ...... Honda (MC) ...... CP450SC ...... 1986 174 ...... Honda (MC) ...... RVF 400 ...... 1994–2000 358 ...... Honda (MC) ...... VF750 ...... 1994–1998 290 ...... Honda (MC) ...... VFR 400 ...... 1994–2000 358 ...... Honda (MC) ...... VFR 400, RVF 400 ...... 1989–1993 ...... 24 Honda (MC) ...... VFR750 ...... 1990 34 ...... Honda (MC) ...... VFR750 ...... 1991–1997 315 ...... Honda (MC) ...... VFR800 ...... 1998–1999 315 ...... Honda (MC) ...... VT600 ...... 1991–1998 294 ...... Hyundai ...... Elantra ...... 1992–1995 269 ...... Hyundai ...... XG350 ...... 2004 494 ...... Jaguar ...... Sovereign ...... 1993 78 ...... Jaguar ...... S-Type ...... 2000–2002 411 ...... Jaguar ...... XJ6 ...... 1983 ...... 41 ...... Jaguar ...... XJ6 ...... 1984 ...... 41 ...... Jaguar ...... XJ6 ...... 1985–1986 ...... 41 ...... Jaguar ...... XJ6 ...... 1987 47 ...... Jaguar ...... XJ6 Sovereign ...... 1988 215 ...... Jaguar ...... XJS ...... 1983–1985 ...... 40 ...... Jaguar ...... XJS ...... 1986–1987 ...... 40 ......

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VEHICLES MANUFACTURED FOR OTHER THAN THE CANADIAN MARKET—Continued

Model Make Model type(s) Body year(s) VSP VSA VCP

Jaguar ...... XJS, XJ6 ...... 1988–1990 336 ...... Jaguar ...... XJS ...... 1991 175 ...... Jaguar ...... XJS ...... 1992 129 ...... Jaguar ...... XJS ...... 1994–1996 195 ...... Jaguar ...... XK–8 ...... 1998 330 ...... Jeep ...... Cherokee ...... 1993 254 ...... Jeep ...... Cherokee (European market) ...... 1991 211 ...... Jeep ...... Cherokee (LHD & RHD) ...... 1994 493 ...... Jeep ...... Cherokee (LHD & RHD) ...... 1995 180 ...... Jeep ...... Cherokee (LHD & RHD) ...... 1996 493 ...... Jeep ...... Cherokee (Venezuelan market) ...... 1992 164 ...... Jeep ...... Grand Cherokee ...... 1994 404 ...... Jeep ...... Grand Cherokee ...... 1997 431 ...... Jeep ...... Grand Cherokee ...... 2001 382 ...... Jeep ...... Grand Cherokee (LHD—Japanese market) ...... 1997 389 ...... Jeep ...... Liberty ...... 2002 466 ...... Jeep ...... Liberty (Mexican market) ...... 2004 457 ...... Jeep ...... Liberty ...... 2005 505 ...... Jeep ...... Wrangler ...... 1993 217 ...... Jeep ...... Wrangler ...... 1995 255 ...... Jeep ...... Wrangler ...... 1998 341 ...... Kawasaki (MC) ...... EL250 ...... 1992–1994 233 ...... Kawasaki (MC) ...... VN1500–P1/P2 series ...... 2003 492 ...... Kawasaki (MC) ...... ZX1000–B1 ...... 1988 182 ...... Kawasaki (MC) ...... ZX400 ...... 1987–1997 222 ...... Kawasaki (MC) ...... ZX6, ZX7, ZX9, ZX10, ZX11 ...... 1987–1999 312 ...... Kawasaki (MC) ...... ZX600 ...... 1985–1998 288 ...... Kawasaki (MC) ...... ZZR1100 ...... 1993–1998 247 ...... Ken-Mex ...... T800 ...... 1990–1996 187 ...... Kenworth ...... T800 ...... 1992 115 ...... Komet ...... Standard, Classic & Eurolite trailer ...... 2000–2005 477 ...... KTM (MC) ...... Duke II ...... 1995–2000 363 ...... Lamborghini ...... Diablo (except 1997 Coupe) ...... 1996–1997 416 ...... Lamborghini ...... Diablo Coupe ...... 1997 ...... 26 Lamborghini ...... Gallardo (manufactured 1/1/04–12/31/04) ...... 2004 458 ...... Lamborghini ...... Gallardo (manufactured 1/1/06–8/31/06) ...... 2006 508 ...... Lamborghini ...... Murcielago ...... Roadster ...... 2005 476 ...... Land Rover ...... Defender 110 ...... 1993 212 ...... Land Rover ...... Defender 90 (manufactured before 9/1/97) VIN ...... 1997 432 ...... ‘‘SALDV224*VA’’ or ‘‘SALDV324*VA’’. Land Rover ...... Discovery ...... 1994–1998 338 ...... Land Rover ...... Discovery (II) ...... 2000 437 ...... Land Rover ...... Range Rover ...... 2004 509 ...... Lexus ...... GS300 ...... 1993–1996 293 ...... Lexus ...... GS300 ...... 1998 460 ...... Lexus ...... RX300 ...... 1998–1999 307 ...... Lexus ...... SC300 ...... 1991–1996 225 ...... Lexus ...... SC400 ...... 1991–1996 225 ...... Lincoln ...... Mark VII ...... 1992 144 ...... Magni (MC) ...... Australia, Sfida ...... 1996–1999 264 ...... Maserati ...... Bi-Turbo ...... 1985 155 ...... Mazda ...... MPV ...... 2000 413 ...... Mazda ...... MX–5 Miata ...... 1990–1993 184 ...... Mazda ...... RX–7 ...... 1986 199 ...... Mazda ...... RX–7 ...... 1987–1995 279 ...... Mazda ...... Xedos 9 ...... 1995–2000 351 ...... Mercedes Benz ...... 190 ...... 201.022 ...... 1984 ...... 54 ...... Mercedes Benz ...... 200 ...... 124.020 ...... 1985 ...... 55 ...... Mercedes Benz ...... 200 ...... 123.220 ...... 1983–1985 ...... 52 ...... Mercedes Benz ...... 230 ...... 123.023 ...... 1983–1985 ...... 52 ...... Mercedes Benz ...... 250 ...... 123.026 ...... 1983 ...... 52 ...... Mercedes Benz ...... 250 ...... 123.026 ...... 1984–1985 ...... 52 ...... Mercedes Benz ...... 280 ...... 123.030 ...... 1983–1985 ...... 52 ...... Mercedes Benz ...... 190 D ...... 201.126 ...... 1984–1989 ...... 54 ...... Mercedes Benz ...... 190 D (2.2) ...... 201.122 ...... 1984–1989 ...... 54 ...... Mercedes Benz ...... 190 E ...... 201.024 ...... 1983 ...... 54 ...... Mercedes Benz ...... 190 E ...... 201.029 ...... 1986 ...... 54 ...... Mercedes Benz ...... 190 E ...... 201.024 ...... 1990 22 ...... Mercedes Benz ...... 190 E ...... 201.024 ...... 1991 45 ...... Mercedes Benz ...... 190 E ...... 201.028 ...... 1992 71 ...... Mercedes Benz ...... 190 E ...... 201.018 ...... 1992 126 ......

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VEHICLES MANUFACTURED FOR OTHER THAN THE CANADIAN MARKET—Continued

Model Make Model type(s) Body year(s) VSP VSA VCP

Mercedes Benz ...... 190 E ...... 1993 454 ...... Mercedes Benz ...... 190 E ...... 201.034 ...... 1984–1985 ...... 54 ...... Mercedes Benz ...... 190 E ...... 201.028 ...... 1986–1989 ...... 54 ...... Mercedes Benz ...... 190 E (2.3) ...... 201.024 ...... 1984–1989 ...... 54 ...... Mercedes Benz ...... 190 E (2.6) ...... 201.029 ...... 1987–1989 ...... 54 ...... Mercedes Benz ...... 190 E (2.6) 16 ...... 201.034 ...... 1986–1989 ...... 54 ...... Mercedes Benz ...... 200 D ...... 124.120 ...... 1986 17 ...... Mercedes Benz ...... 200 E ...... 124.021 ...... 1989 11 ...... Mercedes Benz ...... 200 E ...... 124.012 ...... 1991 109 ...... Mercedes Benz ...... 200 E ...... 124.019 ...... 1993 75 ...... Mercedes Benz ...... 200 TE ...... 124.081 ...... 1989 3 ...... Mercedes Benz ...... 220 E ...... 1993 168 ...... Mercedes Benz ...... 220 TE Station Wagon ...... 1993–1996 167 ...... Mercedes Benz ...... 230 CE ...... 124.043 ...... 1991 84 ...... Mercedes Benz ...... 230 CE ...... 123.043 ...... 1992 203 ...... Mercedes Benz ...... 230 CE ...... 123.243 ...... 1983–1984 ...... 52 ...... Mercedes Benz ...... 230 E ...... 124.023 ...... 1988 1 ...... Mercedes Benz ...... 230 E ...... 124.023 ...... 1989 20 ...... Mercedes Benz ...... 230 E ...... 124.023 ...... 1990 19 ...... Mercedes Benz ...... 230 E ...... 124.023 ...... 1991 74 ...... Mercedes Benz ...... 230 E ...... 124.023 ...... 1993 127 ...... Mercedes Benz ...... 230 E ...... 123.223 ...... 1983–1985 ...... 52 ...... Mercedes Benz ...... 230 E ...... 124.023 ...... 1985–1987 ...... 55 ...... Mercedes Benz ...... 230 T ...... 123.083 ...... 1983–1985 ...... 52 ...... Mercedes Benz ...... 230 TE ...... 124.083 ...... 1985 ...... 55 ...... Mercedes Benz ...... 230 TE ...... 124.083 ...... 1989 2 ...... Mercedes Benz ...... 230 TE ...... 123.283 ...... 1983–1985 ...... 52 ...... Mercedes Benz ...... 240 D ...... 123.123 ...... 1983–1985 ...... 52 ...... Mercedes Benz ...... 240 TD ...... 123.183 ...... 1983–1985 ...... 52 ...... Mercedes Benz ...... 250 D ...... 1992 172 ...... Mercedes Benz ...... 250 E ...... 1990–1993 245 ...... Mercedes Benz ...... 260 E ...... 124.026 ...... 1985 ...... 55 ...... Mercedes Benz ...... 260 E ...... 124.026 ...... 1986 ...... 55 ...... Mercedes Benz ...... 260 E ...... 124.026 ...... 1987–1989 ...... 55 ...... Mercedes Benz ...... 260 E ...... 124.026 ...... 1992 105 ...... Mercedes Benz ...... 260 SE ...... 126.020 ...... 1986 18 ...... Mercedes Benz ...... 260 SE ...... 126.020 ...... 1989 28 ...... Mercedes Benz ...... 280 CE ...... 123.053 ...... 1983–1985 ...... 52 ...... Mercedes Benz ...... 280 E ...... 1993 166 ...... Mercedes Benz ...... 280 E ...... 123.033 ...... 1983–1985 ...... 52 ...... Mercedes Benz ...... 280 S ...... 126.021 ...... 1983 ...... 53 ...... Mercedes Benz ...... 280 SE ...... 126.022 ...... 1983–1985 ...... 53 ...... Mercedes Benz ...... 280 SE ...... 116.024 ...... 1983–1988 ...... 51 ...... Mercedes Benz ...... 280 SEL ...... 126.023 ...... 1983–1985 ...... 53 ...... Mercedes Benz ...... 280 SL ...... 107.042 ...... 1983–1985 ...... 44 ...... Mercedes Benz ...... 280 TE ...... 123.093 ...... 1983–1985 ...... 52 ...... Mercedes Benz ...... 300 CD ...... 123.150 ...... 1983–1985 ...... 52 ...... Mercedes Benz ...... 300 CD ...... 123.153 ...... 1983–1985 ...... 52 ...... Mercedes Benz ...... 300 CE ...... 124.050 ...... 1988–1989 ...... 55 ...... Mercedes Benz ...... 300 CE ...... 124.051 ...... 1990 64 ...... Mercedes Benz ...... 300 CE ...... 124.051 ...... 1991 83 ...... Mercedes Benz ...... 300 CE ...... 124.050 ...... 1992 117 ...... Mercedes Benz ...... 300 CE ...... 124.061 ...... 1993 94 ...... Mercedes Benz ...... 300 D ...... 123.133 ...... 1983–1985 ...... 52 ...... Mercedes Benz ...... 300 D ...... 123.130 ...... 1983–1985 ...... 52 ...... Mercedes Benz ...... 300 D ...... 124.130 ...... 1985–1986 ...... 55 ...... Mercedes Benz ...... 300 D Turbo ...... 124.133 ...... 1985 ...... 55 ...... Mercedes Benz ...... 300 D Turbo ...... 124.193 ...... 1986 ...... 55 ...... Mercedes Benz ...... 300 D Turbo ...... 124.193 ...... 1987–1989 ...... 55 ...... Mercedes Benz ...... 300 DT ...... 124.133 ...... 1986–1989 ...... 55 ...... Mercedes Benz ...... 300 E ...... 124.030 ...... 1985 ...... 55 ...... Mercedes Benz ...... 300 E ...... 124.031 ...... 1992 114 ...... Mercedes Benz ...... 300 E ...... 124.030 ...... 1986–1989 ...... 55 ...... Mercedes Benz ...... 300 E 4-Matic ...... 1990–1993 192 ...... Mercedes Benz ...... 300 SD ...... 126.120 ...... 1983–1989 ...... 53 ...... Mercedes Benz ...... 300 SE ...... 126.024 ...... 1985 ...... 53 ...... Mercedes Benz ...... 300 SE ...... 126.024 ...... 1986–1987 ...... 53 ...... Mercedes Benz ...... 300 SE ...... 126.024 ...... 1988–1989 ...... 53 ...... Mercedes Benz ...... 300 SE ...... 126.024 ...... 1990 68 ...... Mercedes Benz ...... 300 SEL ...... 126.025 ...... 1986 ...... 53 ...... Mercedes Benz ...... 300 SEL ...... 126.025 ...... 1987 ...... 53 ......

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VEHICLES MANUFACTURED FOR OTHER THAN THE CANADIAN MARKET—Continued

Model Make Model type(s) Body year(s) VSP VSA VCP

Mercedes Benz ...... 300 SEL ...... 126.025 ...... 1988–1989 ...... 53 ...... Mercedes Benz ...... 300 SEL ...... 126.025 ...... 1990 21 ...... Mercedes Benz ...... 300 SL ...... 107.041 ...... 1989 7 ...... Mercedes Benz ...... 300 SL ...... 129.006 ...... 1992 54 ...... Mercedes Benz ...... 300 SL ...... 107.041 ...... 1986–1988 ...... 44 ...... Mercedes Benz ...... 300 TD ...... 123.190 ...... 1983–1985 ...... 52 ...... Mercedes Benz ...... 300 TD ...... 123.193 ...... 1983–1985 ...... 52 ...... Mercedes Benz ...... 300 TE ...... 124.090 ...... 1990 40 ...... Mercedes Benz ...... 300 TE ...... 1992 193 ...... Mercedes Benz ...... 300 TE ...... 124.090 ...... 1986–1989 ...... 55 ...... Mercedes Benz ...... 320 CE ...... 1993 310 ...... Mercedes Benz ...... 320 SL ...... 1992–1993 142 ...... Mercedes Benz ...... 380 SE ...... 126.032 ...... 1983 ...... 53 ...... Mercedes Benz ...... 380 SE ...... 126.043 ...... 1983–1989 ...... 53 ...... Mercedes Benz ...... 380 SE ...... 126.032 ...... 1984–1989 ...... 53 ...... Mercedes Benz ...... 380 SEL ...... 126.033 ...... 1983–1989 ...... 53 ...... Mercedes Benz ...... 380 SL ...... 107.045 ...... 1983–1989 ...... 44 ...... Mercedes Benz ...... 380 SLC ...... 107.025 ...... 1983–1989 ...... 44 ...... Mercedes Benz ...... 400 SE ...... 1992–1994 296 ...... Mercedes Benz ...... 420 E ...... 1993 169 ...... Mercedes Benz ...... 420 SE ...... 126.034 ...... 1985 ...... 53 ...... Mercedes Benz ...... 420 SE ...... 126.034 ...... 1986 ...... 53 ...... Mercedes Benz ...... 420 SE ...... 126.034 ...... 1987–1989 ...... 53 ...... Mercedes Benz ...... 420 SE ...... 1990–1991 230 ...... Mercedes Benz ...... 420 SEC ...... 1990 209 ...... Mercedes Benz ...... 420 SEL ...... 126.035 ...... 1986–1989 ...... 53 ...... Mercedes Benz ...... 420 SEL ...... 126.035 ...... 1990 48 ...... Mercedes Benz ...... 420 SL ...... 107.047 ...... 1986 ...... 44 ...... Mercedes Benz ...... 450 SEL ...... 116.033 ...... 1983–1988 ...... 51 ...... Mercedes Benz ...... 450 SEL (6.9) ...... 116.036 ...... 1983–1988 ...... 51 ...... Mercedes Benz ...... 450 SL ...... 107.044 ...... 1983–1989 ...... 44 ...... Mercedes Benz ...... 450 SLC ...... 107.024 ...... 1983–1989 ...... 44 ...... Mercedes Benz ...... 500 E ...... 124.036 ...... 1991 56 ...... Mercedes Benz ...... 500 SE ...... 126.036 ...... 1983–1986 ...... 53 ...... Mercedes Benz ...... 500 SE ...... 126.036 ...... 1988 35 ...... Mercedes Benz ...... 500 SE ...... 1990 154 ...... Mercedes Benz ...... 500 SE ...... 140.050 ...... 1991 26 ...... Mercedes Benz ...... 500 SEC ...... 126.044 ...... 1983 ...... 53 ...... Mercedes Benz ...... 500 SEC ...... 126.044 ...... 1984–1989 ...... 53 ...... Mercedes Benz ...... 500 SEC ...... 126.044 ...... 1990 66 ...... Mercedes Benz ...... 500 SEL ...... 126.037 ...... 1983 ...... 53 ...... Mercedes Benz ...... 500 SEL ...... 126.037 ...... 1984–1989 ...... 53 ...... Mercedes Benz ...... 500 SEL ...... 1990 153 ...... Mercedes Benz ...... 500 SEL ...... 126.037 ...... 1991 63 ...... Mercedes Benz ...... 500 SL ...... 107.046 ...... 1983 ...... 44 ...... Mercedes Benz ...... 500 SL ...... 107.046 ...... 1986–1989 ...... 44 ...... Mercedes Benz ...... 500 SL ...... 129.066 ...... 1989 23 ...... Mercedes Benz ...... 500 SL ...... 126.066 ...... 1991 33 ...... Mercedes Benz ...... 500 SL ...... 129.006 ...... 1992 60 ...... Mercedes Benz ...... 560 SEC ...... 126.045 ...... 1986–1989 ...... 53 ...... Mercedes Benz ...... 560 SEC ...... 126.045 ...... 1990 141 ...... Mercedes Benz ...... 560 SEC ...... 1991 333 ...... Mercedes Benz ...... 560 SEL ...... 126.039 ...... 1986–1989 ...... 53 ...... Mercedes Benz ...... 560 SEL ...... 126.039 ...... 1990 89 ...... Mercedes Benz ...... 560 SEL ...... 140 ...... 1991 469 ...... Mercedes Benz ...... 560 SL ...... 107.048 ...... 1986–1989 ...... 44 ...... Mercedes Benz ...... 600 SEC Coupe ...... 1993 185 ...... Mercedes Benz ...... 600 SEL ...... 140.057 ...... 1993–1998 271 ...... Mercedes Benz ...... 600 SL ...... 129.076 ...... 1992 121 ...... Mercedes Benz ...... All other passenger car models except Model ID ...... 1983–1989 ...... 77 ...... 114 and 115 with sales designations ‘‘long,’’ ‘‘station wagon,’’ or ‘‘ambulance’’. Mercedes Benz ...... C 320 ...... 203 ...... 2001–2002 441 ...... Mercedes Benz ...... C Class ...... 1994–1999 331 ...... Mercedes Benz ...... C Class ...... 203 ...... 2000–2001 456 ...... Mercedes Benz ...... CL 500 ...... 1998 277 ...... Mercedes Benz ...... CL 500 ...... 1999–2001 370 ...... Mercedes Benz ...... CL 600 ...... 1999–2001 370 ...... Mercedes Benz ...... CLK 320 ...... 1998 357 ...... Mercedes Benz ...... CLK Class ...... 1999–2001 380 ...... Mercedes Benz ...... CLK-Class ...... 209 ...... 2002–2005 478 ......

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VEHICLES MANUFACTURED FOR OTHER THAN THE CANADIAN MARKET—Continued

Model Make Model type(s) Body year(s) VSP VSA VCP

Mercedes Benz ...... E 200 ...... 1994 207 ...... Mercedes Benz ...... E 200 ...... 1995–1998 278 ...... Mercedes Benz ...... E 220 ...... 1994–1996 168 ...... Mercedes Benz ...... E 250 ...... 1994–1995 245 ...... Mercedes Benz ...... E 280 ...... 1994–1996 166 ...... Mercedes Benz ...... E 320 ...... 1994–1998 240 ...... Mercedes Benz ...... E 320 ...... 211 ...... 2002–2003 418 ...... Mercedes Benz ...... E 320 Station Wagon ...... 1994–1999 318 ...... Mercedes Benz ...... E 420 ...... 1994–1996 169 ...... Mercedes Benz ...... E 500 ...... 1994 163 ...... Mercedes Benz ...... E 500 ...... 1995–1997 304 ...... Mercedes Benz ...... E Class ...... W210 ...... 1996–2002 401 ...... Mercedes Benz ...... E Class ...... 211 ...... 2003–2004 429 ...... Mercedes Benz ...... E Series ...... 1991–1995 354 ...... Mercedes Benz ...... G-Wagon ...... 463 ...... 1996 ...... 11 Mercedes Benz ...... G-Wagon ...... 463 ...... 1997 ...... 15 Mercedes Benz ...... G-Wagon ...... 463 ...... 1998 ...... 16 Mercedes Benz ...... G-Wagon ...... 463 ...... 1999–2000 ...... 18 Mercedes Benz ...... G-Wagon 300 ...... 463.228 ...... 1990–1992 ...... 5 Mercedes Benz ...... G-Wagon 300 ...... 463.228 ...... 1993 ...... 3 Mercedes Benz ...... G-Wagon 300 ...... 463.228 ...... 1994 ...... 5 Mercedes Benz ...... G-Wagon LWB V–8 ...... 463 ...... 1992–1996 ...... 13 Mercedes Benz ...... G-Wagon 320 LWB ...... 463 ...... 1995 ...... 6 Mercedes Benz ...... G-Wagon 5 DR LWB ...... 463 ...... 2001 ...... 21 Mercedes Benz ...... G-Wagon 5 DR LWB ...... 463 ...... 2002 392 ...... Mercedes Benz ...... G-Wagon SWB ...... 463 ...... 1990–1996 ...... 14 Mercedes Benz ...... G-Wagon SWB Cabriolet & 3DR ...... 463 ...... 2001–2003 ...... 25 Mercedes Benz ...... G-Wagon SWB Cabriolet & 3DR ...... 463 ...... 2004 ...... 28 Mercedes Benz ...... G-Wagon SWB ...... 463 ...... 2005 ...... 31 Mercedes Benz ...... G-Wagon SWB Cabriolet & 3DR (manufactured 463 ...... 2006 ...... 35 before 9/1/06). Mercedes Benz ...... Maybach ...... 2004 486 ...... Mercedes Benz ...... S 280 ...... 140.028 ...... 1994 85 ...... Mercedes Benz ...... S 320 ...... 1994–1998 236 ...... Mercedes Benz ...... S 420 ...... 1994–1997 267 ...... Mercedes Benz ...... S 500 ...... 1994–1997 235 ...... Mercedes Benz ...... S 500 ...... 2000–2001 371 ...... Mercedes Benz ...... S 600 ...... 1995–1999 297 ...... Mercedes Benz ...... S 600 ...... 2000–2001 371 ...... Mercedes Benz ...... S 600 Coupe ...... 1994 185 ...... Mercedes Benz ...... S 600L ...... 1994 214 ...... Mercedes Benz ...... S Class ...... 1993 395 ...... Mercedes Benz ...... S Class ...... 140 ...... 1991–1994 423 ...... Mercedes Benz ...... S Class ...... 1995–1998 342 ...... Mercedes Benz ...... S Class ...... 1998–1999 325 ...... Mercedes Benz ...... S Class ...... W220 ...... 1999–2002 387 ...... Mercedes Benz ...... S Class ...... 220 ...... 2002–2004 442 ...... Mercedes Benz ...... SE Class ...... 1992–1994 343 ...... Mercedes Benz ...... SEL Class ...... 140 ...... 1992–1994 343 ...... Mercedes Benz ...... SL Class ...... 1993–1996 329 ...... Mercedes Benz ...... SL Class ...... W129 ...... 1997–2000 386 ...... Mercedes Benz ...... SL Class ...... R230 ...... 2001–2002 ...... 19 Mercedes Benz ...... SL-Class (European market) ...... 230 ...... 2003–2005 470 ...... Mercedes Benz ...... SLK ...... 1997–1998 257 ...... Mercedes Benz ...... SLK ...... 2000–2001 381 ...... Mercedes Benz (truck) ...... Sprinter ...... 2001–2005 468 ...... Mini ...... Cooper (European market) ...... Convertible ...... 2005 482 ...... Mitsubishi ...... Galant Super Salon ...... 1989 13 ...... Mitsubishi ...... Galant VX ...... 1988 8 ...... Mitsubishi ...... Pajero ...... 1984 170 ...... Moto Guzzi (MC) ...... California ...... 2000–2001 495 ...... Moto Guzzi (MC) ...... California EV ...... 2002 403 ...... Moto Guzzi (MC) ...... Daytona ...... 1993 118 ...... Moto Guzzi (MC) ...... Daytona RS ...... 1996–1999 264 ...... MV Agusta (MC) ...... F4 ...... 2000 420 ...... Nissan ...... 240SX ...... 1988 162 ...... Nissan ...... 300ZX ...... 1984 198 ...... Nissan ...... GTS & GTR (RHD) a.k.a. ‘‘Skyline’’ (manufactured R33 ...... 1996–1998 ...... 32 1/96–6/98). Nissan ...... Maxima ...... 1989 138 ...... Nissan ...... Pathfinder ...... 1987–1995 316 ......

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VEHICLES MANUFACTURED FOR OTHER THAN THE CANADIAN MARKET—Continued

Model Make Model type(s) Body year(s) VSP VSA VCP

Nissan ...... Pathfinder ...... 2002 412 ...... Nissan ...... Stanza ...... 1987 139 ...... Peugeot ...... 405 ...... 1989 65 ...... Plymouth ...... Voyager ...... 1996 353 ...... Pontiac ...... Firebird Trans Am ...... 1995 481 ...... Pontiac (MPV) ...... Trans Sport ...... 1993 189 ...... Porsche ...... 911 ...... 1997–2000 346 ...... Porsche ...... 928 ...... 1991–1996 266 ...... Porsche ...... 928 ...... 1993–1998 272 ...... Porsche ...... 944 ...... 1983 ...... 61 ...... Porsche ...... 911 (996) Carrera ...... 2002–2004 439 ...... Porsche ...... 911 (996) GT3 ...... 2004 438 ...... Porsche ...... 911 C4 ...... 1990 29 ...... Porsche ...... 911 Cabriolet ...... 1984–1989 ...... 56 ...... Porsche ...... 911 Carrera ...... 1983–1989 ...... 56 ...... Porsche ...... 911 Carrera 2 & Carrera 4 ...... 1992 52 ...... Porsche ...... 911 Carrera ...... 1993 165 ...... Porsche ...... 911 Carrera ...... 1994 103 ...... Porsche ...... 911 Carrera ...... 1995–1996 165 ...... Porsche ...... 911 Coupe ...... 1983–1989 ...... 56 ...... Porsche ...... 911 Targa ...... 1983–1989 ...... 56 ...... Porsche ...... 911 Turbo ...... 1992 125 ...... Porsche ...... 911 Turbo ...... 2001 347 ...... Porsche ...... 911 Turbo ...... 1983–1989 ...... 56 ...... Porsche ...... 924 Coupe ...... 1983–1989 ...... 59 ...... Porsche ...... 924 S ...... 1987–1989 ...... 59 ...... Porsche ...... 924 Turbo Coupe ...... 1983–1989 ...... 59 ...... Porsche ...... 928 Coupe ...... 1983–1989 ...... 60 ...... Porsche ...... 928 GT ...... 1983–1989 ...... 60 ...... Porsche ...... 928 S Coupe ...... 1983–1989 ...... 60 ...... Porsche ...... 928 S4 ...... 1983–1989 ...... 60 ...... Porsche ...... 928 S4 ...... 1990 210 ...... Porsche ...... 944 Coupe ...... 1984–1989 ...... 61 ...... Porsche ...... 944 S Cabriolet ...... 1990 97 ...... Porsche ...... 944 S Coupe ...... 1987–1989 ...... 61 ...... Porsche ...... 944 S2 (2-door Hatchback) ...... 1990 152 ...... Porsche ...... 944 Turbo Coupe ...... 1985–1989 ...... 61 ...... Porsche ...... 946 Turbo ...... 1994 116 ...... Porsche ...... All other passenger car models except Model 959 ...... 1983–1989 ...... 79 ...... Porsche ...... Boxster ...... 1997–2001 390 ...... Porsche ...... Boxster (manufactured before 9/1/02) ...... 2002 390 ...... Porsche ...... Carrera GT ...... 2004–2005 463 ...... Porsche ...... Cayenne ...... 2003–2004 464 ...... Porsche ...... GT2 ...... 2001 ...... 20 Porsche ...... GT2 ...... 2002 388 ...... Rolls Royce ...... Bentley ...... 1987–1989 340 ...... Rolls Royce ...... Bentley Brooklands ...... 1993 186 ...... Rolls Royce ...... Bentley Continental R ...... 1990–1993 258 ...... Rolls Royce ...... Bentley Turbo ...... 1986 53 ...... Rolls Royce ...... Bentley Turbo R ...... 1995 243 ...... Rolls Royce ...... Bentley Turbo R ...... 1992–1993 291 ...... Rolls Royce ...... Camargue ...... 1984–1985 122 ...... Rolls Royce ...... Corniche ...... 1983–1985 339 ...... Rolls Royce ...... Phantom ...... 2004 455 ...... Rolls Royce ...... Silver Spur ...... 1984 188 ...... Saab ...... 9.3 ...... 2003 426 ...... Saab ...... 900 ...... 1983 158 ...... Saab ...... 9000 ...... 1988 59 ...... Saab ...... 9000 ...... 1994 334 ...... Saab ...... 900 S ...... 1987–1989 270 ...... Saab ...... 900 SE ...... 1990–1994 219 ...... Saab ...... 900 SE ...... 1995 213 ...... Saab ...... 900 SE ...... 1996–1997 219 ...... Smart Car ...... Fortwo coupe & cabriolet (incl. trim levels passion, ...... 2005 ...... 30 pulse, & pure). Smart Car ...... Fortwo coupe & cabriolet (incl. trim levels passion, ...... 2002–2004 ...... 27 pulse, & pure). Smart Car ...... Fortwo coupe & cabriolet (incl. trim levels passion, ...... 2006 ...... 34 pulse, & pure) (manufactured before 9/1/06). Smart Car ...... Fortwo coupe & cabriolet (incl. trim levels passion, ...... 2007 ...... 39 pulse, & pure) (manufactured before 9/1/06).

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VEHICLES MANUFACTURED FOR OTHER THAN THE CANADIAN MARKET—Continued

Model Make Model type(s) Body year(s) VSP VSA VCP

Suzuki (MC) ...... GS 850 ...... 1985 111 ...... Suzuki (MC) ...... GSF 750 ...... 1996–1998 287 ...... Suzuki (MC) ...... GSX 750 ...... 1983 208 ...... Suzuki (MC) ...... GSX1300R a.k.a. ‘‘Hayabusa’’ ...... 1999–2006 484 ...... Suzuki (MC) ...... GSX–R 1100 ...... 1986–1997 227 ...... Suzuki (MC) ...... GSX–R 750 ...... 1986–1998 275 ...... Suzuki (MC) ...... GSX–R 750 ...... 1999–2003 417 ...... Toyota ...... 4-Runner ...... 1998 449 ...... Toyota ...... Avalon ...... 1995–1998 308 ...... Toyota ...... Camry ...... 1987–1988 ...... 63 ...... Toyota ...... Camry ...... 1989 39 ...... Toyota ...... Celica ...... 1987–1988 ...... 64 ...... Toyota ...... Corolla ...... 1987–1988 ...... 65 ...... Toyota ...... Land Cruiser ...... 1983–1988 252 ...... Toyota ...... Land Cruiser ...... 1989 101 ...... Toyota ...... Land Cruiser ...... 1990–1996 218 ...... Toyota ...... MR2 ...... 1990–1991 324 ...... Toyota ...... Previa ...... 1991–1992 326 ...... Toyota ...... Previa ...... 1993–1997 302 ...... Toyota ...... RAV4 ...... 1996 328 ...... Toyota ...... RAV4 ...... 2005 480 ...... Toyota ...... Van ...... 1987–1988 200 ...... Triumph (MC) ...... Thunderbird ...... 1995–1999 311 ...... Vespa (MC) ...... ET2, ET4 ...... 2001–2002 378 ...... Vespa (MC) ...... LX and PX ...... 2004–2005 496 ...... Volkswagen ...... Eurovan ...... 1993–1994 306 ...... Volkswagen ...... Golf ...... 1987 159 ...... Volkswagen ...... Golf ...... 1988 80 ...... Volkswagen ...... Golf ...... 2005 502 ...... Volkswagen ...... Golf III ...... 1993 92 ...... Volkswagen ...... Golf Rallye ...... 1988 73 ...... Volkswagen ...... Golf Rallye ...... 1989 467 ...... Volkswagen ...... GTI (Canadian market) ...... 1991 149 ...... Volkswagen ...... Jetta ...... 1994–1996 274 ...... Volkswagen ...... Passat ...... Wagon & Sedan .... 2004 488 ...... Volkswagen ...... Passat 4-door Sedan ...... 1992 148 ...... Volkswagen ...... Scirocco ...... 1986 42 ...... Volkswagen ...... Transporter ...... 1986–1987 490 ...... Volkswagen ...... Transporter ...... 1988–1989 284 ...... Volkswagen ...... Transporter ...... 1990 251 ...... Volvo ...... 740 GL ...... 1992 137 ...... Volvo ...... 740 Sedan ...... 1988 87 ...... Volvo ...... 850 Turbo ...... 1995–1998 286 ...... Volvo ...... 940 GL ...... 1992 137 ...... Volvo ...... 940 GL ...... 1993 95 ...... Volvo ...... 945 GL ...... Wagon ...... 1994 132 ...... Volvo ...... 960 Sedan & Wagon ...... 1994 176 ...... Volvo ...... C70 ...... 2000 434 ...... Volvo ...... S70 ...... 1998–2000 335 ...... Yamaha (MC) ...... Drag Star 1100 ...... 1999–2007 497 ...... Yamaha (MC) ...... FJ1200 (4 CR) ...... 1991 113 ...... Yamaha (MC) ...... FJR 1300 ...... 2002 ...... 23 Yamaha (MC) ...... R1 ...... 2000 360 ...... Yamaha (MC) ...... RD–350 ...... 1983 171 ...... Yamaha (MC) ...... Virago ...... 1990–1998 301 ......

Issued on: September 23, 2008. Ronald L. Medford, Senior Associate Administrator for Vehicle Safety. [FR Doc. E8–22831 Filed 9–29–08; 8:45 am] BILLING CODE 4910–59–P

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Proposed Rules Federal Register Vol. 73, No. 190

Tuesday, September 30, 2008

This section of the FEDERAL REGISTER Ave., SW., Suite 240, Washington, DC transformation in response to the impact contains notices to the public of the proposed 20024. of technology and globalization of issuance of rules and regulations. The • Federal eRulemaking Portal: Go to financial markets. FSA’s current interest purpose of these notices is to give interested http://www.regulations.gov. Follow the rate policies that are tied to the rate of persons an opportunity to participate in the online instructions for submitting an average customer are no longer rule making prior to the adoption of the final rules. comments. consistent with industry pricing Comments may be inspected in the practices that generally consider the Office of the Director, Loan Making anticipated risks, costs, market DEPARTMENT OF AGRICULTURE Division, Farm Services Agency, USDA, competition, and terms of the loan or Suite 240, 1280 Maryland Ave., SW., with the practices of other government Farm Service Agency Washington, DC 20024, between 8 a.m. agencies that administer similar and 4:30 p.m., except holidays. programs. For example, the Small 7 CFR Parts 761 and 762 FOR FURTHER INFORMATION CONTACT: Business Administration has imposed RIN 0560–AH66 Trent Rogers, Senior Loan Officer, Loan rate ceilings which are linked to the Making Division, Farm Service Agency; ‘‘prime’’ rate or other index, depending Maximum Interest Rates on telephone: (202) 720–3889; facsimile: on loan size, terms, and rate structure. Guaranteed Farm Loans (202) 720–6797; e-mail: FSA believes that the FSA guarantee [email protected]. Persons compensates the lender for much of the AGENCY: Farm Service Agency, USDA. with disabilities or who require lender’s risk of loss and that the interest ACTION: Proposed rule. alternative means for communications rate charged by the lender to the should contact the USDA Target Center producer should reflect that reduced SUMMARY: The Farm Service Agency at (202) 720–2600 (voice and TDD). risk. The changes proposed are (FSA) is proposing to amend its SUPPLEMENTARY INFORMATION: consistent with that policy. In this rule guaranteed farm loan program FSA is proposing to eliminate the term regulations governing interest rates to Background ‘‘average agricultural loan customer’’ increase clarity and to be more FSA guaranteed loans are a means of from 7 CFR 762.124(a)(2) and (3). FSA consistent with other government loan providing credit to farmers whose proposes new interest rate limits based guarantee programs. FSA is proposing to financial risk exceeds a level acceptable on widely recognized indices, which tie the maximum interest rate that may to commercial lenders. The guarantee will provide simple, clear limits rather be charged on FSA guaranteed farm reduces the lender’s risk of default and than an ‘‘average’’ customer. For lenders loans to nationally published indices loss, and thus the lender’s credit cost. who use a formal written risk-based such as the Wall Street Journal Prime FSA believes that part of the intent of pricing model for loans, the option to (also known as New York Prime), or the the program is for the borrower to use the rate charged to moderate risk 10-year Treasury note rate unless the receive the benefit of the reduction in borrowers will still be included in the lender uses a formal written risk-based the lender’s credit cost in the form of a regulation. pricing model for loans, in which case lower interest rate. FSA has selected the indices that it the rate will be the rate charged to The existing regulation, 7 CFR believes most accurately represent moderate risk borrowers. This proposed 762.124(a)(3), limits the interest rate current rates. FSA has conducted an rule specifically asks for comments on that a lender may charge guaranteed analysis of its guarantee portfolio and the index to be used and the maximum loan customers to a rate that does not the rates lenders have charged their allowable spread between the base rate exceed the rate charged to its ‘‘average agricultural loan customers since 1999 and the rate to be charged to FSA agricultural loan customers’’ as defined in order to identify a correlation guaranteed borrowers. in § 761.2. Currently, 7 CFR between these rates and a published DATES: We will consider comments that 762.124(a)(2) states that variable rates, if index. That analysis indicated that the we receive by December 1, 2008. used, may change according to the 10-year Treasury note rate was the index ADDRESSES: We invite you to submit normal practices of the lender for its that most closely tracked farm real comments on this proposed rule. In average agricultural loan customer, but estate loans and Wall Street Journal your comment, include the volume, the frequency of change must be specific prime was the index that most closely date, and page number of this issue of in the loan instrument. Some lenders tracked short and intermediate term the Federal Register. You may submit have indicated that the term ‘‘average loans. The rate for 10 year Treasury comments by any of the following agricultural loan customer’’ is overly notes is the yield on 10 year Treasury methods: vague and have encouraged the agency notes issued by the U.S. Department of • E-Mail: [email protected]. to review its current interest rate policy. the Treasury through the Bureau of • Fax: (202) 720–6797. FSA proposes to clarify this section of Public Debt. The Wall Street Journal • Mail: Director, Loan Making the regulations to simplify compliance prime is the rate that at least 23 of the Division, Farm Service Agency, U.S. for stakeholders by setting a maximum 30 largest U.S. banks charge for Department of Agriculture, 1400 rate based on certain widely published corporate loans, as published in the Independence Avenue, SW., Stop 0522, indices, while permitting the continued print edition of the Wall Street Journal. Washington, DC 20250–0522. use of risk-based pricing models for It is sometimes called the New York • Hand Delivery or Courier: Deliver lenders that prefer that approach. Prime rate. comments to Farm Service Agency, The agriculture credit industry The average rate charged on Loan Making Division, 1280 Maryland continues to undergo rapid guaranteed Farm Ownership (FO) loans

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since 1999 was 291 basis points (2.91 highest rate for that tier. Specific Executive Order 12612 percent) over the 10-year Treasury rate. comments are requested to further FSA proposes to limit the interest rate define this moderate risk agricultural It has been determined under section charged on guaranteed FO loans to no loan rate. The lender will be required to 6(a) of Executive Order 12612, more than 350 basis points (3.5 percent) provide the Agency with their pricing Federalism, that this rule does not have over the 10-year Treasury rate. Of the model. sufficient federalism implications to FO loans made since 1999, most would Again, FSA is inviting comments that warrant the preparation of a Federalism have met this interest rate limit, had it will address the indices to be used, as Assessment. The provisions contained been in effect. well as the maximum yield spreads. in this rule will not have a substantial The average rate charged on FSA is attempting to adhere to current direct effect on States or their political guaranteed Operating Loans (OL) during lending standards, propose changes that subdivisions or on the distribution of the same time period was New York will provide clear and straightforward power and responsibilities among the Prime plus 195 basis points (1.95 guidance for lenders to improve lender various levels of government. percent). FSA proposes to limit the compliance, allow guaranteed loan guaranteed OL interest rate to no more borrowers to receive the benefit Executive Order 12372 than 250 basis points (2.5 percent) over resulting from the reduced risk of loss These regulations are not subject to the New York Prime rate. Had the with a guarantee, and to promote active the provisions of Executive Order proposed interest rate limit been in competition among lenders. FSA 12372, which require intergovernmental effect, most of the guaranteed OLs made proposes to reserve the right to change consultation with State and local since 1999 would have met this limit. the maximum rates on a temporary basis officials. See the notice related to 7 CFR These limits will apply to both fixed by Federal Register notice to ensure part 3015, subpart V, published at 48 FR and variable rate guaranteed loans and liquidity in the farm loan market, as 29115, June 24, 1983. lines of credit. determined in consultation with the FSA realizes that financial markets Department of the Treasury, in response Executive Order 12988 can be very volatile and that lenders use to conditions that result in large interest various methodologies to manage their rate changes or term structure changes. This rule has been reviewed under funding sources. This proposal does not Examples of these conditions include Executive Order 12988, on Civil Justice require that the lender tie its guaranteed increased loan losses in the sector or Reform. The provisions of this rule are loan interest rates to these indices, nor significant changes in the yield curve. not retroactive. The provisions of this does it require that the rate remain rule preempt State and local laws to the below these maximums throughout the Executive Order 12866 extent such State and local laws are term of the loan. It only sets the This rule has been designated as not inconsistent. Generally, all maximum rate that may be charged to significant under Executive Order 12866 administrative appeal provisions, the customer at the time of loan and has not been reviewed by the Office including those published at 7 CFR part origination. In addition, to ensure that of Management and Budget. 11, must be exhausted before any action the benefit of the guarantee is passed on for judicial review may be brought in Regulatory Flexibility Act to borrowers in financial distress, these connection with the matters that are the interest rate limits will apply to In accordance with the Regulatory subject of this rule. guaranteed loans at such time that they Flexibility Act, 5 U.S.C. 601, FSA are restructured, too. FSA is specifically certifies that there would not be a Environmental Evaluation significant economic impact on a requesting comments on the suitability The environmental impacts of this substantial number of small entities. of using these indices or rule have been considered in a manner recommendations for another index, This rule is not expected to change the consistent with the provisions of the such as a London Inter Bank Offered ability of applicants, borrowers, or National Environmental Policy Act Rate (known as LIBOR), or the Farmer lenders to receive FSA guaranteed (NEPA), 42 U.S.C. 4321–4347, the Mac II cost of funds index or alternative loans, and would not increase the costs regulations of the Council on methodologies for setting maximum of compliance with the program. Environmental Quality, 40 CFR parts interest rates. Further, all applicants or borrowers 1500–1508, and the FSA regulations for FSA also realizes that some lenders affected by this change are small, but no compliance with NEPA (7 CFR 799 and have well developed risk based pricing lenders are considered small entities. 7 CFR part 1940, subpart G). FSA models and are able to document how Changes will be applied to all affected concluded that this rule will not have a the interest rate on a guaranteed loan entities equally, however, without significant impact on the quality of the reflects the reduced risk of loss due to regard to their size. the guarantee. FSA is proposing to human environment either individually continue to permit such lenders to price Unfunded Mandates Reform Act of or cumulatively and therefore is guaranteed loans at a rate not exceeding 1995 categorically excluded and not subject the rate charged to their typical, Title II of the Unfunded Mandates to environmental assessments or moderate risk agricultural loan Reform Act of 1995 (UMRA) establishes environmental impact statements in customer. The rate charged this requirements for Federal agencies to accordance with 7 CFR 1940.310(e)(3). customer would be limited to no more assess the effects of their regulatory Paperwork Reduction Act of 1995 than the highest interest rate for the tier actions on State, local, and tribal of the lender’s risk rating matrix that governments and the private sector. The information collections to which reflects moderate risk. This would This rule contains no Federal mandates this rule applies have been reviewed by typically be the lender’s middle tier, or (under the regulatory provisions of title OMB under the Paperwork Reduction for those lenders with an even number II of the UMRA) for State, local, and Act of 1995 (44 U.S.C. chapter 35), of tiers, a rate no higher than an average tribal governments or the private sector. approved, and assigned OMB control of the lender’s two middle tiers. If such Therefore, this rule is not subject to the number 0560–0155. This rule involves tier had a range of interest rates, the requirements of sections 202 and 205 of no change to the currently approved maximum rate permitted would be the the UMRA. collection of information.

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E-Government Act Compliance (ii) For lenders without a risk based Minimum Capital Ratios; Capital FSA is committed to complying with pricing model, the 10-year Treasury rate Adequacy Guidelines; Capital the E-Government Act, to promote the plus 350 basis points for FO and the Maintenance; Capital: Deduction of use of the Internet and other New York Prime (as published in the Goodwill Net of Associated Deferred information technologies to provide Wall Street Journal) plus 250 basis Tax Liability increased opportunities for citizen points for OL. In the event of extraordinary conditions resulting in AGENCIES: Office of the Comptroller of access to Government information and the Currency, Treasury; Board of services, and for other purposes. large interest rate changes or term structure changes, the Agency may Governors of the Federal Reserve List of Subjects temporarily set a different maximum System; Federal Deposit Insurance Corporation; and Office of Thrift 7 CFR Part 761 rate under this paragraph as determined in consultation with the Department of Supervision, Treasury. Accounting, Loan programs— the Treasury; and ACTION: Joint notice of proposed agriculture, Rural areas. * * * * * rulemaking. 7 CFR Part 762 5. Amend § 762.150 by revising SUMMARY: The Office of the Comptroller Agriculture, Credit, Loan programs— paragraph (g) to read as follows: of the Currency (OCC), the Board of agriculture, Grant programs— Governors of the Federal Reserve agriculture, Reporting and § 762.150 Interest Assistance Program. System (Board), the Federal Deposit recordkeeping requirements. * * * * * Insurance Corporation (FDIC), and the For the reasons set out in the (g) Rate of Interest. The lender interest Office of Thrift Supervision (OTS) preamble, 7 CFR parts 761 and 762 are rate will be set according to (collectively, the Agencies) are proposed to be amended as follows: § 762.124(a). proposing to permit banks, bank holding companies, and savings associations PART 761—GENERAL PROGRAM * * * * * (collectively, banking organizations) to ADMINISTRATION Signed at Washington, DC, on September reduce the amount of goodwill that a 1. The authority citation for part 761 24, 2008. banking organization must deduct from continues to read as follows: Glen L. Keppy, tier 1 capital by the amount of any Authority: 5 U.S.C. 301 and 7 U.S.C. 1989. Acting Administrator, Farm Service Agency. deferred tax liability associated with [FR Doc. E8–22871 Filed 9–29–08; 8:45 am] that goodwill. The proposed change would effectively reduce the amount of § 761.2 [Amended] BILLING CODE 3410–05–P goodwill that a banking organization 2. In § 761.2(b), remove the definition must deduct from tier 1 capital and of ‘‘average agricultural loan customer.’’ would reflect a banking organization’s PART 762—GUARANTEED FARM DEPARTMENT OF THE TREASURY maximum exposure to loss in the event LOANS that such goodwill is impaired or Office of the Comptroller of the derecognized for financial reporting 3. The authority citation for part 762 Currency purposes. continues to read as follows: DATES: Comments must be received on Authority: 5 U.S.C. 301, 7 U.S.C. 1989. 12 CFR Part 3 or before October 30, 2008. 4. Amend § 762.124 by revising ADDRESSES: Comments should be paragraphs (a)(2) and (a)(3) to read as [Docket ID OCC–2008–0014] directed to: follows: OCC: Because paper mail in the § 762.124 Interest rate, terms, charges, RIN 1557–AD13 Washington, DC area and at the OCC is and fees. subject to delay, commenters are (a) * * * FEDERAL RESERVE SYSTEM encouraged to submit comments by the (2) If a variable rate is used, it must Federal eRulemaking Portal or e-mail, if be tied to an index or rate specifically 12 CFR Parts 208 and 225 possible. Please use the title ‘‘Capital agreed to between the lender and Adequacy Guidelines; Deduction of borrower in the loan instruments and [Regulations H and Y; Docket No. R–1329] Goodwill Net of Associated Deferred the rate adjustments must be in Tax Liability’’ to facilitate the accordance with normal practices of the FEDERAL DEPOSIT INSURANCE organization and distribution of the lender for unguaranteed loans. Upon CORPORATION comments. You may submit comments request, the lender must provide the by any of the following methods: • Agency with copies of written rate 12 CFR Part 325 Federal eRulemaking Portal— adjustment practices. ‘‘Regulations.gov’’: Go to http:// www.regulations.gov, under the ‘‘More (3) At loan closing and at the time of RIN 3064–AD32 loan restructuring, the interest rate on Search Options’’ tab click next to the the guaranteed portion and the DEPARTMENT OF THE TREASURY ‘‘Advanced Docket Search’’ option unguaranteed portion of a fixed or where indicated, select ‘‘Comptroller of variable rate loan may not exceed the Office of Thrift Supervision the Currency’’ from the agency drop- following, as applicable: down menu, then click ‘‘Submit.’’ In the (i) For lenders utilizing a pricing ‘‘Docket ID’’ column, select ‘‘OCC– 12 CFR Part 567 model based on loan risk, the highest 2008–0014’’ to submit or view public interest rate for tier of the lender’s risk comments and to view supporting and rating matrix that reflects moderate risk. [Docket No. OTS–2008–0010] related materials for this notice of The lender must provide the Agency proposed rulemaking. The ‘‘How to Use with this pricing model. RIN 1550–AC22 This Site’’ link on the Regulations.gov

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home page provides information on • Agency Web Site: http:// ‘‘Docket ID’’ column, select ‘‘OTS– using Regulations.gov, including www.Federalreserve.gov. Follow the 2008–0010’’ to submit or view public instructions for submitting or viewing instructions for submitting comments at comments and to view supporting and public comments, viewing other http://www.Federalreserve.gov/ related materials for this notice of supporting and related materials, and generalinfo/foia/ProposedRegs.cfm. proposed rulemaking. The ‘‘How to Use viewing the docket after the close of the • Federal eRulemaking Portal: http:// This Site’’ link on the Regulations.gov comment period. www.regulations.gov. Follow the home page provides information on • E-mail: instructions for submitting comments. using Regulations.gov, including [email protected]. • E-mail: instructions for submitting or viewing • Mail: Office of the Comptroller of [email protected]. public comments, viewing other the Currency, 250 E Street, SW., Mail Include docket number in the subject supporting and related materials, and Stop 1–5, Washington, DC 20219. line of the message. viewing the docket after the close of the • Fax: (202) 874–4448. • Fax: (202) 452–3819 or (202) 452– comment period. • Hand Delivery/Courier: 250 E 3102. • E-mail address: Street, SW., Attn: Public Information • Mail: Jennifer J. Johnson, Secretary, [email protected]. Please Room, Mail Stop 1–5, Washington, DC Board of Governors of the Federal include OTS–2008–0010 in the subject 20219. Reserve System, 20th Street and line of the message and include your Instructions: You must include Constitution Avenue, NW., Washington, name and telephone number in the ‘‘OCC’’ as the agency name and ‘‘Docket DC 20551. message. Number OCC–2008–0014’’ in your • Fax: (202) 906–6518. comment. In general, OCC will enter all All public comments are available from • Mail: Regulation Comments, Chief comments received into the docket and the Board’s Web site at http:// Counsel’s Office, Office of Thrift publish them on the Regulations.gov www.Federalreserve.gov/generalinfo/ Supervision, 1700 G Street, NW., Web site without change, including any foia/ProposedRegs.cfm as submitted, Washington, DC 20552, Attention: OTS– business or personal information that unless modified for technical reasons. 2008–0010. you provide such as name and address Accordingly, your comments will not be • Hand Delivery/Courier: Guard’s information, e-mail addresses, or phone edited to remove any identifying or Desk, East Lobby Entrance, 1700 G numbers. Comments received, including contact information. Public comments Street, NW., from 9 a.m. to 4 p.m. on attachments and other supporting may also be viewed electronically or in business days, Attention: Regulation materials, are part of the public record paper form in Room MP–500 of the Comments, Chief Counsel’s Office, and subject to public disclosure. Do not Board’s Martin Building (20th and C OTS–2008–0010. enclose any information in your Streets, NW., Washington, DC) between Instructions: All submissions received comment or supporting materials that 9 a.m. and 5 p.m. on weekdays. must include the agency name and you consider confidential or FDIC: You may submit comments by docket number or Regulatory any of the following methods: Information Number (RIN) for this inappropriate for public disclosure. • You may review comments and other Federal eRulemaking Portal: http:// rulemaking. All comments received will related materials that pertain to this www.regulations.gov. Follow the be posted without change to the OTS notice of proposed rulemaking by any of instructions for submitting comments. Internet Site at http://www.ots.treas.gov/ • the following methods: Agency Web Site: http:// Supervision&Legal.Laws&Regulations, • Viewing Comments Electronically: www.FDIC.gov/regulations/laws/ including any personal information Go to http://www.regulations.gov, under federal/propose.html. provided. Comments received, • the ‘‘More Search Options’’ tab click Mail: Robert E. Feldman, Executive including attachments and other next to the ‘‘Advanced Document Secretary, Attention: Comments/Legal supporting materials, are part of the Search’’ option where indicated, select ESS, Federal Deposit Insurance public record and subject to public ‘‘Comptroller of the Currency’’ from the Corporation, 550 17th Street, NW., disclosure. Do not enclose any agency drop-down menu, then click Washington, DC 20429. information in your comment or • ‘‘Submit.’’ In the ‘‘Docket ID’’ column, Hand Delivered/Courier: The guard supporting materials that could be select ‘‘OCC–2008–0014’’ to view public station at the rear of the 550 17th Street considered confidential or inappropriate comments for this rulemaking action. Building (located on F Street) on for public disclosure. • Viewing Comments Personally: You business days between 7 a.m. and 5 p.m. • Viewing Comments Electronically: may personally inspect and photocopy • E-mail: [email protected]. Go to http://www.regulations.gov, under comments at the OCC’s Public Instructions: Comments submitted the ‘‘More Search Options’’ tab click Information Room, 250 E Street, SW., must include ‘‘FDIC’’ and ‘‘RIN # 3064– next to the ‘‘Advanced Document Washington, DC. For security reasons, AD32.’’ Comments received will be Search’’ option where indicated, select the OCC requires that visitors make an posted generally without change to ‘‘Office of Thrift Supervision’’ from the appointment to inspect comments. You http://www.FDIC.gov/regulations/laws/ agency drop-down menu and click may do so by calling (202) 874–5043. federal/propose.html, including any ‘‘Submit.’’ In the ‘‘Docket ID’’ column, Upon arrival, visitors will be required to personal information provided. select ‘‘OTS–2008–0010’’ to view public present valid government-issued photo OTS: You may submit comments, comments for this rulemaking action. identification and submit to security identified by OTS–2008–0010 by any of • Viewing Comments On-Site: You screening in order to inspect and the following methods: may inspect comments at the Public photocopy comments. • Federal eRulemaking Portal— Reading Room, 1700 G Street, NW., by • Docket: You may also view or ‘‘Regulations.gov’’: Go to http:// appointment. To make an appointment request available background www.regulations.gov, under the ‘‘More call (202) 906–5922, send an e-mail to documents and project summaries using Search Options’’ tab click next to the [email protected], or send a the methods described above. ‘‘Advanced Docket Search’’ option facsimile transmission to (202) 906– Board: You may submit comments, where indicated, select ‘‘Office of Thrift 6518. (Prior notice identifying the identified by Docket No. R–1329, by any Supervision’’ from the agency drop- materials you will be requesting will of the following methods: down menu, then click ‘‘Submit.’’ In the assist us in serving you.) We schedule

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appointments on business days between organization is permitted to net any reporting purposes unless the associated 10 a.m. and 4 p.m. In most cases, associated deferred tax liability against goodwill is written down upon a finding appointments will be available the next some of those assets prior to deduction of impairment, or is otherwise business day following the date we from tier 1 capital. Included among derecognized. receive a request. those assets are certain intangible assets The Agencies have received requests FOR FURTHER INFORMATION CONTACT: arising from a nontaxable business from several banking organizations to OCC: Paul Podgorski, Risk Expert, combination. Such netting generally is permit the amount of goodwill arising Capital Policy (202–874–4755); or Jean not permitted for goodwill and other from a taxable business combination Campbell, Senior Attorney, or Ron intangible assets arising from a taxable that must be deducted from tier 1 Shimabukuro, Special Counsel, business combination. In these cases, capital to be reduced by any associated Legislative and Regulatory Activities the full or gross carrying amount of the deferred tax liability. The Agencies Division (202–874–5090). asset is deducted. believe that this treatment would Board: Barbara Bouchard, Associate Statement of Financial Accounting appropriately reflect a banking Director (202–452–3072 or Standards No. 141, Business organization’s maximum exposure to [email protected]), Mary Combinations (FAS 141), requires that loss if the goodwill becomes impaired or Frances Monroe, Manager (202–452– all business combinations be accounted is derecognized under GAAP. 5231 or [email protected]), David for using the purchase method of Accordingly, the Agencies are Snyder, Supervisory Financial Analyst accounting for financial reporting proposing to amend their respective (202–728–5893 or purposes under generally accepted capital rules to permit a banking 3 [email protected]), Division of accounting principles (GAAP). FAS organization to reduce the amount of Banking Supervision and Regulation; or 141 also requires that the acquiring goodwill it must deduct from tier 1 Mark Van Der Weide, Assistant General entity assign the cost of the acquired capital by the amount of any deferred Counsel (202–452–2263 or entity to each identifiable asset acquired tax liability associated with that [email protected]) or Dinah and liability assumed. The amounts goodwill. However, a banking Knight, Senior Attorney (202–452–3838 assigned are based generally upon the organization that reduces the amount of or [email protected]), Legal fair values of such assets and liabilities goodwill deducted from tier 1 capital by Division. For users of at the acquisition date. If the cost of the the amount of the associated deferred Telecommunications Device for the Deaf acquired entity exceeds the net of the tax liability would not be permitted to net this deferred tax liability against (‘‘TDD’’) only, contact 202–263–4869. amounts so assigned, the acquiring FDIC: Christine M. Bouvier, Senior entity must recognize the excess amount deferred tax assets when determining Policy Analyst (Bank Accounting) (202– as goodwill. regulatory capital limitations on 898–7289), Accounting and Securities Statement of Financial Accounting deferred tax assets. The proposed Disclosure Section, Division of Standards No. 142, Goodwill and Other change would permit a banking Supervision and Consumer Protection; Intangible Assets (FAS 142), prohibits organization to effectively reduce its Nancy Hunt, Senior Policy Analyst the amortization of goodwill for regulatory capital deduction for (202–898–6643), Capital Markets financial reporting purposes under goodwill to an amount equal to the GAAP and requires periodic testing of Branch, Division of Supervision and maximum regulatory capital reduction the carrying amount of goodwill for Consumer Protection; Mark Handzlik, that could occur as a result of the impairment. However, a banking Senior Attorney (202–898–3990), or goodwill becoming completely impaired organization generally amortizes Michael Phillips, Counsel (202–898– or derecognized. This would increase a goodwill for tax purposes. This 3581), Supervision Branch, Legal banking organization’s tier 1 capital, difference in treatment generally results Division. which is used to determine the banking OTS: Christine A. Smith, Project in the recognition of a deferred tax organization’s leverage ratio and risk- Manager, Capital Policy (202–906– liability under GAAP. The deferred tax based capital ratios. liability increases over time and is 5740); Marvin Shaw, Senior Attorney, For example, assume that goodwill in reflected in corresponding reductions in Regulations and Legislation (202–906– the amount of $9,000 arises from a earnings for financial reporting 6639); Patricia M. Hildebrand, Senior taxable business combination. For purposes until the goodwill has been Policy Accountant, Accounting (202– income tax purposes, this goodwill is fully amortized for tax purposes. The 906–7048); or Craig Phillips, Senior amortized over 15 years at a rate of $600 deferred tax liability generally is not Policy Accounting Fellow, Accounting per year ($9,000/15 years). However, the reduced or reversed for financial (202–906–5628). banking organization cannot recognize the $600 annual tax deduction for SUPPLEMENTARY INFORMATION: CFR part 208 (state member banks); 12 CFR part 225 goodwill amortization in current income (bank holding companies); 12 CFR part 325 (state Proposed Capital Treatment for nonmember banks); and 12 CFR part 567 (savings for financial reporting purposes. Goodwill Arising From a Taxable associations). This proposal is focused on the Assuming an income tax rate of 30 Business Combination deduction of goodwill from tier 1 capital. percent, each year the banking 3 Under the Agencies’ existing Under FAS 141, application of the purchase organization would have an income tax method to combinations between mutual reduction of $180 ($600 × 30%) and regulatory capital rules, a banking institutions was deferred, pending the issuance of organization 1 must deduct certain interpretive guidance. A revised statement issued in would recognize this amount as a assets from tier 1 capital.2 A banking December 2007, FAS 141(R), supersedes FAS 141 deferred tax liability. Under GAAP, at for financial reporting years starting after December the end of the first year, the banking 15, 2008. The revisions to FAS 141 incorporated in 1 Unless otherwise indicated, the term ‘‘banking FAS 141(R) do not conflict with this proposal. FAS organization would report a deferred tax organization’’ includes banks, savings associations, 141(R) retains the fundamental requirements in liability of $180. At the end of the 15- and bank holding companies (BHCs). The terms FAS 141 that the acquisition method of accounting year tax amortization period, it would ‘‘bank holding company’’ and ‘‘BHC’’ refer only to (which FAS 141 called the ‘‘purchase method’’) be bank holding companies regulated by the Board. report a cumulative deferred tax liability used for all business combinations and extends × 4 2 See the Agencies’ capital rules for more detail these requirements to combinations between two or of $2,700 ($180 15 years). on what assets are required to be deducted from more mutual institutions. This proposal uses the regulatory capital and how these deductions are term ‘‘purchase method’’ in order to be consistent 4 This example assumes that, throughout the tax calculated. See 12 CFR part 3 (national banks); 12 with the current terminology under GAAP. amortization period, there is no impairment or

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Under the Agencies’ existing make clear whether those assets may be excluded servicing assets from the regulatory capital rules, the full carrying netted, and also does not make clear definition of intangible assets, and to amount of goodwill ($9,000) is deducted whether intangible assets acquired in a add regulatory text to the definition to from tier 1 capital. However, since the taxable purchase business combination include servicing assets as intangible amortization of this asset for income tax may be netted. assets. Second, OTS is proposing a purposes reduces income taxes by The OCC is clarifying the appropriate change to its definition of ‘‘intangible $2,700 over the 15-year period, the treatment of disallowed servicing assets assets’’ in 12 CFR 567.9 that would maximum amount of reduction in tier 1 and purchased credit card relationships reference servicing assets as intangible capital that the banking organization to be as follows: (1) Disallowed assets according to 12 CFR 567.1. Third, could experience in the event of total servicing assets may be deducted net of OTS is proposing a change to conform impairment of the goodwill at the end any associated deferred tax liability, its regulatory text to that of the other of the 15-year period is $6,300 ($9,000 regardless of the method by which the Agencies by adding regulatory text that minus $2,700), not $9,000. Under this bank acquired such assets; and (2) provides for netting a deferred tax proposed rule, the total deduction from servicing assets that are includable in liability specifically related to an tier 1 capital at the end of the first year tier 1 capital and purchased credit card intangible asset (other than disallowed would be $8,820 ($9,000 minus $180) relationships may not be deducted net servicing assets that are already and, at the end of the fifteenth year, the of any associated deferred tax liability, permitted to be deducted on a basis net deduction from tier 1 capital would be regardless of the method by which the of associated deferred tax liabilities, and $6,300. bank acquired such assets. The OCC is purchased credit card relationships that The Agencies request comment on all proposing these changes for the may not be deducted on a basis net of aspects of this proposal. Specifically, following reasons. The term ‘‘purchased associated deferred tax liabilities) the Agencies request comment on the mortgage servicing rights’’ is obsolete arising from a nontaxable business impact that the proposed treatment under GAAP. The OCC is replacing this combination against that intangible could have on a banking organization’s term with the broader term ‘‘servicing asset. Fourth, OTS is proposing other regulatory capital ratios. assets’’ and making other clarifying regulatory rule text changes that will The Agencies are considering for changes to more accurately reflect the conform its regulatory text to that of the purposes of any final rule whether they OCC’s existing interpretation of the other Agencies by adding language to its should extend the treatment proposed current regulatory text. rules addressing the regulatory capital for goodwill to other intangible assets The OCC also is proposing technical limitation on deferred tax assets. acquired in a taxable business changes to its regulatory capital rules. Regulatory Flexibility Act Analysis combination that currently are not The OCC is proposing to amend the deductible from tier 1 capital net of definition of goodwill to conform to The Regulatory Flexibility Act (RFA) associated deferred tax liabilities.5 FAS 141 and FAS 142. These changes generally requires an agency that is Accordingly, the Agencies request are non-substantive and are being made issuing a proposed rule to prepare and comment on whether they should because portions of the existing make available for public comment an permit any additional intangible assets regulatory text became obsolete when initial regulatory flexibility analysis that to be deducted from tier 1 capital net of FAS 141 made application of the describes the impact of the proposed rule on small entities.7 The RFA associated deferred tax liabilities. For purchase method of accounting for provides that an agency is not required such assets, the Agencies request business combinations mandatory. In to prepare and publish an initial information regarding the type of addition, the OCC is proposing regulatory flexibility analysis if the intangible asset and an estimate of the technical amendments to revise cross agency certifies that the proposed rule potential impact on banking references and other miscellaneous will not, if promulgated, have a organizations’ capital ratios from changes. extending this proposal to cover those significant economic impact on a The Board also is proposing technical 8 assets, as well as any other relevant data changes to conform the definition of substantial number of small entities. Under regulations issued by the Small or pertinent information. goodwill in its regulatory capital rules Business Administration,9 a small entity to GAAP, in particular, to the Other Revisions includes a bank holding company, terminology used in FAS 141 and FAS commercial bank, or savings association The OCC is proposing to consolidate 142.6 These changes are non-substantive with assets of $175 million or less the various provisions permitting a bank and are being made because parts of the (collectively, small banking to deduct assets from tier 1 capital on existing regulatory text became obsolete organizations).10 The proposed rule a basis net of any associated deferred tax when FAS 141 made application of the would permit a banking organization to liability together in one section of the purchase method of accounting for compute its deduction from regulatory regulatory text to make it easier to business combinations mandatory. capital of goodwill net of any associated locate. In addition, the current Further, the Board is proposing to deferred tax liability. The Agencies regulatory text’s special treatment of amend Appendix A to 12 CFR part 225 believe that this proposed rule will not intangible assets acquired due to a to remove obsolete text that relates to have a significant economic impact on nontaxable purchase business goodwill recognized by a BHC prior to a substantial number of small entities combination exempts purchased December 31, 1992. because the proposed rule is elective mortgage servicing rights and purchased The OTS is proposing four changes to and, thus, does not require a bank to credit card relationships but does not its capital regulations. First, OTS is proposing a change to amend its 7 See 5 U.S.C. 603(a). derecognition of the goodwill and there is no definition of ‘‘intangible assets’’ in 12 change in the income tax rate. 8 See 5 U.S.C. 605(b). 5 As discussed above, under the Agencies’ CFR 567.1 to delete obsolete text that 9 See 13 CFR 121.201. existing regulatory capital rules, the full amount of 10 As of December 31, 2007, there were any intangible asset acquired in a taxable business 6 The FDIC’s and OTS’s regulatory capital rules approximately 2,785 small bank holding combination generally is deducted from tier 1 do not include a definition of goodwill. Therefore, companies, 932 small national banks, 467 small capital, without netting of any associated deferred this aspect of the proposal would not affect the state member banks, 3,274 small state nonmember tax liability. FDIC’s or OTS’s regulations. banks, and 428 small savings associations.

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compute its deduction from regulatory rulemaking does not have any Department of the Treasury capital of goodwill net of any associated federalism implications for purposes of Office of the Comptroller of the deferred tax liability. Each agency Executive Order 13132. Currency certifies that the proposed rule will not, if promulgated in final form, have a OCC and OTS Unfunded Mandates 12 CFR Chapter I Reform Act of 1995 Determinations significant economic impact on a Authority and Issuance substantial number of small entities. Section 202 of the Unfunded For the reasons set forth in the Paperwork Reduction Act Mandates Reform Act of 1995, Public common preamble, part 3 of chapter I of In accordance with the Paperwork Law 104–4 (UMRA) requires that an title 12 of the Code of Federal Reduction Act of 1995, the Agencies agency prepare a budgetary impact Regulations is proposed to be amended reviewed the proposed rule regarding statement before promulgating a rule as follows: the deduction of goodwill net of that includes a Federal mandate that PART 3—MINIMUM CAPITAL RATIOS; associated deferred tax liability as may result in the expenditure by state, ISSUANCE OF DIRECTIVES required by the Office of Management local, and tribal governments, in the and Budget.11 No collections of aggregate, or by the private sector of 1. The authority citation for part 3 information pursuant to the Paperwork $100 million or more (adjusted annually continues to read as follows: Reduction Act are contained in the for inflation) in any one year. If a Authority: 12 U.S.C. 93a, 161, 1818, proposed rule. However, budgetary impact statement is required, 1828(n), 1828 note, 1831n note, 1835, 3907 implementation of this proposed rule section 205 of the UMRA also requires and 3909. would necessitate clarifications to the an agency to identify and consider a 12 2. In appendix A to part 3, Section 1 Agencies’ quarterly regulatory reports reasonable number of regulatory is amended by: to reflect the proposed change in a alternatives before promulgating a rule. a. Removing, in paragraph (c)(1), the banking organization’s tier 1 capital. The OCC and OTS each have third sentence, the phrase ‘‘section Plain Language determined that its proposed rule will 1(c)(8)’’ and by adding in lieu thereof not result in expenditures by state, Section 722 of the Gramm-Leach- the phrase ‘‘section 1(c)(10)’’; and local, and tribal governments, or by the Bliley Act requires the Agencies to use b. Revising paragraph (c)(17) to read plain language in all proposed and final private sector, of $133 million or more. as follows: rules published after January 1, 2000. In Accordingly, neither OCC nor OTS has prepared a budgetary impact statement Appendix A to Part 3—Risk-Based light of this requirement, the Agencies Capital Guidelines have sought to present the proposed or specifically addressed the regulatory rule in a simple and straightforward alternatives considered. Section 1. Purpose, Applicability of Guidelines, and Definitions. manner. The Agencies invite comment List of Subjects on whether the Agencies could take * * * * * additional steps to make the proposed 12 CFR Part 3 (c) * * * rule easier to understand. (17) Goodwill is an intangible asset that Accounting, Administrative practice represents the excess of the cost of an OCC and OTS Executive Order 12866 and procedure, Banks, Banking, Capital, acquired entity over the net of the amounts Determinations National banks, Reporting and assigned to assets acquired and liabilities assumed. Executive Order 12866 requires recordkeeping requirements, Risk. Federal agencies to prepare a regulatory * * * * * 12 CFR Part 208 impact analysis for agency actions that 3. In appendix A to part 3, Section 2 is amended by: are found to be significant regulatory Accounting, Administrative practice a. Removing, in paragraphs (c) actions. Significant regulatory actions and procedure, Banks, Banking, Capital, include, among other things, introductory text and (c)(1) introductory Reporting and recordkeeping text, the word ‘‘items’’, and by adding rulemakings that have an annual effect requirements, Risk. on the economy of $100 million or more in lieu thereof the word ‘‘assets’’; or adversely affect in a material way the 12 CFR Part 225 b. Removing, in paragraph (c)(1)(iii), economy, a sector of the economy, the phrase ‘‘section 2(c)(3)’’ and by productivity, competition, jobs, the Accounting, Administrative practice adding in lieu thereof the phrase environment, public health or safety, or and procedure, Banks, Banking, Capital, ‘‘sections 2(c)(3) and (2)(c)(6)’’; state, local, or tribal governments or Federal Reserve System, Reporting and c. Removing, in paragraph (c)(1)(iv), communities. The OCC and OTS each recordkeeping requirements, Risk. the phrase ‘‘section 4(a)(3)’’ and by adding in lieu thereof the phrase have determined that its portion of the 12 CFR Part 325 proposed rule is not a significant ‘‘section 4(a)(2)’’; regulatory action. Accounting, Banks, Banking, d. Removing, in footnote 6, the phrase Administrative practice and procedure, ‘‘section 1(c)(14)’’ and by adding in lieu OCC and OTS Executive Order 13132 thereof the phrase ‘‘section 1(c)(18)’’, Determinations Capital, Reporting and recordkeeping requirements, Risk. and removing the phrase ‘‘section The OCC and OTS each determined 4(a)(3)’’ and by adding in lieu thereof that its portion of the proposed 12 CFR Part 567 the phase ‘‘section 4(a)(2)’’; e. Removing paragraph (c)(2)(iv); 11 See 44 U.S.C. 3506; 5 CFR 1320 Appendix A.1. Capital, Reporting and recordkeeping f. Adding a heading to paragraph 12 Consolidated Reports of Condition and Income requirements, Risk, Savings (c)(3)(i); (Call Report) (OMB Nos. 7100–0036, 3064–0052, associations. g. Removing paragraph (c)(3)(iii) and 1557–0081), Thrift Financial Report (TFR) (OMB No. 1550–0023), Consolidated Financial Statements redesignating paragraph (c)(3)(iv) as for Bank Holding Companies (FR Y–9C) (OMB No. paragraph (c)(3)(iii); 7100–0128). h. Removing paragraph (c)(4)(iii);

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i. Redesignating paragraph (c)(6) as 2. In appendix A to part 208, amend II. * * * paragraph (c)(7) and adding a new section II.B. by revising paragraphs 1.a., B. * * * paragraph (c)(6) to read as follows; and 1.e.iii., and 1.f. to read as follows: 1. * * * j. Revising the introductory text of a. Goodwill. Goodwill is an intangible asset Appendix A to Part 208—Capital newly designated paragraph (c)(7) by that represents the excess of the cost of an Adequacy Guidelines for State Member acquired entity over the net of the amounts removing the word ‘‘items’’ and adding Banks: Risk-Based Measure assigned to assets acquired and liabilities in lieu thereof the word ‘‘assets’’. assumed. Goodwill is deducted from the sum The revision and addition are set forth * * * * * of core capital elements in determining tier below. II. * * * 1 capital. Section 2. Components of Capital. B. * * * * * * * * 1. * * * e. * * * * * * * * a. Goodwill. Goodwill is an intangible asset iii. Bank holding companies may elect to (c) * * * that represents the excess of the cost of an (3) * * * (i) Net unrealized gains and acquired entity over the net of the amounts deduct goodwill, disallowed mortgage losses on available-for-sale securities. *** assigned to assets acquired and liabilities servicing assets, disallowed nonmortgage * * * * * assumed. Goodwill is deducted from the sum servicing assets, and disallowed credit- (6) Netting of Deferred Tax Liability. (i) of core capital elements in determining Tier enhancing I/Os (both purchased and Banks may elect to deduct the following 1 capital. retained) on a basis that is net of any assets from Tier 1 capital on a basis that is associated deferred tax liability. Deferred tax * * * * * liabilities netted in this manner cannot also net of any associated deferred tax liability: e. * * * be netted against deferred tax assets when (A) Goodwill; iii. Banks may elect to deduct goodwill, determining the amount of deferred tax assets (B) Intangible assets acquired due to a disallowed mortgage servicing assets, nontaxable purchase business combination, disallowed nonmortgage servicing assets, and that are dependent upon future taxable except banks may not elect to deduct from disallowed credit-enhancing I/Os (both income. Tier 1 capital on a basis that is net of any purchased and retained) on a basis that is net f. Valuation. Bank holding companies must associated deferred tax liability, regardless of of any associated deferred tax liability. review the book value of goodwill and other the method by which they were acquired: Deferred tax liabilities netted in this manner intangible assets at least quarterly and make (1) Purchased credit card relationships; cannot also be netted against deferred tax adjustments to these values as necessary. The and assets when determining the amount of fair value of mortgage servicing assets, (2) Servicing assets that are includable in deferred tax assets that are dependent upon nonmortgage servicing assets, purchased Tier 1 capital; future taxable income. credit card relationships, and credit- (C) Disallowed servicing assets; f. Valuation. Banks must review the book enhancing I/Os also must be determined at (D) Disallowed credit-enhancing interest- value of goodwill and other intangible assets least quarterly. This determination shall only strips; and at least quarterly and make adjustments to include adjustments for any significant (E) Nonfinancial equity investments, as these values as necessary. The fair value of changes in original valuation assumptions, defined in section 1(c)(1) of this appendix A. mortgage servicing assets, nonmortgage including changes in prepayment estimates (ii) Deferred tax liabilities netted in this servicing assets, purchased credit card or account attrition rates. Examiners will manner cannot also be netted against relationships, and credit-enhancing I/Os also review both the book value and the fair value deferred tax assets when determining the must be determined at least quarterly. This assigned to these assets, together with amount of deferred tax assets that are determination shall include adjustments for supporting documentation, during the dependent upon future taxable income as any significant changes in original valuation inspection process. In addition, the Federal calculated under section 2(c)(1)(iii) of this assumptions, including changes in Reserve may require, on a case-by-case basis, appendix A. prepayment estimates or account attrition an independent valuation of a bank holding * * * * * rates. Examiners will review both the book company’s goodwill, other intangible assets, value and the fair value assigned to these or credit-enhancing I/Os. Federal Reserve System assets, together with supporting documentation, during the examination * * * * * 12 CFR Chapter II process. In addition, the Federal Reserve may Federal Deposit Insurance Corporation Authority and Issuance require, on a case-by-case basis, an independent valuation of a bank’s goodwill, 12 CFR Chapter III For the reasons set forth in the other intangible assets, or credit-enhancing common preamble, the Board of I/Os. Authority and Issuance Governors of the Federal Reserve * * * * * For the reasons set forth in the System proposes to amend parts 208 common preamble, part 325 of chapter and 225 of chapter II of title 12 of the PART 225—BANK HOLDING III of title 12 of the Code of Federal Code of Federal Regulations as follows: COMPANIES AND CHANGE IN BANK Regulations is proposed to be amended CONTROL (REGULATION Y) PART 208—MEMBERSHIP OF STATE as follows: BANKING INSTITUTIONS IN THE 3. The authority citation for part 225 PART 325—CAPITAL MAINTENANCE FEDERAL RESERVE SYSTEM continues to read as follows: (REGULATION H) Authority: 12 U.S.C. 1817(j)(13), 1818, 1. The authority citation for part 325 1828(o), 1831i, 1831p–1, 1843(c)(8), 1844(b), continues to read as follows: 1. The authority citation for part 208 1972(1), 3106, 3108, 3310, 3331–3351, 3906, continues to read as follows: 3907, and 3909; 15 U.S.C. 1681s, 1681w, Authority: 12 U.S.C. 1815(a), 1815(b), Authority: 12 U.S.C. 24, 92(a), 248(a), 6801 and 6805. 1816, 1818(a), 1818(b), 1818(c), 1818(t), 248(c), 321–328a, 371d, 461, 481–486, 601, 4. In appendix A to part 225, amend 1819(Tenth), 1828(c), 1828(d), 1828(i), 1828(n), 1828(o), 1831o, 1835, 3907, 3909, 611, 1814, 1816, 1818, 1820(d)(9), 1823(j), section II.B. by revising paragraphs 1.a., 1828(o), 1831, 1831o, 1831p–1, 1831r–1, 4808; Pub. L. 102–233, 105 Stat. 1761, 1789, 1831w, 1831x, 1835(a), 1882, 2901–2907, 1.e.iii, and 1.f. to read as follows: 1790 (12 U.S.C. 1831n note); Pub. L. 102– 3105, 3310, 3331–3351, and 3906–3909; 15 Appendix A to Part 225—Capital 242, 105 Stat. 2236, 2355, as amended by U.S.C. 78b, 781(b), 781(g), 781(i), 78o–4(c)(5), Adequacy Guidelines for Bank Holding Pub. L. 103–325, 108 Stat. 2160, 2233 (12 78q, 78q–1, and 78w, 1681s, 1681w, 6801 Companies: Risk-Based Measure U.S.C. 1828 note); Pub. L. 102–242, 105 Stat. and 6805; 31 U.S.C. 5318; 42 U.S.C. 4012a, 2236, 2386, as amended by Pub. L. 102–550, 4104a, 4104b, 4106, and 4128. * * * * * 106 Stat. 3672, 4089 (12 U.S.C. 1828 note).

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2. Section 325.5 is amended by 2. Section 567.1 is amended by (b) * * * revising paragraph (g)(5) to read as revising the definition for intangible (3) Intangible assets, as defined in follows: assets to read as follows: § 567.1 of this part, other than purchased credit card relationships § 325.5 Miscellaneous. § 567.1 Definitions. described in paragraph (b)(1) of this * * * * * * * * * * section, servicing assets described in (g) * * * Intangible assets. The term intangible paragraph (b)(2) of this section, and core (5) Goodwill and other intangible assets means assets considered to be deposit intangibles described in assets. This paragraph (g)(5) provides intangible assets under generally paragraph (g)(3) of this section, are the capital treatment for intangible accepted accounting principles. These deducted in computing tangible and assets acquired in a nontaxable business assets include, but are not limited to, core capital, subject to paragraph combination, and goodwill acquired in goodwill, core deposit premiums, (e)(3)(ii) of this section. a taxable business combination. purchased credit card relationships, * * * * * favorable leaseholds, and servicing (5) Deferred tax assets may be (i) Intangible assets acquired in assets (mortgage and non-mortgage). included (that is not deducted) in nontaxable purchase business Interest-only strips receivable and other computing core capital subject to the combinations. A deferred tax liability nonsecurity financial instruments are restrictions of paragraph (h) of this that is specifically related to an not intangible assets under this section, and may be included in tangible intangible asset (other than mortgage definition. capital in the same amount. servicing assets, nonmortgage servicing assets, and purchased credit card * * * * * * * * * * relationships) acquired in a nontaxable 3. Section 567.5 is amended by (e) * * * (3) * * * purchase business combination may be adding new paragraph (a)(2)(vii) to read as follows: (i) For purposes of computing the netted against this intangible asset. Only limits and sublimits in paragraphs (e) the net amount of this intangible asset § 567.5 Components of capital. and (h) of this section, core capital is must be deducted from Tier 1 capital. * * * * * computed before the deduction of (ii) Goodwill acquired in a taxable (a) * * * disallowed servicing assets, disallowed purchase business combination. A (2) * * * purchased credit card relationships, deferred tax liability that is specifically (vii) Deferred tax assets that are not disallowed credit-enhancing interest- related to goodwill acquired in a taxable includable in core capital pursuant to only strips (purchased and retained), purchase business combination may be § 567.12 of this part are deducted from and disallowed deferred tax assets. netted against this goodwill. Only the assets and capital in computing core (ii) A savings association may elect to net amount of this goodwill must be capital. deduct the following items on a basis deducted from Tier 1 capital. * * * * * net of deferred tax liabilities: (iii) Treatment of a netted deferred 4. Section 567.9 is amended by (A) Disallowed servicing assets; (B) Goodwill such that only the net tax liability. When a deferred tax revising paragraph (c)(1) to read as amount must be deducted from Tier 1 liability is netted in accordance with follows: paragraph (g)(5)(i) or (ii) of this section, capital; the taxable temporary difference that § 567.9 Tangible capital requirements. (C) Disallowed credit-enhancing gives rise to this deferred tax liability * * * * * interest only strips (both purchased and must be excluded from existing taxable (c) * * * retained); and (D) Other intangible assets arising temporary differences when (1) Intangible assets (as defined in from non-taxable business determining the amount of deferred tax § 567.1) and credit enhancing interest- combinations. A deferred tax liability assets that are dependent upon future only strips not includable in tangible that is specifically related to an taxable income and calculating the capital under § 567.12. intangible asset (other than purchased maximum allowable amount of such * * * * * credit card relationships) arising from a assets. 5. Section 567.12 is amended by: nontaxable business combination may (iv) Valuation. The FDIC in its a. Revising the heading and be netted against this intangible asset. discretion may require independent fair paragraphs (a) and (b)(3); The net amount of the intangible asset value estimates for goodwill and other b. Adding paragraph (b)(5); must be deducted from Tier 1 capital. intangible assets on a case-by-case basis c. Revising paragraph (e)(3); and (iii) Deferred tax liabilities that are where it is deemed appropriate for d. Adding paragraph (h) to read as netted in accordance with paragraph safety and soundness purposes. follows: (e)(3)(ii) of this section cannot also be Office of Thrift Supervision § 567.12 Purchased credit card netted against deferred tax assets when relationships, servicing assets, intangible determining the amount of deferred tax 12 CFR Chapter V assets (other than purchased credit card assets that are dependent upon future For the reasons set forth in the relationships and servicing assets), credit- taxable income. common preamble, part 567 of chapter enhancing interest-only strips, and deferred * * * * * V of title 12 of the Code of Federal tax assets. (h) Treatment of deferred tax assets. Regulations is proposed to be amended (a) Scope. This section prescribes the For purposes of calculating Tier 1 as follows: maximum amount of purchased credit capital under this part (but not for card relationships, serving assets, financial statement purposes) deferred PART 567—CAPITAL intangible assets (other than purchased tax assets are subject to the conditions, credit card relationships and servicing limitations, and restrictions described in 1. The authority citation for part 567 assets), credit-enhancing interest-only this section. continues to read as follows: strips, and deferred tax assets that (1) Deferred tax assets that are Authority: 12 U.S.C. 1462, 1462a, 1463, savings associations may include in dependent upon future taxable income. 1464, 1467a, 1828 (note). calculating tangible and core capital. These assets are:

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(i) Deferred tax assets arising from future taxable income should include SUMMARY: We propose to adopt a new deductible temporary differences that the estimated effect of tax planning airworthiness directive (AD) for the exceed the amount of taxes previously strategies that are expected to be products listed above. This proposed paid that could be recovered through implemented to realize tax AD results from mandatory continuing loss carrybacks if existing temporary carryforwards that will otherwise expire airworthiness information (MCAI) differences (both deductible and taxable during that year. Future taxable income originated by an aviation authority of and regardless of where the related projections for the current fiscal year another country to identify and correct deferred tax effects are reported on the (adjusted for any significant changes an unsafe condition on an aviation balance sheet) fully reverse at the that have occurred or are expected to product. The MCAI describes the unsafe calendar quarter-end date; and occur) may be used when applying the condition as: (ii) Deferred tax assets arising from capital limit at an interim calendar During overhaul on a Dornier 328–100 operating loss and tax credit quarter-end date rather than preparing a landing gear unit, parts of the MLG (main carryforwards. new projection each quarter. landing gear) main body and trailing arm (2) Tier 1 capital limitations. (i) The (4) Unrealized holding gains and bushings have been found corroded. maximum allowable amount of deferred losses on available-for-sale debt Investigation showed that over time, these tax assets that are dependent upon securities. The deferred tax effects of bushings can migrate, creating the risk of future taxable income, net of any any unrealized holding gains and losses corrosion in adjacent areas. Such corrosion, valuation allowance for deferred tax on available-for-sale debt securities may if not detected, could cause damage to the assets, will be limited to the lesser of: MLG, possibly resulting in MLG functional be excluded from the determination of problems or failure. (A) The amount of deferred tax assets the amount of deferred tax assets that that are dependent upon future taxable are dependent upon future taxable * * * * * income that is expected to be realized income and the calculation of the Functional problems or failure of the within one year of the calendar quarter- maximum allowable amount of such MLG could result in the inability of the end date, based on a projected future assets. If these deferred tax effects are MLG to extend or retract. The proposed taxable income for that year; or excluded, this treatment must be AD would require actions that are (B) Ten percent of the amount of Tier followed consistently over time. intended to address the unsafe 1 capital that exists before the deduction condition described in the MCAI. Dated: September 18, 2008. of any disallowed servicing assets, any DATES: We must receive comments on disallowed purchased credit card John C. Dugan, this proposed AD by October 30, 2008. relationships, any disallowed credit- Comptroller of the Currency. enhancing interest-only strips, and any ADDRESSES: You may send comments by By order of the Board of Governors of the any of the following methods: disallowed deferred tax assets. Federal Reserve System, September 23, 2008. • (ii) For purposes of this limitation, all Federal eRulemaking Portal: Go to Jennifer J. Johnson, http://www.regulations.gov. Follow the existing temporary differences should Secretary of the Board. be assumed to fully reverse at the instructions for submitting comments. Dated at Washington, DC, this 18th day of • calendar quarter-end date. The recorded Fax: (202) 493–2251. September 2008. • amount of deferred tax assets that are Mail: U.S. Department of By order of the Board of Directors. dependent upon future taxable income, Transportation, Docket Operations, M– net of any valuation allowance for Federal Deposit Insurance Corporation. 30, West Building Ground Floor, Room deferred tax assets, in excess of this Robert E. Feldman, W12–140, 1200 New Jersey Avenue, SE., limitation will be deducted from assets Executive Secretary. Washington, DC 20590. • and from equity capital for purposes of Dated: September 23, 2008. Hand Delivery: U.S. Department of determining Tier 1 capital under this By the Office of Thrift Supervision. Transportation, Docket Operations, M– part. The amount of deferred tax assets John Reich, 30, West Building Ground Floor, Room that can be realized from taxes paid in Director. W12–40, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 prior carryback years and from the [FR Doc. E8–22741 Filed 9–29–08; 8:45 am] p.m., Monday through Friday, except reversal of existing taxable temporary BILLING CODE 4810–33–P (25%), 6210–01–P (25%), differences generally would not be 6714–01–P (25%), 6720–01–P (25%) Federal holidays. deducted from assets and from equity Examining the AD Docket capital. (iii) Notwithstanding paragraph You may examine the AD docket on DEPARTMENT OF TRANSPORTATION (h)(2)(B)(ii) of this section, the amount the Internet at http:// www.regulations.gov; or in person at the of carryback potential that may be Federal Aviation Administration considered in calculating the amount of Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, deferred tax assets that a savings 14 CFR Part 39 association that is part of a consolidated except Federal holidays. The AD docket group (for tax purposes) may include in [Docket No. FAA–2008–1043; Directorate contains this proposed AD, the Tier 1 capital may not exceed the Identifier 2008–NM–036–AD] regulatory evaluation, any comments amount which the association could received, and other information. The reasonably expect to have refunded by RIN 2120–AA64 street address for the Docket Operations its parent. office (telephone (800) 647–5527) is in (3) Projected future taxable income. Airworthiness Directives; 328 Support the ADDRESSES section. Comments will Projected future taxable income should Services GmbH Dornier Model 328–100 be available in the AD docket shortly not include net operating loss Airplanes after receipt. carryforwards to be used within one AGENCY: Federal Aviation FOR FURTHER INFORMATION CONTACT: Dan year of the most recent calendar quarter- Administration (FAA), DOT. Rodina, Aerospace Engineer, end date or the amount of existing International Branch, ANM–116, FAA, ACTION: Notice of proposed rulemaking temporary differences expected to Transport Airplane Directorate, 1601 (NPRM). reverse within that year. Projected Lind Avenue, SW., Renton, Washington

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98057–3356; telephone (425) 227–2125; November 21, 2007; and Dornier 328 Authority for This Rulemaking fax (425) 227–1149. Temporary Revision (TR) ALD–084, Title 49 of the United States Code SUPPLEMENTARY INFORMATION: dated November 7, 2005, to the Dornier specifies the FAA’s authority to issue 328 Airworthiness Limitations Comments Invited rules on aviation safety. Subtitle I, Document. Messier-Dowty has issued section 106 describes the authority of We invite you to send any written Service Bulletin 800–32–014, Revision the FAA Administrator. ‘‘Subtitle VII: relevant data, views, or arguments about 1, dated July 19, 1999. The actions Aviation Programs,’’ describes in more this proposed AD. Send your comments described in this service information are detail the scope of the Agency’s to an address listed under the intended to correct the unsafe condition authority. ADDRESSES section. Include ‘‘Docket No. identified in the MCAI. We are issuing this rulemaking under FAA–2008–1043; Directorate Identifier FAA’s Determination and Requirements the authority described in ‘‘Subtitle VII, 2008–NM–036–AD’’ at the beginning of of This Proposed AD Part A, Subpart III, Section 44701: your comments. We specifically invite This product has been approved by General requirements.’’ Under that comments on the overall regulatory, section, Congress charges the FAA with economic, environmental, and energy the aviation authority of another country, and is approved for operation promoting safe flight of civil aircraft in aspects of this proposed AD. We will air commerce by prescribing regulations consider all comments received by the in the United States. Pursuant to our bilateral agreement with the State of for practices, methods, and procedures closing date and may amend this the Administrator finds necessary for proposed AD based on those comments. Design Authority, we have been notified of the unsafe condition described in the safety in air commerce. This regulation We will post all comments we is within the scope of that authority receive, without change, to http:// MCAI and service information referenced above. We are proposing this because it addresses an unsafe condition www.regulations.gov, including any that is likely to exist or develop on personal information you provide. We AD because we evaluated all pertinent information and determined an unsafe products identified in this rulemaking will also post a report summarizing each action. substantive verbal contact we receive condition exists and is likely to exist or about this proposed AD. develop on other products of the same Regulatory Findings type design. Discussion We determined that this proposed AD Differences Between This AD and the would not have federalism implications The European Aviation Safety Agency MCAI or Service Information under Executive Order 13132. This (EASA), which is the Technical Agent proposed AD would not have a for the Member States of the European We have reviewed the MCAI and related service information and, in substantial direct effect on the States, on Community, has issued EASA the relationship between the national Airworthiness Directive 2008–0009, general, agree with their substance. But we might have found it necessary to use Government and the States, or on the dated January 11, 2008 (referred to after distribution of power and this as ‘‘the MCAI’’), to correct an unsafe different words from those in the MCAI to ensure the AD is clear for U.S. responsibilities among the various condition for the specified products. levels of government. The MCAI states: operators and is enforceable. In making these changes, we do not intend to differ For the reasons discussed above, I During overhaul on a Dornier 328–100 substantively from the information certify this proposed regulation: 1. Is not a ‘‘significant regulatory landing gear unit, parts of the MLG (main provided in the MCAI and related landing gear) main body and trailing arm action’’ under Executive Order 12866; service information. bushings have been found corroded. 2. Is not a ‘‘significant rule’’ under the We might also have proposed Investigation showed that over time, these DOT Regulatory Policies and Procedures different actions in this AD from those bushings can migrate, creating the risk of (44 FR 11034, February 26, 1979); and in the MCAI in order to follow FAA corrosion in adjacent areas. Such corrosion, 3. Will not have a significant policies. Any such differences are if not detected, could cause damage to the economic impact, positive or negative, MLG, possibly resulting in MLG functional highlighted in a Note within the on a substantial number of small entities problems or failure. proposed AD. Based on these findings, the existing under the criteria of the Regulatory mandatory retrofit limitation (as required by Costs of Compliance Flexibility Act. Airworthiness Limitations Document under Based on the service information, we We prepared a regulatory evaluation Section E ‘‘Mandatory Retrofit Items’’ since estimate that this proposed AD would of the estimated costs to comply with 16 September 1998) for the MLG bushings at affect about 13 products of U.S. registry. this proposed AD and placed it in the 15,000 FC (flight cycles) has been amended AD docket. with ‘‘ * * * or 6 calendar years time-in- We also estimate that it would take service (TIS), whichever occurs first’’. about 28 work-hours per product to List of Subjects in 14 CFR Part 39 comply with the basic requirements of For the reasons described above, this Air transportation, Aircraft, Aviation this proposed AD. The average labor [EASA] Airworthiness Directive requires the safety, Safety. implementation of the revised mandatory rate is $80 per work-hour. Required retrofit limitation and modification of MLG parts would cost about $10,000 per The Proposed Amendment bushings that have exceeded the new limit. product. Where the service information Accordingly, under the authority Functional problems or failure of the lists required parts costs that are delegated to me by the Administrator, MLG could result in the inability of the covered under warranty, we have the FAA proposes to amend 14 CFR part MLG to extend or retract. You may assumed that there will be no charge for 39 as follows: obtain further information by examining these costs. As we do not control the MCAI in the AD docket. warranty coverage for affected parties, PART 39—AIRWORTHINESS some parties may incur costs higher DIRECTIVES Relevant Service Information than estimated here. Based on these 328 Support Services GmbH has figures, we estimate the cost of the 1. The authority citation for part 39 issued Dornier Service Bulletin SB– proposed AD on U.S. operators to be continues to read as follows: 328–32–245, Revision 2, dated $159,120, or $12,240 per product. Authority: 49 U.S.C. 106(g), 40113, 44701.

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§ 39.13 [Amended] (ii) For airplanes on which the bushings Airworthiness Limitations Document; for 2. The FAA amends § 39.13 by adding have been replaced as of the effective date of related information. this AD: Before the MLG exceeds 15,000 Issued in Renton, Washington, on the following new AD: flight cycles or 6 years after replacement of September 20, 2008. 328′ Support Services GmbH (Formerly, the bushings, whichever occurs first. AvCraft Aerospace GmbH, formerly (2) Within 1 month after the effective date Michael Kaszycki, Fairchild Dornier GmbH, formerly of this AD: Revise the Airworthiness Acting Manager, Transport Airplane Dornier Luftfahrt GmbH): Docket No. Limitations (AWL) section of the Instructions Directorate, Aircraft Certification Service. FAA–2008–1043; Directorate Identifier for Continued Airworthiness by [FR Doc. E8–22907 Filed 9–29–08; 8:45 am] incorporating the information in Dornier 328 2008–NM–036–AD. BILLING CODE 4910–13–P Temporary Revision (TR) ALD–084, dated Comments Due Date November 7, 2005, into Section E, (a) We must receive comments by October ‘‘Mandatory Retrofit Items’’ of the Dornier 30, 2008. 328 Airworthiness Limitations Document DEPARTMENT OF TRANSPORTATION (ALD). Affected ADs Federal Aviation Administration Note 1: The actions required by paragraph (b) None. (f)(2) of this AD may be done by inserting a 14 CFR Part 39 Applicability copy of Dornier 328 TR ALD–084 into Section E of the Dornier 328 ALD. (c) This AD applies to 328 Support [Docket No. FAA–2008–1044; Directorate Services GmbH Dornier Model 328–100 (3) After doing the replacement required by Identifier 2008–NM–095–AD] paragraph (f)(1) of this AD, no person may airplanes, all serial numbers, certificated in install, on any airplane, a MLG unit as a RIN 2120–AA64 any category. replacement part, unless it has been modified Subject in accordance with paragraph (f)(1) of this Airworthiness Directives; Saab Model AD. SAAB-Fairchild SF340A (SAAB/ (d) Air Transport Association (ATA) of SF340A) and SAAB 340B Airplanes America Code 32: Landing gear. FAA AD Differences AGENCY: Reason Note 2: This AD differs from the MCAI Federal Aviation Administration (FAA), DOT. (e) The mandatory continuing and/or service information as follows: No airworthiness information (MCAI) states: differences. ACTION: Notice of proposed rulemaking (NPRM). During overhaul on a Dornier 328–100 Other FAA AD Provisions landing gear unit, parts of the MLG (main SUMMARY: We propose to adopt a new landing gear) main body and trailing arm (g) The following provisions also apply to bushings have been found corroded. this AD: airworthiness directive (AD) for the Investigation showed that over time, these (1) Alternative Methods of Compliance products listed above. This proposed bushings can migrate, creating the risk of (AMOCs): The Manager, International AD results from mandatory continuing corrosion in adjacent areas. Such corrosion, Branch, ANM–116, FAA, has the authority to airworthiness information (MCAI) if not detected, could cause damage to the approve AMOCs for this AD, if requested originated by an aviation authority of using the procedures found in 14 CFR 39.19. MLG, possibly resulting in MLG functional another country to identify and correct problems or failure. Send information to ATTN: Dan Rodina, Aerospace Engineer, International Branch, an unsafe condition on an aviation Based on these findings, the existing product. The MCAI describes the unsafe mandatory retrofit limitation (as required by ANM–116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, condition as: Airworthiness Limitations Document under Washington 98057–3356; telephone (425) Section E ‘‘Mandatory Retrofit Items’’ since Several landing gear emergency extension 227–2125; fax (425) 227–1149. Before using 16 September 1998) for the MLG bushings at valves have been found seized * * *. This any approved AMOC on any airplane to 15,000 FC (flight cycles) has been amended condition, if not corrected, could result in which the AMOC applies, notify your with ‘‘* * * or 6 calendar years time-in- malfunctioning of the landing gear release appropriate principal inspector (PI) in the service (TIS), whichever occurs first’’. during an operational emergency. FAA Flight Standards District Office (FSDO), For the reasons described above, this or lacking a PI, your local FSDO. This malfunction could cause failure of [EASA] Airworthiness Directive requires the (2) Airworthy Product: For any implementation of the revised mandatory the landing gear to extend and lock in requirement in this AD to obtain corrective the extended position, which could retrofit limitation and modification of MLG actions from a manufacturer or other source, bushings that have exceeded the new limit. result in a gear up landing and reduced use these actions if they are FAA-approved. controllability of the airplane on the Functional problems or failure of the MLG Corrective actions are considered FAA- could result in the inability of the MLG to approved if they are approved by the State ground. The proposed AD would extend or retract. of Design Authority (or their delegated require actions that are intended to address the unsafe condition described Actions and Compliance agent). You are required to assure the product is airworthy before it is returned to service. in the MCAI. (f) Unless already done, do the following (3) Reporting Requirements: For any DATES: We must receive comments on actions. reporting requirement in this AD, under the this proposed AD by October 30, 2008. (1) Modify the MLG main body and trailing provisions of the Paperwork Reduction Act, arm bushings at the applicable time specified the Office of Management and Budget (OMB) ADDRESSES: You may send comments by in paragraph (f)(1)(i) or (f)(1)(ii) of this AD, has approved the information collection any of the following methods: or within 12 months after the effective date requirements and has assigned OMB Control • Federal eRulemaking Portal: Go to of this AD, whichever occurs later. Do the Number 2120–0056. http://www.regulations.gov. Follow the modification in accordance with the Related Information instructions for submitting comments. instructions of Dornier Service Bulletin SB– • Fax: (202) 493–2251. 328–32–245, Revision 2, dated November 21, (h) Refer to MCAI European Aviation • Mail: U.S. Department of 2007; and Messier-Dowty Service Bulletin Safety Agency Airworthiness Directive 2008– Transportation, Docket Operations, M– 800–32–014, Revision 1, dated July 19, 1999. 0009, dated January 11, 2008; Messier-Dowty (i) For airplanes on which the bushings Service Bulletin 800–32–014, Revision 1, 30, West Building Ground Floor, Room have not been replaced as of the effective dated July 19, 1999; Dornier Service Bulletin W12–140, 1200 New Jersey Avenue, SE., date of this AD: Before the MLG accumulates SB–328–32–245, Revision 2, dated November Washington, DC 20590. 15,000 flight cycles or 6 years, whichever 21, 2007; and Dornier 328 TR ALD–084, • Hand Delivery: U.S. Department of occurs first. dated November 7, 2005, to the Dornier 328 Transportation, Docket Operations, M–

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30, West Building Ground Floor, Room have seized due to lack of internal in the MCAI in order to follow FAA W12–40, 1200 New Jersey Avenue, SE., lubrication. This condition, if not corrected, policies. Any such differences are Washington, DC, between 9 a.m. and 5 could result in malfunctioning of the landing highlighted in a NOTE within the p.m., Monday through Friday, except gear release during an operational emergency. proposed AD. Federal holidays. Because the valve lubrication performance Costs of Compliance Examining the AD Docket is dependant on calendar time since last valve operation, SAAB has revised the check Based on the service information, we You may examine the AD docket on to cycle the emergency release handle 5 times estimate that this proposed AD would the Internet at http:// and amended the interval in MRB section F affect about 218 products of U.S. www.regulations.gov; or in person at the from 5,000 FH [flight hours] to every 2 years. registry. We also estimate that it would Docket Operations office between 9 a.m. For the reasons described above, this take about 4 work-hours per product to Airworthiness Directive (AD) requires a and 5 p.m., Monday through Friday, comply with the basic requirements of except Federal holidays. The AD docket functional check [for discrepancies, (e.g., landing gear does not extend, does not lock this proposed AD. The average labor contains this proposed AD, the in down position)] of the landing gear rate is $80 per work-hour. Based on regulatory evaluation, any comments emergency extension valve at the newly these figures, we estimate the cost of the received, and other information. The established intervals. proposed AD on U.S. operators to be street address for the Docket Operations Malfunction of the landing gear release $69,760, or $320 per product. office (telephone (800) 647–5527) is in could cause failure of the landing gear Authority for This Rulemaking the ADDRESSES section. Comments will to extend and lock in the extended be available in the AD docket shortly position, which could result in a gear up Title 49 of the United States Code after receipt. landing and reduced controllability of specifies the FAA’s authority to issue FOR FURTHER INFORMATION CONTACT: the airplane on the ground. The rules on aviation safety. Subtitle I, Shahram Daneshmandi, Aerospace corrective action for any discrepancy section 106, describes the authority of Engineer, International Branch, ANM– that is found is repair using a method the FAA Administrator. ‘‘Subtitle VII: 116, Transport Airplane Directorate, approved by either the FAA or the Aviation Programs,’’ describes in more FAA, 1601 Lind Avenue, SW., Renton, EASA (or its delegated agent). You may detail the scope of the Agency’s Washington 98057–3356; telephone obtain further information by examining authority. (425) 227–1112; fax (425) 227–1149. the MCAI in the AD docket. We are issuing this rulemaking under SUPPLEMENTARY INFORMATION: the authority described in ‘‘Subtitle VII, Relevant Service Information Part A, Subpart III, Section 44701: Comments Invited SAAB has issued Service Bulletin General requirements.’’ Under that We invite you to send any written 340–32–136, dated January 9, 2008. The section, Congress charges the FAA with relevant data, views, or arguments about actions described in this service promoting safe flight of civil aircraft in this proposed AD. Send your comments information are intended to correct the air commerce by prescribing regulations to an address listed under the unsafe condition identified in the for practices, methods, and procedures ADDRESSES section. Include ‘‘Docket No. MCAI. the Administrator finds necessary for FAA–2008–1044; Directorate Identifier FAA’s Determination and Requirements safety in air commerce. This regulation 2008–NM–095–AD’’ at the beginning of of This Proposed AD is within the scope of that authority your comments. We specifically invite because it addresses an unsafe condition comments on the overall regulatory, This product has been approved by that is likely to exist or develop on economic, environmental, and energy the aviation authority of another products identified in this rulemaking aspects of this proposed AD. We will country, and is approved for operation action. consider all comments received by the in the United States. Pursuant to our closing date and may amend this bilateral agreement with the State of Regulatory Findings proposed AD based on those comments. Design Authority, we have been notified We determined that this proposed AD We will post all comments we of the unsafe condition described in the would not have federalism implications receive, without change, to http:// MCAI and service information under Executive Order 13132. This www.regulations.gov, including any referenced above. We are proposing this proposed AD would not have a personal information you provide. We AD because we evaluated all pertinent substantial direct effect on the States, on will also post a report summarizing each information and determined an unsafe the relationship between the national substantive verbal contact we receive condition exists and is likely to exist or Government and the States, or on the about this proposed AD. develop on other products of the same distribution of power and type design. Discussion responsibilities among the various Differences Between This AD and the levels of government. The European Aviation Safety Agency MCAI or Service Information For the reasons discussed above, I (EASA), which is the Technical Agent certify this proposed regulation: for the Member States of the European We have reviewed the MCAI and 1. Is not a ‘‘significant regulatory Community, has issued EASA related service information and, in action’’ under Executive Order 12866; Airworthiness Directive 2008–0054, general, agree with their substance. But dated March 5, 2008 (referred to after we might have found it necessary to use 2. Is not a ‘‘significant rule’’ under the this as ‘‘the MCAI’’), to correct an unsafe different words from those in the MCAI DOT Regulatory Policies and Procedures condition for the specified products. to ensure the AD is clear for U.S. (44 FR 11034, February 26, 1979); and The MCAI states: operators and is enforceable. In making 3. Will not have a significant these changes, we do not intend to differ economic impact, positive or negative, Several landing gear emergency extension on a substantial number of small entities valves have been found seized when substantively from the information performing checks according to the SAAB provided in the MCAI and related under the criteria of the Regulatory 340 Maintenance Review Board (MRB) service information. Flexibility Act. Report, Section F (Airworthiness Limitation We might also have proposed We prepared a regulatory evaluation Section) task number 323106. The valves different actions in this AD from those of the estimated costs to comply with

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this proposed AD and placed it in the which could result in a gear up landing and Related Information AD docket. reduced controllability of the airplane on the (h) Refer to MCAI EASA Airworthiness ground. The corrective action for any Directive 2008–0054 dated March 5, 2008, List of Subjects in 14 CFR Part 39 discrepancy that is found is repair using a and SAAB Service Bulletin 340–32–136, Air transportation, Aircraft, Aviation method approved by either the FAA or the dated January 9, 2008, for related safety, Safety. European Aviation Safety Agency (EASA) (or information. its delegated agent). The Proposed Amendment Issued in Renton, Washington, on Actions and Compliance September 20, 2008. Accordingly, under the authority (f) Unless already done, do the following Michael Kaszycki, delegated to me by the Administrator, actions. Acting Manager, Transport Airplane the FAA proposes to amend 14 CFR part (1) Within 6 months after the effective date Directorate, Aircraft Certification Service. 39 as follows: of this AD, do a functional check of the [FR Doc. E8–22915 Filed 9–29–08; 8:45 am] landing gear emergency extension valve in PART 39—AIRWORTHINESS accordance with the Accomplishment BILLING CODE 4910–13–P DIRECTIVES Instructions of Saab Service Bulletin 340–32– 136, dated January 9, 2008. Repeat the 1. The authority citation for part 39 functional check thereafter at intervals not to DEPARTMENT OF THE TREASURY continues to read as follows: exceed 24 months. Authority: 49 U.S.C. 106(g), 40113, 44701. (2) If any discrepancy is found during any 31 CFR Part 50 functional check required by paragraph (f)(1) RIN 1505—AB92 § 39.13 [Amended] of this AD, before further flight, repair using a method approved by either the Manager, 2. The FAA amends § 39.13 by adding Terrorism Risk Insurance Program; the following new AD: International Branch, ANM–116, Transport Airplane Directorate, FAA; or the European Cap on Annual Liability Saab Aircraft AB: Docket No. FAA–2008– Aviation Safety Agency (EASA) (or its AGENCY: Departmental Offices, Treasury. 1044; Directorate Identifier 2008–NM– delegated agent). 095–AD. ACTION: Notice of proposed rulemaking. FAA AD Differences Comments Due Date SUMMARY: The Department of the Note: This AD differs from the MCAI and/ (a) We must receive comments by October Treasury (‘‘Treasury’’) is issuing this or service information as follows: Although 30, 2008. the MCAI includes a note that allows the proposed rule as part of its Affected ADs option of the repetitive inspections to be implementation of Title I of the Terrorism Risk Insurance Act of 2002 (b) None. accomplished in accordance with SAAB 340 MRB Report, Section F, Revision 6, task (‘‘TRIA’’ or ‘‘the Act’’), as amended by Applicability number 323106, this AD does not include the Terrorism Risk Insurance Program (c) This AD applies to Saab Model SAAB- that option. That document is not yet Reauthorization Act of 2007 Fairchild SF340A (SAAB/SF340A) and available. (‘‘Reauthorization Act’’). The Act SAAB 340B airplanes, all serial numbers, established a temporary Terrorism Risk Other FAA AD Provisions certificated in any category. Insurance Program (‘‘TRIP’’ or (g) The following provisions also apply to Subject ‘‘Program’’) under which the Federal this AD: Government would share with (d) Air Transport Association (ATA) of (1) Alternative Methods of Compliance America Code 32: Landing Gear. (AMOCs): The Manager, International commercial property and casualty insurers the risk of insured losses from Reason Branch, ANM–116, FAA, has the authority to approve AMOCs for this AD, if requested certified acts of terrorism. The (e) The mandatory continuing using the procedures found in 14 CFR 39.19. Reauthorization Act has now extended airworthiness information (MCAI) states: Send information to ATTN: Shahrahm the Program until December 31, 2014. Several landing gear emergency extension Daneshmandi, Aerospace Engineer, This proposed rule is the latest in a valves have been found seized when International Branch, ANM–116, Transport series of regulations Treasury has issued performing checks according to the SAAB Airplane Directorate, FAA, 1601 Lind to implement the Act. The proposed 340 Maintenance Review Board (MRB) Avenue, SW., Renton, Washington 98057– rule incorporates and implements Report, Section F (Airworthiness Limitation 3356; telephone (425) 227–1112; fax (425) statutory requirements in section 103(e) Section) task number 323106. The valves 227–1149. Before using any approved AMOC have seized due to lack of internal on any airplane to which the AMOC applies, of the Act, as amended by the lubrication. This condition, if not corrected, notify your appropriate principal inspector Reauthorization Act, for capping the could result in malfunctioning of the landing (PI) in the FAA Flight Standards District annual liability for insured losses at gear release during an operational Office (FSDO), or lacking a PI, your local $100 billion. In particular, the proposed emergency. FSDO. rule describes how Treasury intends to Because the valve lubrication performance (2) Airworthy Product: For any determine the pro rata share of insured is dependant on calendar time since last requirement in this AD to obtain corrective losses under the Program when insured valve operation, SAAB has revised the check actions from a manufacturer or other source, losses would otherwise exceed the cap to cycle the emergency release handle 5 times use these actions if they are FAA-approved. and amended the interval in MRB section F on annual liability. The rule builds Corrective actions are considered FAA- upon previous rules issued by Treasury. from 5,000 FH [flight hours] to every 2 years. approved if they are approved by the State For the reasons described above, this of Design Authority (or their delegated DATES: Written comments must be Airworthiness Directive (AD) requires a agent). You are required to assure the product submitted on or before October 30, functional check [for discrepancies, (e.g., is airworthy before it is returned to service. 2008. landing gear does not extend, does not lock (3) Reporting Requirements: For any ADDRESSES: Submit comments in down position)] of the landing gear reporting requirement in this AD, under the emergency extension valve at the newly provisions of the Paperwork Reduction Act, electronically through the Federal established intervals. the Office of Management and Budget (OMB) eRulemaking Portal: http:// Malfunction of the landing gear release has approved the information collection www.regulations.gov, or by mail (if hard could cause failure of the landing gear to requirements and has assigned OMB Control copy, preferably an original and two extend and lock in the extended position, Number 2120–0056. copies) to: Terrorism Risk Insurance

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Program, Public Comment Record, Suite extending the Program through of insured losses in excess of the cap on 2100, Department of the Treasury, 1425 December 31, 2014. annual liability of $100 billion. New York Avenue, NW., Washington, The Reauthorization Act, among other Furthermore, no insurer that has met its DC 20220. Because paper mail in the Program changes, revised the provisions insurer deductible shall be liable for any Washington, DC area may be subject to of the Act with regard to the cap on portion of insured losses in excess of the delay, it is recommended that comments annual liability for insured losses of cap. For these purposes, the Secretary be submitted electronically. All $100 billion. Previously, section determines the pro rata share of insured comments should be captioned with 103(e)(3) stated that Congress would losses to be paid by each insurer ‘‘TRIA Cap on Annual Liability determine the procedures for and the incurring losses under the Program. Proposed Rule Comments.’’ Please source of any payments for insured Section 103(e)(2) further provides that include your name, affiliation, address, losses in excess of the cap. This was no insurer may be required to make any e-mail address, and telephone number deleted. Instead, this section now payment for insured losses in excess of in your comment. Comments will be requires the Secretary of the Treasury to its deductible combined with its share available for public inspection on the notify Congress not later than 15 days of insured losses above its deductible. Federal eRulemaking Portal and by after the date of an act of terrorism as The Reauthorization Act also added a appointment at the TRIP Office. To to whether aggregate insured losses are provision (Section 103(b)(3) of TRIA) make appointments, call (202) 622–6770 estimated to exceed the cap. TRIA, as requiring insurers to make a disclosure (not a toll-free number). amended by the Reauthorization Act, to policyholders of the existence of the FOR FURTHER INFORMATION CONTACT: also requires the Secretary to determine $100 billion cap under subsection (e)(2). Howard Leikin, Deputy Director, the pro rata share of insured losses to The cap on insured losses may be reached as a result of a single act of Terrorism Risk Insurance Program, (202) be paid by each insurer incurring losses terrorism, or as a result of multiple 622–6770 (not a toll-free number). under the Program when insured losses exceed the cap, and to issue regulations smaller acts. Either case would SUPPLEMENTARY INFORMATION: for carrying this out. represent an unprecedented level of I. Background losses and present many difficulties in II. Previous Rulemaking assessment and projection of insured On November 26, 2002, the President To assist insurers, policyholders, and losses. The cap’s impact on the Federal signed into law the Terrorism Risk other interested parties in complying government’s and insurer’s liabilities, Insurance Act of 2002 (Pub. L. 107–297, with immediately applicable based on industry-wide insured losses, 116 Stat. 2322). The Act was effective requirements of the Act, Treasury has involves insurance contract issues not immediately. The Act’s purposes are to issued interim guidance for reference normally encountered in the insurance address market disruptions, ensure the until issuance of superseding regulation. market. Examining different approaches continued widespread availability and Rules establishing general provisions to pro rating payments of insured losses affordability of commercial property implementing the Program, including within the cap, it is apparent that no and casualty insurance for terrorism key definitions, and requirements for alternative eliminates the potential for risk, and allow for a transition period policy disclosures and mandatory inequities in how insured losses are for the private markets to stabilize and availability, can be found in Subparts A, settled, mainly due to the timing of build capacity while preserving state B, and C of 31 CFR Part 50. Treasury’s events and the timing of loss insurance regulation and consumer rules applying provisions of the Act to settlements. protections. State residual market insurance entities In developing a proposed process, Title I of the Act establishes a and State workers’ compensation funds Treasury is guided by its authorities temporary federal program of shared are at Subpart D of 31 CFR Part 50. provided in the Act. Treasury is public and private compensation for Rules setting forth procedures for filing attempting, within these authorities, to insured commercial property and claims for payment of the Federal share reduce the potential for inequitable casualty losses resulting from an act of of compensation for insured losses are treatment of policyholders resulting terrorism. The Act authorizes Treasury at Subpart F of 31 CFR Part 50. Subpart from the timing of insured losses, the to administer and implement the G of 31 CFR Part 50 contains rules on location of insured losses, or the Program, including the issuance of audit and recordkeeping requirements particular insurer of the policyholder, regulations and procedures. The for insurers, while Subpart I of 31 CFR while providing a process that is Program provides a federal backstop for Part 50 contains Treasury’s rules relatively easily understood and that is insured losses from an act of terrorism. implementing the litigation operationally reasonable to execute, Section 103(e) of the Act gives Treasury management provisions of section 107 control, and audit. The proration authority to recoup federal payments of the Act. process must be established on a going made under the Program through forward basis so insureds that have policyholder surcharges. The Act also III. The Proposed Rule already received payments from their contains provisions designed to manage This proposed rule would add a insurers would not have to return any litigation arising from or relating to a Subpart J to part 50, which comprises of those payments. The process must certified act of terrorism. Treasury’s regulations implementing the also be flexible enough to address The Program originally was to expire Act. It also proposes to amend § 50.53 changing circumstances presented by on December 31, 2005; however, on of Subpart F. subsequent events or by the December 22, 2005, the President signed development of new, more accurate into law the Terrorism Risk Insurance A. Overview information regarding insured losses. Extension Act of 2005 (Pub. L. 109–144, Generally, section 103(e)(2), as The proposed rule describes how 119 Stat. 2660), which extended the amended, provides that, Treasury would initially estimate Program through December 31, 2007. On notwithstanding subsection (e)(1) whether the cap will be exceeded, the December 26, 2007, the President signed regarding the Federal share of means by which Treasury would into law the Terrorism Risk Insurance compensation or any other provision of develop and maintain estimates for Program Reauthorization Act of 2007 Federal or State law, the Secretary shall determining the pro rata share of (Pub. L. 110–160, 121 Stat. 1839), not make any payments for any portion insured losses to be paid, the factors

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that would be considered in § 50.94 in the proposed rule. For the would be our intention that no pro determining a pro rata percentage of the purposes of this initial reporting to ration would be established. insured losses that are to be paid in Congress, however, a Treasury data call, The proposed rule includes a order to stay within the cap, and the separate from other industry efforts, definition of ‘‘pro rata loss percentage’’ application of the pro rata percentage in may not be timely enough. (‘‘PRLP’’). This would be the percentage paying insured losses. Treasury has Treasury has also considered the determined by the Secretary to be consulted with the National Association utility of certain computer models to applied against the amount that would of Insurance Commissioners in estimate initial insured losses. (This otherwise be paid by an insurer under developing this rule. Treasury seeks modeling has been developed as an the terms and conditions of an comment on all aspects of the proposed industry tool for analyzing the terrorism insurance policy providing property and rule and welcomes the submission of risk for underwriting purposes.) While casualty insurance under the Program if alternatives to the proposed process for this may be of some value in making there were no cap on annual liability. prorating insured losses when aggregate initial estimates, we have also been An insurer would apply the PRLP to insured losses would exceed the cap on advised that the values for input compute the pro rata share of insured annual liability. parameters necessary for model losses to be paid under an insurance policy. B. Description of the Proposed Rule accuracy for an actual terrorist event are not likely to be as readily available in Treasury has examined the issue of The major provisions of the proposed the immediate aftermath as they are whether different lines of business or rule are as follows: from natural hazard events such as different types of insured losses should have different pro rata loss percentages 1. Notice to Congress (§ 50.91) hurricanes. This seems to limit the utility of this approach for purposes of applied. Given the inherent potential for Section 103(e)(3) of the Act requires inequities arising out of the timing and the report to Congress. the Secretary to provide an initial notice nature of multiple acts of terrorism that to Congress not later than 15 days after Treasury may also look to Federal, are the cause of insured losses, the the date of an act of terrorism, stating state, and local sources of damage difficulties in quickly estimating whether the Secretary estimates that assessments in advance of any disaster aggregate losses, as well as the difficulty aggregate insured losses will exceed response and recovery efforts. These in prioritizing certain insured losses $100 billion. TRIA defines an ‘‘act of will likely also be helpful, but, as over others, Treasury believes a single terrorism,’’ in part, as any act that is discussed above, such overall estimates pro rata loss percentage should be used certified by the Secretary, in may not be refined enough for us to in determining the pro rata share of concurrence with the Secretary of State estimate the more limited insured losses insured losses from all lines of business and the Attorney General of the United of concern to the Program. covered by the Program. States. Treasury intends to meet this 2. Determination of Pro Rata Share The proposed rule provides that if requirement within the designated time (§ 50.92) Treasury estimates that insured losses following the certification of an act of may exceed the cap on annual liability terrorism, although there may be Under the Reauthorization Act, the for a Program Year, then Treasury significant challenges involved in Secretary shall not make any payment would determine an initial PRLP and an obtaining data for such an estimate for any portion of the amount of such effective date for that PRLP. This within the designated time. The first insured losses that exceeds $100 billion; percentage would be applied in challenge could be restrictions on access and no insurer that has met its determining insured loss payments for to the affected areas that would hinder deductible shall be liable for the insured losses incurred during the the ability of anyone to accurately assess payment of any portion of the amount subject Program Year, starting with the losses. Additionally, from the Program’s of such insured losses that exceeds $100 effective date until Treasury determines perspective, since the $100 billion cap billion. As previously noted, the timing a revised PRLP. Considerations in applies only to insured losses, the of events and the timing of resulting loss establishing the PRLP are proposed to distinction between estimation of payments have the potential for be: (1) Estimates of insured losses from insured and uninsured losses will be inequities that may be impossible to insurance industry statistical critical. avoid completely. Treasury is proposing organizations; (2) any data calls issued In determining initial estimates of a rule that ensures fair and equal by Treasury; (3) expected reliability and insured losses, Treasury’s preferred treatment of insurers, policyholders, accuracy of insured loss estimates and means of gathering information would and claimants, to the extent possible likelihood that insured loss estimates be through contacting insurance given the inequities inherent in the cap could increase; (4) estimates of insured industry statistical organizations such as provisions of the Act and the possibility losses and expenses not included in the Property Claims Services of that proration may need to be available statistical reporting; and (5) Insurance Services Office, Inc. To the implemented midway in the settlement such other factors as the Secretary extent that insurers are able to estimate of insured losses arising from a Program considers important. Revisions to the their insured losses early on, aggregate Year. Generally, Treasury’s approach PRLP would be based on the same loss information would become would be to establish any pro ration considerations, as needed. Notices of available through such industry sources. relatively conservatively when it is the initial and any revised PRLP would Supplemented with other information estimated that the cap will be reached, be provided through the Federal regarding insurer deductibles and so that early payments are not Register, or in another manner Treasury expectations for insured losses that inequitably higher than later payments, deems appropriate, based upon the would emerge later, such as liability and so that, barring a subsequent act of circumstances of the act of terrorism losses, this represents, we believe, the terrorism, later refinements to the pro under consideration. best source for an initial report as to ration would allow additional payments It will almost certainly be necessary to whether the cap will be exceeded. to policyholders for prior settled losses. continue to update aggregate insured Treasury is also exercising its own data During a Program Year, until events loss estimates, in light of more call authority, which is further have transpired that lead Treasury to information regarding losses from discussed in the description below for believe that the cap could be reached, it events which have already occurred or

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because of subsequent events. New and legitimately made (or agreed to be paid) scheme. The application of the PRLP to refined information may result in to insureds for insured losses. The determine the pro rata share would be Treasury’s determination of a new impracticality of recovering payments against the estimated or actual PRLP. In developing this proposed rule, already made is generally recognized. unprorated loss amounts by policy Treasury contemplated including a From the standpoint of operational (broken down by medical only, medical schedule for updating estimates of ease and in the interest of equitable portion of indemnity, and indemnity aggregate insured losses. Because of the treatment of all insured losses once it is portion of indemnity), following the unique circumstances of any act of expected that the cap on annual liability way loss information has been required terrorism, we believe that it would be will be reached, Treasury sees merit in to be reported as part of the TRIP better to formulate a plan for updating applying pro rata sharing of insured Certifications of Loss. Despite this this information when we know more losses whether they are within or in calculation of the pro rata share at the about what has actually occurred. excess of an individual insurer’s policy level for purposes of reporting to Treasury needs information on deductible. In closely examining its Treasury, Treasury expects that insurers unprorated insured losses in order to authorities as stipulated in the would pro rate payments made to accurately determine an appropriate Reauthorization Act, however, Treasury individual claimants. initial or subsequent PRLP. It is has concluded that it cannot provide for If an insurer that has not yet made Treasury’s understanding that as pro rata sharing of insured losses in payments in excess of its insurer insured losses develop and are paid such a way that an insurer’s liability deductible estimates it will exceed its under a pro rata share calculation, would be limited when it has not met deductible making payments based on insurer loss reserves generally will its deductible. The proposed rule the application of the PRLP, then that reflect the reduced payments expected addresses this issue. insurer shall apply the PRLP as of the to be made. For this reason, Treasury Proposed § 50.93 directs insurers to effective date of the PRLP. If an insurer anticipates requiring, both for data call apply the PRLP to determine the pro that has not yet made payments in purposes discussed below, and for rata share of each insured loss to be excess of its insurer deductible insurer claim submissions for the paid by the insurer on all insured losses estimates it will not exceed its Federal share of compensation, the where there is not a signed settlement deductible making payments based on provision to Treasury of insured loss as of the effective date established by the application of the PRLP, then that amount information that would reflect Treasury for the PRLP. The same insurer may make payments on the the unprorated amounts of both procedure applies whether this is an same basis as prior to the effective date settlements and losses yet to be paid in initial PRLP or a subsequent PRLP that of the PRLP. This means there is no the future. is superseding the prior determination. requirement to pro-rate losses. In such Treasury is concerned that there Treasury is proposing that the pro rata circumstances, whether to pro-rate as of could be circumstances where we share is determined based on the final the effective date of the PRLP is up to estimate that the cap on annual liability claim settlement amount that would the insurer. If the insurer pro rates and will be exceeded, but there is not yet otherwise be paid. If partial payments does not exceed its deductible, then it adequate knowledge of insured losses have already been made as of the is liable for additional, retroactive loss with which to determine a PRLP. effective date of the PRLP, then the pro payments that in the aggregate bring the Allowing payments for early insured rata share for that loss is the greater of insurer’s total insured loss payments up losses to continue without proration the amount already paid or the amount to an amount equal to the lesser of its appears to be inequitable to those computed by applying the PRLP to the insured losses without proration or its coming in later, for which the pro rata final claim settlement amount. The insurer deductible. If the insurer does share calculation would have to be that proposed rule refers to ‘‘estimated or not pro rate, but does exceed its much more severe. Treasury is actual’’ final claim settlement amounts. deductible, then it must apply the PRLP proposing in this rule that in such a This recognizes that insurers may be to its remaining insured losses once it circumstance it would call a brief hiatus submitting underlying claim makes payments equal to its insurer in insurer loss payments of up to two information in support of a claim for the deductible. Once an insurer exceeds its weeks. During this time Treasury would Federal share of compensation after deductible and submits a claim for the develop a PRLP as quickly as possible. making partial payments, but prior to a Federal share of compensation, During this hiatus, insurers could still final adjustment of the claim. however, Treasury’s review of eligible make payments, but with the Some insured losses, such as those payments associated with the understanding that the PRLP would be associated with workers’ compensation underlying losses and calculations for effective retroactively to the start of the or business interruption, may involve the Federal share would be based on the hiatus. Any insured losses later ongoing regular payments. In these application of the PRLP as if the insurer submitted in support of an insurer’s cases, the proration is still determined had originally been subject to paragraph claim for the Federal share of based on the final claim settlement (b) of this section. compensation would be reviewed for amount that would otherwise be paid. 4. Data Call Authority (§ 50.94) compliance with the regulations In the claims procedures regulations pertaining to the pro rata share and in the forms for insurer submissions Treasury is proposing that it may payments. for the Federal share of compensation issue a data call to insurers for the that Treasury has promulgated, workers’ submission of insured loss information. 3. Application of Pro Rata Share compensation losses are required to be We anticipate requesting summary level (§ 50.93) substantiated at the policy level. That is information on insured losses and Treasury is proposing that the PRLP to say, underlying loss information on insurer deductible information. Such a be applied by insurers prospectively on the bordereaux and reviewed by collection of data may be necessary not individual insured losses that have not Treasury in determining the Federal only for the purposes of the cap on been settled as of the effective date of a share is submitted in aggregate by annual liability, but also with regard to PRLP. The intention is that the process policy/employer rather than individual potential recoupment. Treasury intends, of pro ration will not retroactively claimant/employee. In this proposed to the extent possible, to rely on existing require repayment of any claims already rule, Treasury proposes to continue that industry statistical reporting

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mechanisms in making initial estimates. purposes of Executive Order 12866, The forms to be prescribed by However, in order to estimate whether ‘‘Regulatory Planning and Review,’’ and Treasury for the data call pursuant to the cap on annual liability will be has been reviewed by the Office of the authority in § 50.94 to collect reached and determine an initial or Management and Budget. information to ascertain the aggregate subsequent PRLP, it may be necessary to Regulatory Flexibility Act. Pursuant to amount of insured losses will require have more timely detail regarding the Regulatory Flexibility Act, 5 U.S.C. information readily derived from insurer deductibles and reserves for 601 et seq., it is hereby certified that this existing normal industry internal and insured losses from lines of business not proposed rule will not have a significant external reporting. Treasury may issue normally included in existing industry economic impact on a substantial data calls to insurers to make initial reporting. number of small entities. Under the Act, estimates of aggregate losses where It is Treasury’s intention to proceed Treasury shall not make any payment available industry statistical information with the development of forms for the for any portion of the amount of annual is not specific enough, and to further electronic submission of insurer aggregate insured losses that exceed refine the information needed to responses to a data call, with $100 billion and no insurer that has met determine the PRLP. The number of appropriate opportunity provided for its insurer deductible is liable for the respondents to such a data call is not public review and comment. It has been payment of any portion of the amount expected to exceed 200 insurers. The observed that reporting similar to that of annual aggregate insured losses that data to be obtained in the immediate required on the current TRIP Initial exceeds $100 billion. Further, the Act aftermath of certification of an act of Notice of Loss may be sufficient for requires the Secretary to determine the terrorism would include the insurers’ these purposes. Treasury will review pro rata share of insured losses to be total expected losses and estimated this as part of its forms development paid by each insurer and to issue insurer deductibles. Subsequent data process. The circumstances of a regulations for determining the pro rata calls to refine the information would particular Program Trigger Event will share of insured losses under the include catastrophe code, line of likely have a significant bearing on Program. Accordingly, any economic business, losses paid, allocated loss which insurers should receive the data impact associated with the proposed adjustment expenses paid, case reserves, call and how the data should be rule flows from the Act and not the incurred but not reported reserves as coordinated, perhaps with the NAIC or proposed rule. A regulatory flexibility well as the total expected loss a particular state. Additional data call analysis is thus not required. (unprorated) and insurer deductible guidance will be provided as necessary Paperwork Reduction Act. The data. Treasury estimates that an insurer based on the circumstances of the collection of information contained in will require 5 hours, on average, to particular Program Trigger Event. this proposed rule has been submitted assemble data and respond to the to the Office of Management and Budget 5. Final Amount (§ 50.95) Treasury request. The estimated total (OMB) for review under the burden would therefore be 1,000 hours As previously discussed, Treasury requirements of the Paperwork (200 insurers × 5 hours). At a blended, intends to establish, to the extent Reduction Act, 44 U.S.C. 3507(d). fully loaded hourly rate of $85.00, the possible, pro ration of insured losses Organizations and individuals cost would $85,000. (Note, the data call conservatively so as to not exceed the desiring to submit comments forms and submission would, as legislative cap on annual liability. The concerning the collection of information appropriate, also be utilized to obtain proposed rule includes provision for in the proposed rule should direct them aggregate insured loss data needed for Treasury to determine a final PRLP that to: Office of Management and Budget, making recoupment determinations and would be used for determining the pro Attn: Desk Officer for the Department of notices required by the Act). rata share to be paid on all remaining the Treasury, Office of Information and In the event of imposition of a PRLP, insured losses as well as for being able Regulatory Affairs, Washington, DC it will be necessary to determine insurer to provide additional payments on 20503, or by e-mail to compliance when the Treasury is previously settled losses and still [email protected]. A processing insurer claims for payment remain within the cap. The proposed copy of the comments should also be of the Federal share of compensation. rule also proposes that there may be a sent to Treasury at the addresses This would be accomplished by revision need for supplementary explanation previously specified. Comments on the to the currently approved Treasury form regarding how additional payments are collection of information should be TRIP 02C, revised April 2006 (OMB provided on previously settled losses received by December 1, 2008. 1505–0200, expiration December 31, that would accompany the Certifications Treasury specifically invites 2010). This form, the ‘‘Bordereau’’ or of Loss submitted by insurers for the comments on: (a) Whether the proposed ‘‘Schedule C’’ is submitted in support of Federal share of compensation. The collection of information is necessary the insurer’s certification of loss (see 31 proposed rule also includes a provision, for the proper performance of the CFR 50.53) and provides detailed consistent with the above discussion of mission of Treasury, and whether the information about individual the treatment of pro rata sharing in information will have practical utility; underlying claims. The revised form connection with insurer deductibles, (b) the accuracy of the estimate of the would require the addition of the that at the time of determination of a burden of the collections of information settlement date of an underlying claim, final pro ration, an insurer may still be (see below); (c) ways to enhance the the total unprorated amount of the loss, liable for loss payments that in the quality, utility, and clarity of the and the date of the latest payment on aggregate bring the insurer’s total loss information collection; (d) ways to the claim. These are data that are payments up to an amount equal to the minimize the burden of the information normally in the insurer’s own file and lesser of its insured losses without collection, including through the use of their reporting and recordkeeping are proration or its insurer deductible. automated collection techniques or estimated to not represent any other forms of information technology; measurable additional reporting or IV. Procedural Requirements and (e) estimates of capital or start-up recordkeeping burden. Executive Order 12866, ‘‘Regulatory costs and costs of operation, Executive Order 13132, ‘‘Federalism.’’ Planning and Review’’. This rule is a maintenance, and purchase of services The proposed rule may have federalism significant regulatory action for to maintain the information. implications to the extent it deals with

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the making of payments by insurers to 2. Subpart J is added to read as insurers for insured losses incurred in their policyholders under contracts of follows: the subject Program Year, as specified in insurance, which is ordinarily regulated § 50.93, from the effective date of the under State insurance law. However, Subpart J—Cap on Annual Liability PRLP, as established by Treasury, until TRIA established a temporary Federal Sec. such time as Treasury provides notice program that is national in scope and 50.90 Cap on annual liability. that the PRLP is revised. Treasury will significance. Section 106 of TRIA 50.91 Notice to Congress. determine the PRLP based on the preserves the jurisdiction or regulatory 50.92 Determination of pro rata share. following considerations: authority of State insurance 50.93 Application of pro rata share. (1) Estimates of insured losses from commissioners or similar offices, except 50.94 Data call authority. insurance industry statistical as specifically provided in TRIA. 50.95 Final amount. organizations; (2) Any data calls issued by Treasury Section 103(e)(2) requires Treasury to § 50.90 Cap on annual liability. issue regulations for determining the (see § 50.94); pro rata share of insured losses under Pursuant to Section 103 of the Act, if (3) Expected reliability and accuracy the Program when insured losses exceed the aggregate insured losses exceed of insured loss estimates and likelihood $100 billion. $100,000,000,000 during any Program that insured loss estimates could Treasury consulted with the National Year: increase; Association of Insurance Commissioners (a) The Secretary shall not make any (4) Estimates of insured losses and early in the process of formulating this payment for any portion of the amount expenses not included in available proposed rule. State insurance of such losses that exceeds statistical reporting; commissioners who are members of the $100,000,000,000; (5) Such other factors as the Secretary NAIC Terrorism Insurance Working (b) No insurer that has met its insurer considers important. Group were given an opportunity to deductible shall be liable for the (c) Treasury shall provide notice of submit comments, and a few minor and payment of any portion of the amount the determination of the PRLP through technical comments were received and of such losses that exceeds publication in the Federal Register, or considered by Treasury. The NAIC and $100,000,000,000; and in another manner Treasury deems State insurance commissioners will (c) The Secretary shall determine the appropriate, based upon the have a further opportunity to comment pro rata share of insured losses to be circumstances of the act of terrorism on this proposed rule. paid by each insurer that incurs insured under consideration. (d) As appropriate, Treasury will The provision in the proposed rule losses under the Program. determine any revision to a PRLP based (Sec. 50.92(e)) where Treasury would § 50.91 Notice to Congress. on the same considerations listed in call for a hiatus in payments by insurers Pursuant to Section 103(e)(3) of the paragraph (b) of this section, and will in circumstances where the cap on Act, the Secretary shall provide an provide notice for its application to annual liability may be exceeded, but an initial notice to Congress within 15 days insured loss payments. appropriate PRLP cannot yet be of the certification of an act of terrorism, (e) If Treasury estimates based on an determined, could potentially conflict stating whether the Secretary estimates initial act of terrorism or subsequent act with State insurance laws prescribing that aggregate insured losses will exceed of terrorism within a Program Year that fixed periods for insurers to pay claims. $100,000,000,000 for the Program Year aggregate insured losses may exceed the However, Treasury believes the impact in which the event occurs. Such initial cap on annual liability, but an is limited in the proposed rule because estimate shall be based on insured loss appropriate PRLP cannot yet be the period of the hiatus is brief (up to amounts as compiled by insurance determined, Treasury will provide two weeks), and it would apply shortly industry statistical organizations and notification advising insurers of this after an act of terrorism occurs. Treasury any other information the Secretary in circumstance and calling a hiatus in has concluded that a brief hiatus is his or her discretion considers insurer loss payments for insured losses necessary to carry out the purpose of the appropriate. The Secretary shall also of up to two weeks. In such a statute to establish shares of insured notify Congress if estimated or actual circumstance, Treasury will determine a losses on a pro rata basis by avoiding aggregate insured losses exceed PRLP as quickly as possible. The PRLP, the inequity of allowing early claims to $100,000,000,000 during any Program as later determined, will be effective be paid in full before a PRLP can be Year. retroactively as of the start of the hiatus. determined. Any insured losses submitted in support § 50.92 Determination of pro rata share. List of Subjects in 31 CFR Part 50 of an insurer’s claim for the Federal (a) Pro rata Loss Percentage (PRLP) is share of compensation will be reviewed Terrorism risk insurance. the percentage determined by the for the insurer’s compliance with pro Authority and Issuance Secretary to be applied by an insurer rata payments in accordance with the against the amount that would effective date of the PRLP. For the reasons set forth above, 31 otherwise be paid by the insurer under CFR part 50 is proposed to be amended the terms and conditions of an § 50.93 Application of pro rata share. as follows: insurance policy providing property and An insurer shall apply the PRLP to PART 50—TERRORISM RISK casualty insurance under the Program if determine the pro rata share of each INSURANCE PROGRAM there were no cap on annual liability insured loss to be paid by the insurer on under Section 103(e)(2)(A) of the Act. all insured losses where there is not a 1. The authority citation for part 50 (b) Except as provided in paragraph signed settlement as of the effective date continues to read as follows: (e) of this section, if Treasury estimates established by Treasury. Payments Authority: 5 U.S.C. 301; 31 U.S.C. 321; that aggregate insured losses may based on the application of the PRLP Title I, Pub. L. 107–297, 116 Stat. 2322, as exceed the cap on annual liability for a and determination of the pro rata share amended by Pub. L. 109–144, 119 Stat. 2660 Program Year, then Treasury will satisfy the insurer’s liability for payment and Pub. L. 110–160, 121 Stat. 1839 (15 determine an initial PRLP. The PRLP under the Program. Application of the U.S.C. 6701 note). applies to insured loss payments by PRLP and the determination of the pro

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rata share are the exclusive means for (b) If paragraph (a) of this section number USCG–2008–0440 to the Docket calculating the amount of insured losses applies, Treasury may require, as part of Management Facility at the U.S. for Program purposes. The pro rata the insurer submission for the Federal Department of Transportation. To avoid share is subject to the following: share of compensation for insured duplication, please use only one of the (a) The pro rata share is determined losses, supplementary explanation following methods: based on the estimated or actual final regarding how additional payments will (1) Online: http:// claim settlement amount that would be provided on previously settled www.regulations.gov. otherwise be paid. If partial payments insured losses. (2) Mail: Docket Management Facility have already been made as of the (c) An insurer that has pro rated its (M–30), U.S. Department of effective date of the PRLP, then the pro insured losses, but that has not met its Transportation, West Building Ground rata share for that loss is the greater of insurer deductible, remains liable for Floor, Room W12–140, 1200 New Jersey the amount already paid or the amount loss payments that in the aggregate bring Avenue, SE., Washington, DC 20590– computed by applying the PRLP to the the insurer’s total insured loss payments 0001. estimated or actual final claim up to an amount equal to the lesser of (3) Hand delivery: Room W12–140 on settlement amount. its insured losses without proration or the Ground Floor of the West Building, (b) If an insurer that has not yet made its insurer deductible. 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. payments in excess of its insurer § 50.53 [Amended] deductible estimates that it will exceed and 5 p.m., Monday through Friday, 3. Section 50.53 is amended by its insurer deductible making payments except Federal holidays. The telephone adding paragraph (b)(5) to read as based on the application of the PRLP to number is 202–366–9329. follows: its insured losses, then the insurer shall (4) Fax: 202–493–2251. apply the PRLP as of the effective date * * * * * FOR FURTHER INFORMATION CONTACT: If specified in § 50.92(b). (b) * * * you have questions on this proposed (5) A certification that if Treasury has (c) If an insurer that has not yet made rule, call Ensign Rachael Love of Sector determined a Pro rata Loss Percentage payments in excess of its insurer San Juan, Prevention Operations (PRLP) (see § 50.92), the insurer has deductible estimates that it will not Department at (787) 289–2071. If you complied with applying the PRLP to exceed its insurer deductible making have questions on viewing or submitting insured loss payments, where required. payments based on the application of material to the docket, call Renee V. the PRLP to its insured losses, then the * * * * * Wright, Program Manager, Docket insurer may make payments on the David G. Nason, Operations, telephone 202–366–9826. same basis as prior to the effective date Assistant Secretary (Financial Institutions). SUPPLEMENTARY INFORMATION: of the PRLP. If such insurer thereafter [FR Doc. E8–22940 Filed 9–29–08; 8:45 am] Public Participation and Request for reaches its insurer deductible, then the BILLING CODE 4810–25–P Comments insurer shall apply the PRLP to its remaining insured losses. When such an We encourage you to participate in insurer submits a claim for the Federal this rulemaking by submitting DEPARTMENT OF HOMELAND share of compensation, the amount of comments and related materials. All SECURITY the insurer’s losses will be deemed to be comments received will be posted, the amount it would have paid if it had Coast Guard without change, to http:// applied the PRLP as of the effective www.regulations.gov and will include date, and the Federal share of 33 CFR Part 165 any personal information you have compensation will be calculated on that provided. We have an agreement with amount. However, an insurer may [Docket No. USCG–2008–0440] the Department of Transportation (DOT) request an exception if it can RIN 1625–AA87 to use the Docket Management Facility. demonstrate that its estimate was Please see DOT’s ‘‘Privacy Act’’ invalidated as a result of insured losses Security Zone; Coast Guard Base San paragraph below. from a subsequent act of terrorism. Juan, San Juan Harbor, Puerto Rico Submitting Comments § 50.94 Data call authority. AGENCY: Coast Guard, DHS. If you submit a comment, please For the purpose of determining initial ACTION: Notice of proposed rulemaking. include the docket number for this or recalculated PRLPs Treasury may rulemaking (USCG–2008–0440), SUMMARY: issue a data call to insurers for insured The Coast Guard proposes to indicate the specific section of this loss information. Submission of data in establish a permanent security zone in document to which each comment response to a data call shall be on a form the vicinity of the Coast Guard Base in applies, and give the reason for each promulgated by Treasury. San Juan, Puerto Rico. The security zone comment. We recommend that you is needed for national security reasons include your name and a mailing § 50.95 Final amount. to protect the public and the Coast address, an e-mail address, or a phone (a) Treasury shall determine if, as a Guard base from potential subversive number in the body of your document final pro ration, remaining insured loss acts. The proposed rule would exclude so that we can contact you if we have payments, as well as adjustments to entry into the security zone by all questions regarding your submission. previous insured loss payments, can be vessels and personnel without You may submit your comments and made by insurers based on an adjusted permission of the U.S. Coast Guard material by electronic means, mail, fax, PRLP, and aggregate insured losses still Captain of the Port San Juan. or delivery to the Docket Management remain within the cap on annual DATES: Comments and related material Facility at the address under ADDRESSES; liability. In such a circumstance, must reach the Coast Guard on or before but please submit your comments and Treasury will notify insurers as to the December 1, 2008. material by only one means. If you final PRLP and its application to ADDRESSES: You may submit comments submit them by mail or delivery, submit insured losses. identified by Coast Guard docket them in an unbound format, no larger

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than 81⁄2 by 11 inches, suitable for may lead to subversive acts against the governmental jurisdictions with copying and electronic filing. If you personnel or equipment located at the populations of less than 50,000. submit them by mail and would like to Coast Guard base. The Coast Guard certifies under 5 know that they reached the Facility, This rulemaking attempts to solve the U.S.C. 605(b) that this proposed rule please enclose a stamped, self-addressed problem by prohibiting all persons and would not have a significant economic postcard or envelope. We will consider vessels from entering in, transiting impact on a substantial number of small all comments and material received through or remaining in a security zone entities. This proposed rule would affect during the comment period. We may extending 100 yards seaward from the the following entities, some of which change this proposed rule in view of water’s edge of the Coast Guard La might be small entities: The owners or them. Puntilla facility. operators of vessels intending to transit Viewing Comments and Documents Discussion of Proposed Rule or anchor in the proposed zone. The To view comments, as well as impact would not be economically This proposed rule would require all significant because vessels would be documents mentioned in this preamble people and vessels to remain at least able to transit around the zone. The as being available in the docket, go to 100 yards from the water’s edge of the proposed area does not encompass any http://www.regulations.gov at any time. Coast Guard facility, starting at the portions of any shipping channels and Enter the docket number for this north end of the Coast Guard base Pier would only affect those vessels rulemaking (USCG–2008–0440) in the ALFA, continuing south around the transiting the area adjacent to the Coast Search box, and click ‘‘Go>>.’’ You may base ending at the northwestern side of Guard facility. also visit either the Docket Management La Puntilla. This would prevent vessels Facility in Room W12–140 on the from mooring on the Coast Guard piers If you think that your business, ground floor of the DOT West Building, and unauthorized individuals from organization, or governmental 1200 New Jersey Avenue, SE., being within close proximity to the jurisdiction qualifies as a small entity Washington, DC 20590, between 9 a.m. Coast Guard base. and that this rule would have a and 5 p.m., Monday through Friday, significant economic impact on it, except Federal holidays; or the U.S. Regulatory Analyses please submit a comment (see Coast Guard Sector San Juan, 5 Calle La We developed this proposed rule after ADDRESSES) explaining why you think it Puntilla, San Juan, Puerto Rico, 00901 considering numerous statutes and qualifies and how and to what degree between 7 a.m. and 3:30 p.m., Monday executive orders related to rulemaking. this rule would economically affect it. through Friday, except Federal holidays. Below we summarize our analyses Assistance for Small Entities Privacy Act based on 13 of these statutes or executive orders. Anyone can search the electronic Under section 213(a) of the Small form of all comments received into any Regulatory Planning and Review Business Regulatory Enforcement of our dockets by the name of the Fairness Act of 1996 (Pub. L. 104–121), This proposed rule is not a significant individual submitting the comment (or we want to assist small entities in regulatory action under section 3(f) of signing the comment, if submitted on understanding this proposed rule so that Executive Order 12866, Regulatory behalf of an association, business, labor they can better evaluate its effects on Planning and Review, and does not union, etc.). You may review a Privacy them and participate in the rulemaking. require an assessment of potential costs Act, system of records notice regarding If the proposed rule would affect your and benefits under section 6(a)(3) of that our public dockets in the January 17, small business, organization, or Order. The Office of Management and 2008 issue of the Federal Register (73 governmental jurisdiction and you have Budget has not reviewed it under that FR 3316). questions concerning its provisions or Order. options for compliance, please contact Public Meeting This proposed rule is not a significant Ensign Rachael Love of Sector San Juan, We do not now plan to hold a public regulatory action because the security Prevention Operations Department at meeting. But you may submit a request zone only extends 100 yards from Base (787) 289–2071. The Coast Guard will for one to the Docket Management San Juan and does not impede any not retaliate against small entities that Facility at the address under ADDRESSES regular vessel traffic (i.e., cruise ships, question or complain about this rule or explaining why one would be ferries, small passenger vessels, etc.). any policy or action of the Coast Guard. beneficial. If we determine that one Vessels will be able to transit safely would aid this rulemaking, we will hold around the zone. In the event that a Collection of Information vessel or person feels the need to one at a time and place announced by This proposed rule would call for no a later notice in the Federal Register. temporarily transit through the proposed security zone, the COTP will new collection of information under the Background and Purpose handle the requests on a case-by-case Paperwork Reduction Act of 1995 (44 The Coast Guard docking facilities at basis. U.S.C. 3501–3520). La Puntilla in Old San Juan are home to Small Entities Federalism six Coast Guard cutters and six Coast Guard small boats. Incidents of Under the Regulatory Flexibility Act A rule has implications for federalism unknown vessels mooring up to the (5 U.S.C. 601–612), we have considered under Executive Order 13132, Coast Guard piers has occurred twice in whether this proposed rule would have Federalism, if it has a substantial direct the past year. In addition, suspected a significant economic impact on a effect on State or local governments and surveillance in the form of photography substantial number of small entities. would either preempt State law or has been performed by unknown The term ‘‘small entities’’ comprises impose a substantial direct cost of individuals located in close proximity small businesses, not-for-profit compliance on them. We have analyzed to the Coast Guard base on more than organizations that are independently this proposed rule under that Order and one occasion. These incidents pose a owned and operated and are not have determined that it does not have potential threat to national security and dominant in their fields, and implications for federalism.

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Unfunded Mandates Reform Act of Information and Regulatory Affairs 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. The Unfunded Mandates Reform Act has not designated it as a significant of 1995 (2 U.S.C. 1531–1538) requires energy action. Therefore, it does not 2. Add § 165.776 to read as follows: Federal agencies to assess the effects of require a Statement of Energy Effects under Executive Order 13211. § 165.776 Security Zone; Coast Guard their discretionary regulatory actions. In Base San Juan, San Juan Harbor, Puerto particular, the Act addresses actions Technical Standards Rico. that may result in the expenditure by a (a) Location. The following area is a State, local, or tribal government, in the The National Technology Transfer security zone: All waters from surface to aggregate, or by the private sector of and Advancement Act (NTTAA) (15 $100,000,000 or more in any one year. U.S.C. 272 note) directs agencies to use bottom, encompassed by an imaginary voluntary consensus standards in their line connecting the following points, Though this proposed rule would not ° ′ ″ ° ′ ″ result in such an expenditure, we do regulatory activities unless the agency beginning at 18 27 39 N, 066 06 56 W; provides Congress, through the Office of then east to Point 2 at 18°27′39″ N, discuss the effects of this rule elsewhere ° ′ ″ in this preamble. Management and Budget, with an 066 06 52 W; then South to Point 3 at explanation of why using these 18°27′35″ N, 066°06′52″ W; then Taking of Private Property standards would be inconsistent with Southwest to Point 4 at 18°27′30″ N, This proposed rule would not effect a applicable law or otherwise impractical. 066°06′59″ W; then northeast to Point 5 taking of private property or otherwise Voluntary consensus standards are at 18°27′35″ N, 066°07′07″ W; then have taking implications under technical standards (e.g., specifications north to Point 6 at 18°27′46″ N, Executive Order 12630, Governmental of materials, performance, design, or 066°07′10″ W; then back to shore at the Actions and Interference with operation; test methods; sampling northwest end of the CG facility at Point Constitutionally Protected Property procedures; and related management 7 at 18°27′46″ N, 066°07′07″ W. These Rights. systems practices) that are developed or coordinates are based upon North adopted by voluntary consensus American Datum 1983. Civil Justice Reform standards bodies. (b) Definitions. As used in this This proposed rule meets applicable This proposed rule does not use section— standards in sections 3(a) and 3(b)(2) of technical standards. Therefore, we did Vessel means every description of Executive Order 12988, Civil Justice not consider the use of voluntary watercraft or other artificial contrivance Reform, to minimize litigation, consensus standards. used, or capable of being used, as a eliminate ambiguity, and reduce means of transportation on water, Environment burden. except U.S. Coast Guard or U.S. naval We have analyzed this proposed rule vessels. Protection of Children under Department of Homeland (c) Regulations. (1) No person or We have analyzed this proposed rule Security Management Directive 5100.1 vessel may enter into the security zone under Executive Order 13045, and Commandant Instruction described in paragraph (a) of this Protection of Children from M16475.lD, which guide the Coast section unless authorized by the Captain Environmental Health Risks and Safety Guard in complying with the National of the Port San Juan. Risks. This rule is not an economically Environmental Policy Act of 1969 (2) Vessels seeking to enter the significant rule and would not create an (NEPA) (42 U.S.C. 4321–4370f), and security zone established in this section environmental risk to health or risk to have made a preliminary determination may contact the COTP on VHF channel safety that might disproportionately under the Instruction that this action is 16 or by telephone at (787) 289–2041 to affect children. not likely to have a significant effect on request permission. Indian Tribal Governments the human environment. A preliminary Dated: September 9, 2008. environmental analysis check list E. Pino, This proposed rule does not have supporting this preliminary tribal implications under Executive determination is available in the docket Captain, U.S. Coast Guard, Acting Captain of the Port San Juan. Order 13175, Consultation and where indicated under ADDRESSES. We Coordination with Indian Tribal seek any comments or information that [FR Doc. E8–22890 Filed 9–29–08; 8:45 am] Governments, because it would not have may lead to the discovery of a BILLING CODE 4910–15–P a substantial direct effect on one or significant environmental impact from more Indian tribes, on the relationship this proposed rule. between the Federal Government and ENVIRONMENTAL PROTECTION Indian tribes, or on the distribution of List of Subjects in 33 CFR Part 165 AGENCY power and responsibilities between the Harbors, Marine safety, Navigation Federal Government and Indian tribes. (water), Reporting and recordkeeping 40 CFR Part 271 Energy Effects requirements, Security measures, [EPA–R10–RCRA–2008–0588; FRL–8722–5] Waterways. We have analyzed this proposed rule For the reasons discussed in the Idaho: Proposed Authorization of State under Executive Order 13211, Actions preamble, the Coast Guard proposes to Hazardous Waste Management Concerning Regulations That amend 33 CFR part 165 as follows: Program Revision Significantly Affect Energy Supply, Distribution, or Use. We have PART 165—REGULATED NAVIGATION AGENCY: Environmental Protection determined that it is not a ‘‘significant AREAS AND LIMITED ACCESS AREAS Agency (EPA). energy action’’ under that order because ACTION: Proposed rule. it is not a ‘‘significant regulatory action’’ 1. The authority citation for part 165 under Executive Order 12866 and is not continues to read as follows: SUMMARY: Idaho has applied to EPA for likely to have a significant adverse effect Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. final authorization of certain changes to on the supply, distribution, or use of Chapter 701; 50 U.S.C. 191, 195; 33 CFR its hazardous waste program under the energy. The Administrator of the Office 1.05–1, 6.04–1, 6.04–6, and 160.5; Pub. L. Resource Conservation and Recovery

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Act, as amended (RCRA). EPA has www.regulations.gov index. Although within its borders (except in Indian reviewed Idaho’s application, has listed in the index, some information is country) and for carrying out the aspects preliminarily determined that these not publicly available, e.g., CBI or other of the RCRA program described in its changes satisfy all requirements needed information whose disclosure is revised program application, subject to to qualify for final authorization, and is restricted by statute. Certain other the limitations of the Hazardous and proposing to authorize the State’s material, such as copyrighted material, Solid Waste Amendments of 1984 changes. will be publicly available only in hard (HSWA). New Federal requirements and DATES: Comments on this proposed rule copy. Publicly available docket prohibitions imposed by Federal must be received by October 30, 2008. materials are available either regulations that EPA promulgates under electronically in http:// the authority of HSWA, and which are ADDRESSES: Submit your comments, www.regulations.gov or in hard copy not less stringent than existing identified by Docket ID No. EPA–R10– during normal business hours at the requirements, take effect in authorized RCRA–2008–0588, by one of the U.S. Environmental Protection Agency, States before the States are authorized following methods: • http://www.regulations.gov: Follow Region 10, Office of Air, Waste & for the requirements. Thus, EPA will the on-line instructions for submitting Toxics, Mailstop AWT–122, 1200 Sixth implement those requirements and comments. Avenue, Suite 900, Seattle, Washington prohibitions in Idaho, including issuing • E-mail: [email protected]. 98101, contact: Nina Kocourek, phone permits, until the State is granted • Mail: Nina Kocourek, U.S. number: (206) 553–6502; or the Idaho authorization to do so. Department of Environmental Quality, Environmental Protection Agency, C. What Will Be the Effect if Idaho Is 1410 N. Hilton, Boise, Idaho, contact: Region 10, Office of Air, Waste & Toxics Authorized for These Changes? (AWT–122), 1200 Sixth Avenue, Suite John Brueck, phone number: (208) 373– 900, Seattle, Washington 98101. 0458. If Idaho is authorized for these Instructions: Direct your comments to FOR FURTHER INFORMATION CONTACT: changes, a facility in Idaho subject to Docket ID No. EPA–R10–RCRA–2008– Nina Kocourek, U.S. Environmental RCRA will have to comply with the 0588. EPA’s policy is that all comments Protection Agency, Region 10, Office of authorized State requirements in lieu of received will be included in the public Air, Waste & Toxics (AWT–122), 1200 the corresponding Federal requirements docket without change and may be Sixth Avenue, Suite 900, Seattle, in order to comply with RCRA. made available online at http:// Washington 98101, phone number: Additionally, such persons will have to www.regulations.gov, including any (206) 553–6502, e-mail: comply with any applicable Federal personal information provided, unless [email protected]. requirements, such as, for example, HSWA regulations issued by EPA for the comment includes information SUPPLEMENTARY INFORMATION: claimed to be Confidential Business which the State has not received Information (CBI) or other information A. Why Are Revisions to State authorization, and RCRA requirements whose disclosure is restricted by statute. Programs Necessary? that are not supplanted by authorized Do not submit information that you States which have received final State-issued requirements. Idaho consider to be CBI or otherwise authorization from EPA under RCRA continues to have enforcement protected through http:// section 3006(b), 42 U.S.C. 6926(b), must responsibilities under its State www.regulations.gov, or e-mail. The maintain a hazardous waste program hazardous waste management program http://www.regulations.gov Web site is that is equivalent to, consistent with, for violations of this program, but EPA an ‘‘anonymous access’’ system, which and no less stringent than the Federal retains its authority under RCRA means EPA will not know your identity program. As the Federal program sections 3007, 3008, 3013, and 7003, or contact information unless you changes, States must change their which includes, among others, the provide it in the body of your comment. programs and ask EPA to authorize the authority to: • If you send an e-mail comment directly changes. Changes to State programs may Conduct inspections; require to EPA without going through http:// be necessary when Federal or State monitoring, tests, analyses, or reports; • www.regulations.gov, your e-mail statutory or regulatory authority is Enforce RCRA requirements; address will be automatically captured modified or when certain other changes suspend, terminate, modify or revoke and included as part of the comment occur. Most commonly, States must permits; and that is placed in the public docket and change their programs because of • Take enforcement actions regardless made available on the Internet. If you changes to EPA’s regulations codified in of whether the State has taken its own submit an electronic comment, EPA Title 40 of the Code of Federal actions. recommends that you include your Regulations (CFR) Parts 124, 260 The action to approve these revisions name and other contact information in through 268, 270, 273, and 279. would not impose additional the body of your comment and with any requirements on the regulated disk or CD–ROM you submit. If EPA B. What Decisions Have We Made in community because the regulations for cannot read your comment due to This Proposed Rule? which Idaho will be authorized are technical difficulties and cannot contact EPA has preliminarily determined already effective under State law and you for clarification, EPA may not be that Idaho’s application to revise its are not changed by the act of able to consider your comment. authorized program meets all of the authorization. Electronic files should avoid the use of statutory and regulatory requirements D. What Happens If EPA Receives special characters or any form of established by RCRA. Therefore, we are Comments on This Action? encryption, and be free of any defects or proposing to grant Idaho final viruses. For additional information authorization to operate its hazardous If EPA receives comments on this about EPA’s public docket, visit the EPA waste program with the changes action, we will address those comments Docket Center homepage at http:// described in the authorization in a later final rule. You may not have www.epa.gov/epahome/dockets.htm. application. Idaho will have another opportunity to comment. If you Docket: All documents in the docket responsibility for permitting Treatment, want to comment on this authorization, are listed in the http:// Storage, and Disposal Facilities (TSDFs) you must do so at this time.

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E. What Has Idaho Previously Been June 25, 1999 (64 FR 34180); March 8, is not a ‘‘significant regulatory action’’ Authorized For? 2005 (70 FR 11132); and April 20, 2006 under the terms of Executive Order Idaho initially received final (71 FR 20341), EPA codified at 40 CFR 12866 and is therefore not subject to authorization on March 26, 1990, Part 272, Subpart N previous OMB review. effective April 9, 1990 (55 FR 11015) to authorization actions for the State of 2. Paperwork Reduction Act implement the RCRA hazardous waste Idaho program. EPA is reserving the This proposed action does not impose management program. EPA granted amendment of 40 CFR Part 272, Subpart an information collection burden under authorization for changes to Idaho’s N for codification to a later date. the provisions of the Paperwork authorized program on April 6, 1992, I. How Would Authorizing Idaho for Reduction Act, 44 U.S.C. 3501 et seq., effective June 5, 1992 (57 FR 11580); These Revisions Affect Indian Country because this proposed rule does not June 11, 1992, effective August 10, 1992 (18 U.S.C. 1151) in Idaho? establish or modify any information or (57 FR 24757); April 12, 1995, effective recordkeeping requirements for the June 11, 1995 (60 FR 18549); October Idaho is not authorized to carry out its regulated community and only seeks to 21, 1998, effective January 19, 1999 (63 hazardous waste program in Indian authorize the pre-existing requirements FR 56086); July 1, 2001, effective July 1, country, as defined in 18 U.S.C. 1151. under State law and imposes no 2001 (67 FR 44069); March 10, 2004, Indian country includes: additional requirements beyond those effective March 10, 2004 (69 FR 11322); 1. All lands within the exterior boundaries of Indian reservations imposed by State law. July 22, 2005, effective July 22, 2005 (70 Burden means the total time, effort, or FR 42273); and February 26, 2007, within or abutting the State of Idaho; 2. Any land held in trust by the U.S. financial resources expended by persons effective February 26, 2007 (72 FR for an Indian tribe; and to generate, maintain, retain, or disclose 8283). 3. Any other land, whether on or off or provide information to or for a F. What Changes Are We Proposing? an Indian reservation, that qualifies as Federal agency. This includes the time On June 24, 2008, Idaho submitted a Indian country. needed to review instructions; develop, program revision application seeking Therefore, this action has no effect on acquire, install, and utilize technology authorization for all delegable Federal Indian country. EPA will continue to and systems for the purposes of hazardous waste regulations codified as implement and administer the RCRA collecting, validating, and verifying of July 1, 2007, incorporated by program on these lands. information, processing, and maintaining information, and disclosing reference in IDAPA 58.01.05.(002)–(016) J. Statutory and Executive Order and (018). and providing information; adjust the Reviews existing ways to comply with any G. Who Handles Permits After the This proposed rule seeks to revise the previously applicable instructions and Authorization Takes Effect? State of Idaho’s authorized hazardous requirements; train personnel to be able Idaho will continue to issue permits waste program pursuant to section 3006 to respond to a collection of for all the provisions for which it is of RCRA and imposes no requirements information; search data sources; authorized and administer the permits it other than those currently imposed by complete and review the collection of issues. If EPA issued permits prior to State law. This proposed rule complies information; and transmit or otherwise authorizing Idaho for these revisions, with applicable executive orders and disclose the information. these permits would continue in force statutory provisions as follows: An agency may not conduct or sponsor, and a person is not required to until the effective date of the State’s 1. Executive Order 12866 issuance or denial of a State hazardous respond to, a collection of information waste permit, at which time EPA would Under Executive Order 12866 (58 FR unless it displays a currently valid OMB modify the existing EPA permit to 51735, October 4, 1993), the Agency control number. The OMB control expire at an earlier date, terminate the must determine whether the regulatory numbers for EPA’s regulations in Title existing EPA permit for cause, or allow action is ‘‘significant,’’ and therefore 40 of the CFR are listed in 40 CFR Part the existing EPA permit to otherwise subject to OMB review and the 9. requirements of the Executive Order. expire by its terms, except for those 3. Regulatory Flexibility Act facilities located in Indian Country. EPA The Executive Order defines will not issue new permits or new ‘‘significant regulatory action’’ as one The Regulatory Flexibility Act (RFA), portions of permits for provisions for that is likely to result in a rule that may: generally requires Federal agencies to which Idaho is authorized after the (1) Have an annual effect on the prepare a regulatory flexibility analysis effective date of this authorization. EPA economy of $100 million or more, or of any rule subject to notice and will continue to implement and issue adversely affect in a material way, the comment rulemaking requirements permits for HSWA requirements for economy, a sector of the economy, under the Administrative Procedure Act which Idaho is not yet authorized. productivity, competition, jobs, the or any other statute unless the agency environment, public health or safety, or certifies that the rule will not have a H. What Is Codification and Is EPA State, local, or tribal governments or significant economic impact on a Codifying Idaho’s Hazardous Waste communities; (2) create a serious substantial number of small entities. Program as Authorized in This inconsistency or otherwise interfere Small entities include small businesses, Proposed Rule? with an action taken or planned by small organizations, and small Codification is the process of placing another agency; (3) materially alter the governmental jurisdictions. For the State’s statutes and regulations that budgetary impact of entitlements, purposes of assessing the impacts of comprise the State’s authorized grants, user fees, or loan programs, or today’s proposed rule on small entities, hazardous waste program into the Code the rights and obligations of recipients small entity is defined as: (1) A small of Federal Regulations. This is done by thereof; or (4) raise novel legal or policy business defined by the Small Business referencing the authorized State rules in issues arising out of legal mandates, the Administration’s size regulations at 13 40 CFR Part 272. Through codification President’s priorities, or the principles CFR Part 121.201; (2) a small actions dated December 6, 1990 (55 FR set forth in the Executive Order. EPA governmental jurisdiction that is a 50327); June 11, 1992 (57 FR 24757); has determined that this proposed rule government of a city, county, town,

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school district, or special district with a intergovernmental mandates, and in Executive Order 13175 because EPA population of less than 50,000; and (3) informing, educating, and advising retains its authority over Indian a small organization that is any not-for- small governments on compliance with Country. Thus, Executive Order 13175 profit enterprise which is independently the regulatory requirements. Today’s does not apply to this proposed rule. owned and operated and is not proposed rule contains no Federal EPA specifically solicits additional dominant in its field. EPA has mandates (under the regulatory comment on this proposed rule from determined that this action will not provisions of Title II of the UMRA) for tribal officials. have a significant economic impact on State, local, or tribal governments or the small entities because the proposed rule private sector. It imposes no new 7. Executive Order 13045: Protection of will only have the effect of authorizing enforceable duty on any State, local, or Children From Environmental Health pre-existing requirements under State tribal governments or the private sector. and Safety Risks law and imposes no additional Similarly, EPA has also determined that EPA interprets EO 13045 (62 F.R. requirements beyond those imposed by this proposed rule contains no 19885, April 23, 1997) as applying only State law. After considering the regulatory requirements that might to those regulatory actions that concern economic impacts of today’s proposed significantly or uniquely affect small health or safety risks, such that the rule, I certify that this action will not government entities. Thus, today’s analysis required under section 5–501 of have a significant economic impact on proposed rule is not subject to the the EO has the potential to influence the a substantial number of small entities. requirements of sections 202 and 203 of regulation. This action is not subject to EPA continues to be interested in the the UMRA. EO 13045 because it approves a state potential impacts of the proposed rule program. 5. Executive Order 13132: Federalism on small entities and welcomes 8. Executive Order 13211: Actions That comments on issues related to such Executive Order 13132, entitled Significantly Affect Energy Supply, impacts. ‘‘Federalism’’ (64 FR 43255, August 10, 1999), requires EPA to develop an Distribution, or Use 4. Unfunded Mandates Reform Act accountable process to ensure This proposed rule is not subject to Title II of the Unfunded Mandates ‘‘meaningful and timely input by State Executive Order 13211, ‘‘Actions Reform Act (UMRA) of 1995 (Pub. L. and local officials in the development of Concerning Regulations that 104–4) establishes requirements for regulatory policies that have federalism Significantly Affect Energy Supply, Federal agencies to assess the effects of implications.’’ ‘‘Policies that have Distribution, or Use’’ (66 FR 28355, May their regulatory actions on State, local, federalism implications’’ is defined in 22, 2001) because it is not a ‘‘significant and tribal governments and the private the Executive Order to include regulatory action’’ as defined under sector. Under section 202 of the UMRA, regulations that have ‘‘substantial direct Executive Order 12866. EPA generally must prepare a written effects on the States, on the relationship statement, including a cost-benefit between the national government and 9. National Technology Transfer and analysis, for proposed and final rules the States, or on the distribution of Advancement Act with ‘‘Federal mandates’’ that may power and responsibilities among Section 12(d) of the National result in expenditures to State, local, various levels of government.’’ This Technology Transfer and Advancement and tribal governments, in the aggregate, proposed rule does not have federalism Act of 1995 (‘‘NTTAA’’), Public Law or to the private sector, of $100 million implications. It will not have substantial 104–113, 12(d) (15 U.S.C. 272), directs or more in any one year. Before direct effects on the States, on the EPA to use voluntary consensus promulgating an EPA rule for which a relationship between the national standards in its regulatory activities written statement is needed section 205 government and the States, or on the unless to do so would be inconsistent of the UMRA generally requires EPA to distribution of power and with applicable law or otherwise identify and consider a reasonable responsibilities among various levels of impractical. Voluntary consensus number of regulatory alternatives and government, as specified in Executive standards are technical standards (e.g., adopt the least costly, most cost- Order 13132. This rule proposes to materials specifications, test methods, effective or least burdensome alternative authorize pre-existing State rules. Thus, sampling procedures, and business that achieves the objectives of the rule. Executive Order 13132 does not apply practices) that are developed or adopted The provisions of section 205 do not to this proposed rule. In the spirit of by voluntary consensus bodies. The apply when they are inconsistent with Executive Order 13132, and consistent NTTAA directs EPA to provide applicable law. Moreover, section 205 with EPA policy to promote Congress, through OMB, explanations allows EPA to adopt an alternative other communications between EPA and State when the Agency decides not to use than the least costly, most cost-effective, and local governments, EPA specifically available and applicable voluntary or least burdensome alternative if the solicits comment on this proposed rule consensus standards. This proposed Administrator publishes with the rule from State and local officials. rulemaking does not involve technical an explanation why the alternative was standards. Therefore, EPA is not 6. Executive Order 13175: Consultation not adopted. Before EPA establishes any considering the use of any voluntary and Coordination With Indian Tribal regulatory requirements that may consensus standards. significantly or uniquely affect small Governments governments, including tribal Executive Order 13175, entitled 10. Executive Order 12898: Federal governments, it must have developed ‘‘Consultation and Coordination with Actions To Address Environmental under section 203 of the UMRA a small Indian Tribal Governments’’ (59 FR Justice in Minority Populations and Low government agency plan. The plan must 22951, November 9, 2000), requires EPA Income Populations provide for notifying potentially to develop an accountable process to Executive Order (EO) 12898 (59 FR affected small governments, enabling ensure ‘‘meaningful and timely input by 7629 (Feb. 16, 1994)) establishes federal officials of affected small governments tribal officials in the development of executive policy on environmental to have meaningful and timely input in regulatory policies that have tribal justice. Its main provision directs the development of EPA regulatory implications.’’ This proposed rule does federal agencies, to the greatest extent proposals with significant Federal not have tribal implications, as specified practicable and permitted by law, to

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make environmental justice part of their downstream and upstream locations in buildings built after these elevations are mission by identifying and addressing, the table below. The BFEs and modified made final, and for the contents in these as appropriate, disproportionately high BFEs are a part of the floodplain buildings. and adverse human health or management measures that the Comments on any aspect of the Flood environmental effects of their programs, community is required either to adopt Insurance Study and FIRM, other than policies, and activities on minority or show evidence of having in effect in the proposed BFEs, will be considered. populations and low-income order to qualify or remain qualified for A letter acknowledging receipt of any populations in the United States. EPA participation in the National Flood comments will not be sent. has determined that this proposed rule Insurance Program (NFIP). In addition, Administrative Procedure Act will not have disproportionately high these elevations, once finalized, will be Statement. This matter is not a and adverse human health or used by insurance agents and others to rulemaking governed by the environmental effects on minority or calculate appropriate flood insurance Administrative Procedure Act (APA), 5 low-income populations. This proposed premium rates for new buildings and U.S.C. 553. FEMA publishes flood rule does not affect the level of the contents in those buildings. elevation determinations for notice and protection provided to human health or DATES: Comments are to be submitted comment; however, they are governed the environment because this rule on or before December 29, 2008. by the Flood Disaster Protection Act of proposes to authorize pre-existing State ADDRESSES: The corresponding 1973, 42 U.S.C. 4105, and the National rules which are equivalent to, and no preliminary Flood Insurance Rate Map Flood Insurance Act of 1968, 42 U.S.C. less stringent than existing federal (FIRM) for the proposed BFEs for each 4001 et seq., and do not fall under the requirements. community are available for inspection APA. List of Subjects in 40 CFR Part 271 at the community’s map repository. The National Environmental Policy Act. respective addresses are listed in the This proposed rule is categorically Environmental protection, table below. excluded from the requirements of 44 Administrative practice and procedure, You may submit comments, identified CFR part 10, Environmental Confidential business information, by Docket No. FEMA–B–1009, to Consideration. An environmental Hazardous materials transportation, William R. Blanton, Jr., Chief, impact assessment has not been Hazardous waste, Indians—lands, Engineering Management Branch, prepared. Intergovernmental relations, Penalties, Mitigation Directorate, Federal Regulatory Flexibility Act. As flood Reporting and recordkeeping Emergency Management Agency, 500 C elevation determinations are not within requirements. Street, SW., Washington, DC 20472, the scope of the Regulatory Flexibility Authority: This proposed action is issued (202) 646–3151, or (e-mail) [email protected]. Act, 5 U.S.C. 601–612, a regulatory under the authority of sections 2002(a), 3006 flexibility analysis is not required. and 7004(b) of the Solid Waste Disposal Act, FOR FURTHER INFORMATION CONTACT: as amended, 42 U.S.C. 6912(a), 6926, 6974(b). Executive Order 12866, Regulatory William R. Blanton, Jr., Chief, Planning and Review. This proposed Dated: September 18, 2008. Engineering Management Branch, rule is not a significant regulatory action Elin D. Miller, Mitigation Directorate, Federal under the criteria of section 3(f) of Regional Administrator, Region 10. Emergency Management Agency, 500 C Executive Order 12866, as amended. Street, SW., Washington, DC 20472, [FR Doc. E8–22800 Filed 9–29–08; 8:45 am] Executive Order 13132, Federalism. (202) 646–3151 or (e-mail) BILLING CODE 6560–50–P This proposed rule involves no policies [email protected]. that have federalism implications under SUPPLEMENTARY INFORMATION: The Executive Order 13132. DEPARTMENT OF HOMELAND Federal Emergency Management Agency Executive Order 12988, Civil Justice SECURITY (FEMA) proposes to make Reform. This proposed rule meets the determinations of BFEs and modified applicable standards of Executive Order Federal Emergency Management BFEs for each community listed below, 12988. Agency in accordance with section 110 of the Flood Disaster Protection Act of 1973, List of Subjects in 44 CFR Part 67 44 CFR Part 67 42 U.S.C. 4104, and 44 CFR 67.4(a). Administrative practice and These proposed BFEs and modified procedure, Flood insurance, Reporting [Docket No. FEMA–B–1009] BFEs, together with the floodplain and recordkeeping requirements. management criteria required by 44 CFR Proposed Flood Elevation Accordingly, 44 CFR part 67 is Determinations 60.3, are the minimum that are required. They should not be construed to mean proposed to be amended as follows: AGENCY: Federal Emergency that the community must change any PART 67—[AMENDED] Management Agency, DHS. existing ordinances that are more ACTION: Proposed rule. stringent in their floodplain 1. The authority citation for part 67 management requirements. The continues to read as follows: SUMMARY: Comments are requested on community may at any time enact Authority: 42 U.S.C. 4001 et seq.; the proposed Base (1 percent annual- stricter requirements of its own, or Reorganization Plan No. 3 of 1978, 3 CFR, chance) Flood Elevations (BFEs) and pursuant to policies established by other 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, proposed BFE modifications for the Federal, State, or regional entities. 3 CFR, 1979 Comp., p. 376. communities listed in the table below. These proposed elevations are used to The purpose of this notice is to seek meet the floodplain management § 67.4 [Amended] general information and comment requirements of the NFIP and are also 2. The tables published under the regarding the proposed regulatory flood used to calculate the appropriate flood authority of § 67.4 are proposed to be elevations for the reach described by the insurance premium rates for new amended as follows:

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above State City/town/county Source of flooding Location** ground Existing Modified

Unincorporated Areas of Lauderdale County, Alabama

Alabama ...... Unincorporated Areas Shoal Creek ...... BFE 520 is at a point of 1,435 feet up- None +520 of Lauderdale stream of the confluence of Shoal County. Creek and Indiancamp Creek. BFE 558 is at a point of 27,805 feet up- None +558 stream of the confluence of Shoal Creek and Butler Creek. Alabama ...... Unincorporated Areas Tennessee River BFE 432 is at a point of 5,270 feet up- +431 +432 of Lauderdale (Navigation Chan- stream of the intersection of the Ten- County. nel). nessee River and O’Neal Bridge. BFE 435 is at a point of 263 feet down- +431 +435 stream of Wilson Dam.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Unincorporated Areas of Lauderdale County Maps are available for inspection at 5100 Hwy 157 N, Florence, AL 35633.

* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above Flooding source(s) Location of referenced elevation** ground Communities affected Effective Modified

Ben Hill County, Georgia, and Incorporated Areas

Turkey Creek ...... Just upstream of Industrial Drive ...... None +315 Unincorporated Areas of Ben Hill County. Approximately 270 feet downstream of Cemetery None +319 Road. At Cemetery Road ...... None +319 Approximately 1,520 feet downstream of Monitor None +327 Drive. Approximately 760 feet upstream of Sultana Drive ..... None +341 Approximately 1,150 feet upstream of Rochelle Road None +344 Turkey Creek Tributary No. 1 Approximately 950 feet downstream of W. Roanoke None +328 Unincorporated Areas of Drive. Ben Hill County. Approximately 480 feet downstream of W. Roanoke None +329 Drive. Willacoochee River ...... Approximately 1,880 feet downstream of Irwinville None +324 Unincorporated Areas of Highway. Ben Hill County. Approximately 1,780 feet downstream of Irwinville None +324 Highway. Approximately 1,280 feet downstream of Irwinville None +325 Highway. Approximately 480 feet downstream of Irwinville High- None +326 way.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Unincorporated Areas of Ben Hill County Maps are available for inspection at County Commissioners Office, 402–A East Pine Street, Fitzgerald, GA 31750.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above Flooding source(s) Location of referenced elevation** ground Communities affected Effective Modified

Halifax County, Virginia, and Incorporated Areas

Reedy Creek ...... Approximately 1,400 feet downstream of Ash Avenue None +331 Unincorporated Areas of Halifax County. At confluence with Dan River ...... None +331 Rocky Branch ...... At confluence with Reedy Creek ...... None +331 Unincorporated Areas of Halifax County. Approximately 0.4 mile upstream of Eastover Road ... None +346

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Unincorporated Areas of Halifax County Maps are available for inspection at Halifax County GIS Department, 134 South Main, Halifax, VA 24558.

Spokane County, Washington, and Incorporated Areas

Argonne Creek ...... Approximately 1,300 feet downstream of N Maringo None +1922 Unincorporated Areas of Drive. Spokane County. Approximately 600 feet upstream of N Boeing Road .. None +1987 Forker Draw ...... Approximately at N Progress Road ...... None +2065 Unincorporated Areas of Spokane County, City of Spokane Valley. Approximately 70 feet downstream of E Bigelow None +2336 Gulch Road.

* National Geodetic Vertical Datum. + North American Vertical Datum. #Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Spokane Valley Maps are available for inspection at 11707 E. Sprague Ave., Suite 106, Spokane Valley, WA 99206. Unincorporated Areas of Spokane County Maps are available for inspection at 808 W. Spokane Falls Blvd., Spokane, WA 99201.

(Catalog of Federal Domestic Assistance No. DEPARTMENT OF TRANSPORTATION SUMMARY: This notice of proposed 97.022, ‘‘Flood Insurance.’’) rulemaking (NPRM) provides interested Dated: September 19, 2008. Federal Transit Administration parties with the opportunity to Michael K. Buckley, comment on the Federal Transit 49 CFR Part 665 Administration’s (FTA’s) proposed Acting Assistant Administrator, Mitigation changes to its Bus Testing Regulation. Directorate, Department of Homeland [Docket No. FTA–2007–0011] Security, Federal Emergency Management The NPRM incorporates tests for brake Agency. performance and emissions into FTA’s RIN 2132–AA95 [FR Doc. E8–22981 Filed 9–29–08; 8:45 am] Bus Testing Program to comply with the Safe, Accountable, Flexible, Equitable BILLING CODE 9110–12–P Bus Testing; Phase-In of Brake Transportation Efficiency Act: a Legacy Performance and Emissions Testing, for Users (SAFETEA–LU). To improve and Program Updates the FTA Bus Testing Program, FTA is AGENCY: Federal Transit Administration also proposing several updates that will (FTA), DOT. enhance the Program’s value and respond to changes in the transit bus ACTION: Notice of proposed rulemaking industry. FTA seeks comments on the (NPRM). proposals in this notice.

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DATES: Comments on this proposed rule Background docket (see ADDRESSES). The test must be received on or before December Section 317 of the Surface procedures, costs, and durations will be 1, 2008. Transportation and Uniform Relocation reviewed after the Bus Testing Center ADDRESSES: You may submit comments Assistance Act of 1987 (STURAA) has gained experience in conducting (identified by the agency name and DOT provided that no funds appropriated or these tests, and the procedures and the Docket ID Number FTA–2007–0011) by made available under the Urban Mass time and fee schedule may be revised in any of the following methods: Transportation Act of 1964, as amended, the future if necessary. It is possible that • Federal eRulemaking Portal: Go to were to be obligated or expended for the different cost tiers might be established www.regulations.gov and follow the acquisition of a new model bus after if the need becomes apparent as a result of these reviews. For example, battery- online instructions for submitting September 30, 1989, unless a bus of dominant (i.e., ‘‘plug-in’’) hybrid- comments. such model had been tested at a facility • electric buses may need to perform Mail: Docket Management Facility: to be established in Altoona, additional runs of the Emissions test in U.S. Department of Transportation, 1200 Pennsylvania. The intent of the testing order to assess the varying effects on New Jersey Avenue, SE., West Building was to provide reliable performance emissions of full and depleted battery Ground Floor, Room W12–140, information to transit authorities that Washington, DC 20590–0001. states of charge. • could be used in their purchase or lease Hand Delivery or Courier: West decisions. Section 6021 of the Brake Performance Test Procedure Building Ground Floor, Room W12–140, Intermodal Surface Transportation 1200 New Jersey Avenue, SE., between The full proposed draft Brake Testing Efficiency Act of 1991 (ISTEA) amended Procedure is available for review in the 9 a.m. and 5 p.m. ET, Monday through section 317 of STURAA to add tests for Friday, except Federal holidays. docket (see ADDRESSES). In summary, • brake performance and emissions. the operator of the Bus Testing Center Fax: 202–493–2251. Section 3020 of SAFETEA–LU did not See SUPPLEMENTARY INFORMATION will install equipment both on the test change these requirements, bus and at the facilities to support the section for more information on incorporating them at 49 U.S.C. 5318. submitting comments. brake performance test. Prior to the start SAFETEA–LU also amended subsection of a brake performance test, the brake FOR FURTHER INFORMATION CONTACT: For 5318(a) to state, ‘‘The Secretary of system’s functionality will be evaluated. technical information, Marcel Belanger, Transportation shall maintain one The evaluation will ensure that the Bus Testing Program Manager, Office of facility for testing a new bus model...’’ brakes are properly adjusted, burnished, Research, Demonstration, and when this section had previously read and the anti-lock brake system is Innovation (TRI), (202) 366–0725, ‘‘establish one facility.’’ functioning properly. The proposed test [email protected]. For legal The Bus Testing Center is operated by procedure specifies that the test bus will information, Richard Wong, Office of the Pennsylvania Transportation be subjected to a series of brake stops the Chief Counsel (TCC), (202) 366– Institute (PTI) of The Pennsylvania State from 20, 30, 40, and 45 mph on a high- 0675, [email protected]. University. The Bus Testing Center friction surface; from 20 mph on a low- SUPPLEMENTARY INFORMATION: currently performs seven categories of friction surface; and up to 45 mph on a Instructions for submitting comments: tests that were required by STURAA split-coefficient surface. The parking You must include the agency name and are based in part on tests described brake will be evaluated facing uphill (Federal Transit Administration) and in the UMTA (Urban Mass and downhill on a ramp with a 20 Docket number (FTA–2007–0011) for Transportation Administration—FTA’s percent grade. FTA also seeks comments this notice at the beginning of your predecessor) report, ‘‘First Article on whether, and, if so, how, the comments. You should submit two Transit Bus Test Plan,’’ which is Maintainability and Noise tests should copies of your comments if you submit mentioned in the legislative history of be modified to capture useful data them by mail or courier. If you wish to Section 317. These tests, when related to the brake system and whether receive confirmation that FTA received appropriate, leverage Society of any such changes should be done your comments, you must include a Automotive Engineers (SAE) test within the regulation itself or in non- self-addressed stamped postcard. Note procedures and other procedures regulatory policies and procedures. that all comments received will be accepted by the transit industry. The Although it could logically be included posted without change to seven current test categories are under the Safety test category, FTA www.regulations.gov including any Maintainability, Reliability, Safety, proposes to incorporate the brake personal information provided and will Performance, Structural Integrity, Fuel performance test within the existing be available to internet users. You may Economy, and Noise. Performance test category, as specified review DOT’s complete Privacy Act The primary purpose of this NPRM is by SAFETEA–LU. The proposed test Statement in the Federal Register to seek comments on FTA’s proposal to procedure specifies that all brake published on April 11, 2000 (65 FR incorporate brake performance and performance tests will be performed 19477) or you may visit http:// emissions tests into FTA’s Bus Testing with the bus loaded to gross vehicle DocketsInfo.dot.gov. Regulation. FTA is also using this weight. Docket: For internet access to the opportunity to seek comments on ways docket to read background documents to update the regulation to improve the Emissions Test Procedure and comments received, go to functioning of the program, enhance its The proposed draft Emissions Testing www.regulations.gov. Background value, and clarify any ambiguities in the Procedure is available for review in the documents and comments received may existing regulation. docket (see ADDRESSES). The detailed also be viewed at the U.S. Department emissions testing procedure has not of Transportation, 1200 New Jersey Ave Statutory Changes been finalized, pending setup of the SE., Docket Operations, M–30, West FTA seeks comments on the proposed laboratory facility. However, the Building Ground Floor, Room W12–140, testing procedures, estimated testing proposed draft Emissions Testing Washington, DC 20590, between 9 a.m. fees, and estimated test durations for Procedure is based on 40 CFR Part 86— and 5 p.m., Monday through Friday, brake performance and emissions ‘‘Emissions Regulations for New Otto- except Federal holidays. testing, which can be reviewed in the Cycle and Diesel Heavy-Duty Engines;

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Gaseous and Particulate Exhaust Test emissions testing. Bus Testing contracts With regard to the brake performance Procedures’’ and 40 CFR Part 1065— signed before the effective date of the test, FTA seeks comments on the ‘‘Engine Testing Procedures,’’ as well as rule will not need to include brake following proposed list of examples of the Society of Automotive Engineers performance or emissions testing. ‘‘major changes’’ that would require (SAE) Recommended Practice SAE Buses whose full or partial testing previously-tested buses to undergo the J2711. The Emissions test will be contracts are signed on or after the brake performance test: conducted at the Bus Testing Facility effective date of this regulation will be Examples of a major change in the using an emissions testing laboratory subject to brake performance and brake system may include, but are not equipped with a chassis dynamometer emissions testing (in addition to the limited to: capable of both absorbing and applying other testing requirements). That is, full 1. Change in service brake technology, power. The emissions of those exhaust testing will include the brake e.g., changing from drum brakes to disc constituents regulated by the United performance and Emissions tests. Partial brakes, or from friction brakes to States Environmental Protection Agency tests triggered by major changes in any electromagnetic brakes; (EPA) for transit buses, plus carbon part of the bus will include one or both 2. Change in brake control technology, dioxide (CO2) and methane (CH4), will of these tests if FTA would reasonably e.g., changing the primary control be measured as the bus is operated over expect to obtain significantly different circuit from pneumatic control to industry-standard driving cycles test data. In cases where brake electronic or hydraulic control; specified in the test procedure. FTA performance or emissions data have 3. Changes to the shoe lining, brake proposes that mileage accumulated by a never been obtained at the Bus Testing pad, drum, and/or rotor material(s) that bus while operating on the Center (initially, in all cases), a change impact the stopping performance of the dynamometer during emissions testing in data is clearly expected and these bus; will be counted toward the ‘‘other’’ tests will be required for buses 4. Changes to the brake air line miles that must be accumulated during undergoing partial testing, even if major plumbing that impact application durability testing. Under the proposed changes have not been made to the timing; test procedure, the dynamometer would brake or emissions control systems. In 5. The addition or major modification be set to simulate curb weight plus one- addition, upon the effective date of the of advanced control algorithms that half of the full seated load for the regulation, major changes made to the utilize the service brakes, e.g., rollover particular bus under test, in order to be braking system or to the engine, fuel, or and yaw stability programs, collision consistent with the above-cited industry emissions control systems of a warning systems, or advanced cruise standard emissions measurement previously tested bus model will also control systems; and/or 6. Adding, deleting, or making major protocols and to facilitate direct trigger partial testing. Partial testing changes to a regenerative braking comparisons with emissions triggered by major changes to the brake system. measurements collected outside the Bus or emissions control systems could also With regard to the Emissions test, Testing Program. FTA also seeks include other tests if FTA would FTA seeks comments on the following comments on the merits of performing reasonably expect to obtain significantly proposed list of examples of ‘‘major the emissions tests with the chassis different data from including them. dynamometer set to simulate gross changes’’ that would require previously- vehicle weight, which would generally FTA also seeks comments on whether tested buses to undergo the Emissions be expected to represent the ‘‘worst the Emissions test should apply to all test: case’’ for emissions, seated load weight, vehicles subject to FTA’s Bus Testing Examples of a major change in the which may result in emissions Regulation or whether any classes of engine, fuel system, or emissions measurements closer to a typical case buses should be exempted. FTA also control system may include, but are not (and which would be consistent with seeks comments on whether its limited to: the Performance and Fuel Economy emissions testing program should begin 1. A change to a different engine tests, which are currently performed at on the effective date of this rule for all model; seated load weight), or a different bus types subject to testing or whether 2. A major change in calibration of the weight. FTA also seeks comments on the Emissions test requirement should engine, transmission, or hybrid system; whether, and if so, how, the be gradually phased in for various 3. A change to a different type of fuel; Maintainability test should be modified classes of bus (e.g., small or large buses), and/or to capture useful data related to the similar to the phase-in process used in 4. A major change in the engine-out emissions control system and whether the initial start-up of FTA’s Bus Testing emissions or emissions control system, any such changes should be made Program. such as addition, deletion, or substantial within the regulation itself or in non- Partial Testing modification of in-cylinder combustion regulatory policies and procedures. FTA control, exhaust gas recirculation, or proposes to add the Emissions test as a Partial testing provisions will aftertreatment devices. separate, eighth, test category. continue to serve as a means to reduce the cost and time required for testing Reporting Procedures Applicability and Phase-In bus models that have previously Data from the brake performance test FTA proposes that the date on which completed full testing at the Bus Testing will be reported in the Performance a bus’ testing contract was signed will facility but that are subsequently section of the Bus Testing Report (full determine the applicability of the brake produced with major changes in or partial, as appropriate) for a bus performance and Emissions tests. configuration or components. Consistent model. Data from the Emissions test will Models whose testing contracts were with current policy, partial testing be reported in a new Emissions section signed before the effective date of this determinations will be made on a case- of the Bus Testing Report (full or partial, regulation and that continue to be by-case basis. Partial testing may be as appropriate) for a bus model. Data produced without major changes in any required when changes made to a bus from these tests will also be available on structure or systems will not be required are expected to produce significantly the interactive Bus Testing Database to return to the Bus Testing Center to different data from that previously accessible at http:// undergo brake performance and obtained at the Bus Testing facility. www.altoonabustest.com.

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FTA also seeks comments on how to Buses That Exceed Weight Limits When FTA also seek comments on whether it present data collected from the brake Fully Loaded should apply to all transit vehicles, and performance and Emissions tests better FTA notes that a number of buses if not, then how it should be applied. in the Bus Testing Reports as well as in tested at the Bus Testing Center could For example, dedicated paratransit the Bus Testing Database. FTA also not be operated in their fully loaded vehicles may require a large open floor welcomes comments on how to present mode (i.e., with all seats and standee area to allow wheelchair maneuvering, the data from any of the eight test positions occupied), since doing so and would not normally be operated categories more effectively. would have caused their actual weight with a full load of standee passengers. Alternatively, FTA seeks comments on Other Proposed Changes to exceed either their gross vehicle weight ratings (GVWR) or a front or rear whether the definition for ‘‘gross FTA seeks comments on the following weight’’ could be revised to address changes that are not specified by statute gross axle weight rating (GAWR). In these cases, testing ballast was removed such situations, and what the but which may improve the functioning ramifications of such a change in of the program, enhance its value, or from these buses until their actual measured gross and axle weights did not definition might be. clarify existing provisions. 2. Continue the operator’s current exceed their specified GVWR or practice of deleting ballast until the bus Service Life Category GAWRs. This is necessary because State is within legal weight limits, but place law prevents the Bus Testing Operator Section 665.11(e) of FTA’s Bus a more prominent notice in the Bus from operating buses on public Testing Regulation gives general Testing Report stating that the bus will roadways when loaded in excess of their guidance on the types of buses that fall exceed its maximum GVWR and/or into each service life category. However, maximum legal weight ratings. GAWR with all passenger positions Section 665.11(f) states, ‘‘Tests However, FTA notes that the test data occupied, and alerting readers that the performed in a higher service life may not then reflect the performance of testing data may not be representative of category (i.e., longer service life) need these buses in actual service, where the bus’ actual in-service durability. not be repeated when the same bus operators commonly disregard the legal 3. Decline to test a bus that exceeds model is used in lesser service life weight limits to avoid leaving its GAWR or GVWR when loaded to full applications.’’ Consequently, over the passengers behind at a stop. FTA seeks capacity according to the test procedure. past several years FTA has noticed a comments on the following three trend of manufacturers sometimes approaches for addressing these Family of Vehicles testing buses in a higher service life situations: FTA seeks comments on whether it is category than FTA had originally 1. Perform any tests that are specified appropriate to expand its existing contemplated for buses of similar in the test procedures to be performed ‘‘Family of Vehicles’’ policy to the construction. at GVW on the test track (which is not 7-year (or higher) service life categories. FTA had hoped that this regulatory a public roadway) with all seats and The existing Family of Vehicles policy flexibility would ease burdens on both standee positions ballasted, and perform is limited to buses in the 4-year and 5- transit manufacturers and customers any tests that are specified in the test year service life categories only, and and, combined with market forces, procedures to be performed at seated allows manufacturers that have tested a would over time encourage improved load weight (SLW) on the test track with complete bus built on one third-party durability and useful life of buses. all seats ballasted. Although the bus chassis to offer variants of that bus body Grantees have reported a downside as would be overloaded, the test data may on a different (but similar) mass- they find that some of these ‘‘uprated’’ be more representative of the conditions produced chassis that has been tested at buses cannot functionally meet their the bus will face in actual service. This the Bus Testing Center on any bus by advertised useful service life. approach would help to ‘‘flag’’ buses any other bus manufacturer. FTA seeks FTA seeks comments on whether it that are not adequately able to comments on the desirability and should maintain its current policy of withstand the rigors of transit service. ramifications of extending the family of allowing manufacturers to determine The Bus Testing Report would vehicles policy to all buses built on the useful life category in which their prominently state that certain third party chassis. buses will be tested and expecting (specified) portions of the test were grantees to evaluate the bus testing performed in excess of the (specified) Separate Reporting of Third-Party reports carefully to assess whether the gross and/or axle weight rating(s). In Chassis Test Results bus will in fact adequately meet their addition, any time the bus had to be While the law authorizing the Bus service life requirements. FTA also operated on public roadways, the Testing Program (49 U.S.C. 5318) treats seeks comments on alternative policies manufacturer would need to pay the buses as integrated systems, FTA’s for determining the service life category facility operator for the cost of Family of Vehicles policy described in in which a particular bus model will be unloading ballast to comply with the the previous paragraph would be easier tested, such as (1) redefining the legal weight ratings, as well as the cost to implement and understand if the Bus characteristics of buses in each service of restoring the ballast when the bus Testing Center were to produce separate life category, and if that approach is returned to the test track (the operator testing reports for third-party chassis. taken, what those characteristics should could make operational adjustments to These reports could be prepared by be; (2) requiring manufacturers to limit, but probably not eliminate, the identifying, separating out, and request an official determination from number of times this unloading/ summarizing only the chassis-related FTA of a vehicle’s service life category; reloading cycle occurs). FTA also seek data during tests of buses built on third- or (3) providing guidance on the comments on whether manufacturers of party chassis. However, the Bus Testing standard useful life based on type of such buses should pay the entire cost of Center operator has expressed concern construction but allowing this unloading/reloading activity, or that in past experience, a significant manufacturers to test and sell in higher whether this should be included in the number of buses are tested on modified service life categories if they post a overall testing charges for which third-party chassis, and these ‘‘durability assurance’’ bond or similar manufacturers pay only 20 percent of modifications, even if performed in instrument. the total. If such a policy is adopted, strict compliance with the

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manufacturer’s guidelines, would emissions control system, engine-out vehicle manufacturers, intermediate frustrate comparisons of data on third- emissions, final acceptance, gross manufacturers, final stage party chassis. FTA seeks comments on weight, hybrid, parking brake, partial manufacturers, and alterers (see 49 CFR the desirability of preparing separate testing report, regenerative braking Part 567 for definitions). Depending on test reports for third-party chassis that system, retarder, seated load weight, the roles each of these entities plays are tested in the course of testing service brake(s), and tailpipe emissions. with regard to a vehicle, they may all be complete buses built on those chassis. FTA uses these terms in its test considered manufacturers and, FTA also seeks comments on any procedures, and frequently uses these accordingly, have some responsibilities practical considerations that may need terms in its determinations of testing with regard to certification of to be addressed or difficulties that may requirements for new and modified bus compliance and any necessary safety be presented, as well as the best ways models; however, the regulation recalls under the laws NHTSA to separate and report data on third- previously did not define the terms. administers. These distinctions are party chassis. Finally, FTA seeks FTA also proposes to replace the relevant only with regard to vehicles comments on how the costs of this existing term mass-produced chassis with which more than one manufacturer additional reporting should be borne. with the term third-party chassis, is involved prior to the first retail sale. ‘‘OEM’’ is not actually defined in FTA Evaluation/Recommendation of defined as a commercially available NHTSA’s rules, but NHTSA sometimes Bus Models chassis whose design, manufacturing, and quality control are performed by an uses the term to refer to major vehicle A number of FTA grantees have asked entity independent of the final stage bus manufacturers (some rules use the term for issuance of a ‘‘pass/fail’’ manufacturer. FTA feels that this to refer to manufacturers of motor determination for buses in the Bus definition more accurately captures the vehicle equipment that is used in new Testing Reports. Experience has shown characteristics of these chassis. Several vehicles). FTA seeks comment on that the level of bus performance other definitions are consequently whether it would be appropriate to required varies among operators, and modified to substitute the term third- continue to regard such a vehicle as durability that is adequate for one party chassis for the term mass- ‘‘modified’’ by a third party if the third transit operator may be inadequate for produced chassis, and the definition for party is regarded as an OEM in its own another. Therefore, it would be difficult non-mass-produced chassis or van is right and the modified vehicle is to establish pass/fail thresholds in an deleted. FTA notes that when the regarded as separate and distinct from optimal manner for all bus purchasers. existing Bus Testing Regulation was the vehicle upon which it is based. Instead, Bus Testing Reports present written, the term mass-produced FTA proposes to modify the data so that grantees can make informed chassis, defined as production in excess definition for unmodified third-party decisions about the suitability of a of 20,000 units annually, applied to (formerly mass-produced) chassis by particular bus model. FTA grantees have only two brands of chassis that were deleting the statement, ‘‘A bus chassis noted that state or local procurement appropriate for and typically only used modified by the addition of a tandem or provisions requiring selection of the low in the 4-year (i.e., light) and 5-year (i.e., tag axle is not considered an bidder sometimes result in the medium-light) service life categories. unmodified third-party chassis,’’ acquisition of less suitable buses, and This was a means of giving relief to because this procedure will either be that a Bus Testing Report ‘‘pass/fail’’ small bus manufacturers that used these prohibited (most likely), or permitted system might provide a basis to remove within strict limits, by the OEM’s an inadequate bus model from high-volume commercial chassis. However, in the 18 years since the modification guidelines. consideration. FTA seeks comments on References to the term mass whether the Bus Testing Reports should regulation was written, the industry has evolved, and now there are several transportation have been changed to include a ‘‘pass/fail’’ criterion or a public transportation in conformance ‘‘recommended/not-recommended’’ manufacturers of buses using commercial chassis in the medium-light with SAFETEA–LU, the obsolete determination, and if so, how thresholds definition for FT Act has been deleted, for such determinations should be through medium-heavy-duty bus categories. These chassis are produced and several other minor edits are established. Alternatively, FTA seeks proposed to improve clarity. FTA seeks comments on improved ways to in significant numbers, and although some may not reach the threshold of comments on these proposed new or enhance the presentation of data in the revised definitions of terms in Part 665. reports (e.g., by presenting data 20,000 units annually, most if not all are graphically) so that information for produced using mass-production Section 665.7 Grantee certification of decision-making is more readily techniques. compliance apparent and better informs local FTA seeks comment on whether its FTA is not proposing any changes in decisions. definitions of original equipment policy or procedure, however, the text manufacturer (OEM) and modified Section by Section Analysis of this section has been revised to clear third-party chassis or van are still up ambiguity and remove the long-past Section 665.1 Purpose current with regard to vehicles used in phase-in date. While the proposed The long-past phase-in date has been transit service. FTA is aware that many regulation still permits grantees to removed. third parties who modify OEM vehicles receive the Test Report just prior to final are themselves considered acceptance, FTA continues to Section 665.3 Scope manufacturers for purposes of National recommend strongly that grantees The references have been updated, Highway Traffic Safety Administration carefully review and assess the and a list of long-past phase-in dates has (NHTSA) regulations, depending upon applicable Bus Testing Report(s) before been removed. the scope of the modifications and committing to purchasing a particular whether or not they were undertaken bus model. Section 665.5 Definitions prior to first retail sale. Although most FTA proposes to add new definitions of NHTSA’s regulations refer generally Section 665.11 Testing requirements for the terms automotive, [full] bus to ‘‘manufacturers,’’ NHTSA The list of full tests in Section testing report, curb weight, emissions, distinguishes between incomplete 665.11(b) is expanded by including

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braking performance and Emissions Section 665.25 Transportation of levels of government. Therefore, the tests. FTA proposes to delete the second vehicle consultation and funding requirements sentence in Section 665.11(f), which FTA is not proposing any changes. of Executive Order 13132 do not apply. stated, ‘‘However, the use of a bus model in a service life application Section 665.27 Procedures during C. Executive Order 13175 testing higher than it has been tested for may This NPRM has been analyzed in make the bus subject to the bus testing FTA is proposing to remove the accordance with the principles and requirements.’’ FTA policy has current paragraphs (a) and (b) which are criteria contained in Executive Order consistently been that a bus may not be already addressed elsewhere in the 13175 (‘‘Consultation and Coordination offered in a higher service life category regulation. The procedures for with Indian Tribal Governments’’). than it has been tested in (but a bus determining which tests shall be Because this NPRM does not have tribal manufacturer may re-test a bus model in performed are addressed in section implications and does not impose direct a higher service life category if the 665.21(b)(3), and the apportionment of compliance costs, the funding and manufacturer believes it is appropriate the testing fee due to the manufacturer’s consultation requirements of Executive to do so). Additional minor edits are withdrawal of a bus from the bus testing Order 13175 do not apply. proposed for the sake of consistency and program is currently addressed in clarity. FTA seeks comments on these section 665.23(b). D. Regulatory Flexibility Act and changes, and also seeks comments on Executive Order 13272 whether the guidance on certain Appendix A to Part 665—Tests To Be characteristics of buses typical of each Performed at the Bus Testing Facility The Regulatory Flexibility Act (5 service life category should be retained The paragraph describing the U.S.C. 601–611) requires each agency to or modified. Performance test is modified to add a analyze regulations and proposals to assess their impact on small businesses Section 665.13 Test report and description of the proposed braking and other small entities to determine manufacturer certification performance test. A new paragraph describing the proposed Emissions test whether the rule or proposal will have FTA proposes several minor edits in has been added. The introductory a significant economic impact on a this section for clarity, and to paragraph has been edited accordingly. substantial number of small entities. acknowledge that many buses are Where applicable, the descriptions have Although this NPRM imposes new acquired through a dealer rather than been edited to conform to the actual test costs, those costs are not significant and directly from the manufacturer. FTA procedures currently in use, speculative are 80 percent paid for by FTA. also proposes to change the reference to comments in the original 19-year-old Therefore, FTA believes that this the ‘‘owner of the test report’’ in section text have been deleted, the descriptions proposal does not require further 665.13(d) to read ‘‘bus manufacturer.’’ have been changed from the future to analysis under the Regulatory While the manufacturer can control the present tense, and unnecessary Flexibility Act. FTA requests public whether the report is released to the details (e.g., weights or speeds, which comment on whether the proposals public (e.g., the manufacturer decides are described in the actual test contained in this NPRM will have a that the bus model will not compete for procedures) have been removed. significant economic impact on a FTA-funded procurements), the reports substantial number of small entities. are owned by the U.S. Government on Regulatory Analyses and Notices E. Unfunded Mandates Reform Act of behalf of the public. A. Statutory/Legal Authority for This 1995 Section 665.21 Scheduling Rulemaking This section is revised to remove the Executive Order 12866 and DOT This NPRM does not propose regulatory specification of a name, Regulatory Policies and Procedures. unfunded mandates under the address, and phone number of the Bus This NPRM is a nonsignificant Unfunded Mandates Reform Act of Testing Program Operator, and replace it regulatory action under section 3(f) of 1995. If the proposals are adopted into with a link to a website with contact Executive Order 12866 and, therefore, a NPRM, it will not result in costs of information and scheduling procedures. was not reviewed by the Office of $100 million or more (adjusted annually Management and Budget. This NPRM is for inflation), in the aggregate, to any of Section 665.23 Fees also nonsignificant under the Regulatory the following: State, local, or Native FTA is not proposing any changes to Policies and Procedures of the American tribal governments, or the the text of the regulation itself, although Department of Transportation (44 FR private sector. the operator’s fee schedule referenced in 11034, Feb. 26, 1979). This NPRM F. Paperwork Reduction Act the regulation will be amended to imposes minor compliance costs on the include the new fees proposed for the regulated industry. FTA, however, will This NPRM proposes no new brake performance and emissions tests. pay 80% of any incremental testing information collection requirements. FTA supports continuation of the costs. operator’s policy that in cases of pro- G. Regulation Identifier Number (RIN) rating the test fee due to early B. Executive Order 13132 withdrawal of a bus under test, the This NPRM has been analyzed in A regulation identifier number (RIN) manufacturer’s 20% share of the test fee accordance with the principles and is assigned to each regulatory action is applied toward testing costs before criteria contained in Executive Order listed in the Unified Agenda of Federal the 80% FTA share is applied. The 13132 (‘‘Federalism’’). This NPRM does Regulations. The Regulatory Information operator’s unchanged schedule of fees not include any regulation that has Service Center publishes the Unified for the existing tests and its proposed substantial direct effects on the States, Agenda in April and October of each schedule of fees for the additional brake the relationship between the national year. The RIN number contained in the performance and emissions tests are government and the States, or the heading of this document may be used available for review in the docket (see distribution of power and to cross-reference this action with the ADDRESSES). responsibilities among the various Unified Agenda.

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H. Environmental Assessment for the purchase or lease of buses with Engine-out emissions means the The National Environmental Policy funds obligated by the FTA shall certify emissions coming out of the engine Act of 1969 (NEPA), as amended (42 to the FTA that any new bus model before they are changed, captured, or U.S.C. 4321–4347), requires Federal acquired with such assistance has been otherwise affected by the emissions agencies to consider the consequences tested in accordance with this part. This control system. of major federal actions and prepare a part contains the information necessary Final acceptance means that a detailed statement on actions for a recipient to ensure compliance recipient has released the FTA-provided significantly affecting the quality of the with this provision. funds to a bus manufacturer or dealer in connection with a bus procurement. human environment. There are no § 665.3 Scope. significant environmental impacts Gross weight (gross vehicle weight) This part shall apply to an entity associated with this NPRM. means the curb weight of the bus plus receiving Federal financial assistance passengers simulated by adding 150 I. Privacy Act under 49 U.S.C. 5307, 5309, 5310, or pounds of ballast to each seating Anyone is able to search the 5311. position and 150 pounds for each 1.5 square foot of free floor space. electronic form for all comments § 665.5 Definitions. received into any of our dockets by the Hybrid means a propulsion system As used in this part— name of the individual submitting the that combines two power sources, at Administrator means the comments (or signing the comment, if least one of which is capable of Administrator of the Federal Transit submitted on behalf of an association, capturing, storing, and re-using energy. Administration or the Administrator’s business, labor union, etc.). You may Major change in chassis design designee. review DOT’s complete Privacy Act means, for vehicles manufactured on a Automotive means that the bus is not Statement in the Federal Register third-party chassis, a change in frame continuously dependent on external published on April 11, 2000 (Volume structure, material or configuration, or a power or guidance for normal operation. 65, Number 70; Pages 19477–78) or you change in chassis suspension type. Intermittent use of external power or may visit www.regulations.gov. Major change in components means: guidance shall not automatically relieve (1) For those vehicles that are not List of Subjects a bus of its automotive character or manufactured on a third-party chassis, a Buses, Grant programs— requirement for Bus Testing. change in a vehicle’s engine, axle, transportation, Public transportation, Bus means a rubber-tired automotive transmission, suspension, or steering Motor vehicle safety, Reporting and vehicle used for the provision of public components; recordkeeping requirements. transportation service by or for a (2) For those that are manufactured on For the reasons stated in the recipient. a third-party chassis, a change in the preamble, the Federal Transit Bus model means a bus design or vehicle’s chassis from one major design Administration proposes to amend 49 variation of a bus design usually to another. CFR Part 665 as set forth below: designated by the manufacturer by a Major change in configuration means specific name and/or model number. a change that is expected to have a Title 49—Transportation Bus testing facility means a testing significant impact on vehicle handling facility established by renovation of a PART 665—BUS TESTING and stability or structural integrity. facility constructed with Federal Modified third-party chassis or van 1. The authority citation for Part 665 assistance at Altoona, Pennsylvania, means a vehicle that is manufactured is revised to read as follows: under section 317(b)(1) of the Surface from an incomplete, partially assembled Authority: 49 U.S.C. 5318 and 49 CFR 1.51. Transportation and Uniform Relocation third-party chassis or van as provided Assistance Act of 1987, and includes by an OEM to a small bus manufacturer. 2. Revise Part 665 to read as follows: test track facilities operated in This includes vehicles whose chassis PART 665—BUS TESTING connection with the facility. structure has been modified to include: Bus testing report, also full bus testing a tandem or tag axle; a drop or lowered Subpart A—General report, means a complete test report for floor; changes to the GVWR from the Sec. a bus model, documenting the results of OEM rating; or other modifications that 665.1 Purpose. performing the complete set of bus tests are not made in strict conformance with 665.3 Scope. on a bus model. the OEM’s modifications guidelines. 665.5 Definitions. Curb weight means the weight of the New bus model means a bus model 665.7 Grantee certification of compliance. empty, ready-to-operate bus plus driver that— Subpart B—Bus Testing Procedures and fuel. (1) Has not been used in public 665.11 Testing requirements. Emissions means the components of transportation service in the United 665.13 Test report and manufacturer the engine tailpipe exhaust that are States before October 1, 1988; or certification. regulated by the United States (2) Has been used in such service but Environmental Protection Agency Subpart C—Operations which after September 30, 1988, is being (EPA), plus carbon dioxide (CO2) and produced with a major change in 665.21 Scheduling. methane (CH4). configuration or a major change in 665.23 Fees. Emissions control system means the 665.25 Transportation of vehicle. components. 665.27 Procedures during testing. components on a bus whose primary Operator means the operator of the purpose is to minimize regulated bus testing facility. Appendix A to Part 665—Tests To Be emissions before they reach the tailpipe Original equipment manufacturer Performed at the Bus Testing Facility exit. This definition does not include (OEM) means the original manufacturer Subpart A—General components that contribute to low of a chassis or van supplied as a emissions as a side effect of the manner complete or incomplete vehicle to a bus § 665.1 Purpose. in which they perform their primary manufacturer. An applicant for Federal financial function (e.g., fuel injectors or Parking brake means a system that assistance under the Federal Transit Act combustion chambers). prevents the bus from moving when

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parked by preventing the wheels from Unmodified mass-produced van (d) If the new bus model has rotating. means a van that is mass-produced, previously been tested at the bus testing Partial test(ing) report means a report complete and fully assembled as facility, but is subsequently documenting, for a previously-tested provided by an OEM. This shall include manufactured with a major change in bus model that is produced with major vans with raised roofs, and/or chassis or components, then the new changes, the results of performing only wheelchair lifts, or ramps that are bus model may undergo partial testing. that subset of the complete set of bus installed by the OEM, or by a party (e) The following vehicle types shall tests in which significantly different other than the OEM provided that the be tested: data would reasonably be expected as a installation of these components is (1) Large-size, heavy-duty transit result of the changes made to the bus completed in strict conformance with buses (approximately 35’–40’ in length, from the configuration documented in the OEM modification guidelines. as well as articulated buses) with a the original full bus testing report. A Unmodified third-party chassis means minimum service life of 12 years or partial testing report is not valid unless a third-party chassis that either has not 500,000 miles; accompanied by the corresponding full been modified, or has been modified in (2) Medium-size, heavy-duty transit Bus Testing Report. strict conformance with the OEM’s buses (approximately 30’ in length) with Partial testing means the performance modification guidelines. a minimum service life of ten years or 350,000 miles; of only that subset of the complete set § 665.7 Grantee certification of of bus tests in which significantly compliance. (3) Medium-size, medium duty transit different data would reasonably be buses (approximately 30’ in length) with (a) In each application to FTA for the a minimum service life of seven years or expected compared to the data obtained purchase or lease of any new bus model, in previous full testing of the baseline 200,000 miles; or any bus model with a major change (4) Medium-size, light duty transit bus model at the bus testing facility. in configuration or components to be Public transportation service means buses (approximately 25’–35’ in length) acquired or leased with funds obligated with a minimum service life of five the operation of a vehicle that provides by the FTA, the recipient shall certify general or special service to the public years or 150,000 miles; and that the bus was tested at the bus testing (5) Other light duty vehicles such as on a regular and continuing basis. facility. The recipient shall receive the Recipient means an entity that small buses and regular and specialized appropriate full bus testing report and vans with a minimum service life of receives funds under 49 U.S.C. 5307, any applicable partial testing report(s) four years or 100,000 miles. 5309, 5310, or 5311, either directly from before final acceptance of the first FTA or through a State administering (f) Tests performed in a higher service vehicle by the recipient. life category (i.e., longer service life) agency. (b) In dealing with a bus manufacturer need not be repeated when the same bus Regenerative braking system means a or dealer, the recipient shall be model is used in lesser service life system that decelerates a bus by responsible for determining whether a applications. recovering its kinetic energy for on- vehicle to be acquired requires full (g) The operator of the bus testing board storage and subsequent use. testing or partial testing or has already facility shall develop a test plan for the Retarder means a system other than satisfied the requirements of Part 665. testing of vehicles at the facility. The the service brakes that slows a bus by test plan shall follow the guidelines set dissipating kinetic energy. Subpart B—Bus Testing Procedures forth in Appendix A of this Part. Seated load weight means the weight § 665.11 Testing requirements. of the bus plus driver, fuel, and seated (a) A new bus model to be tested at § 665.13 Test report and manufacturer passengers simulated by adding 150 certification. the bus testing facility shall— pounds of ballast to each seating (1) Be a single model; (a) Upon completion of testing, the position. (2) Meet all applicable Federal Motor operator of the facility shall provide the Service brake(s) means the primary Vehicle Safety Standards, as defined by resulting test report to the entity that system used by the driver during normal the National Highway Traffic Safety submitted the bus for testing. operation to reduce the speed of a Administration in Part 571 of this title; (b)(1) A manufacturer or dealer of a moving bus and to allow the driver to and new bus model or a bus produced with bring the bus to a controlled stop and (3) Be substantially fabricated and a major change in component or hold it there. Service brakes may be assembled using the techniques, tooling, configuration shall provide a copy of the supplemented by retarders or by and materials that will be used in corresponding full bus testing report regenerative braking systems. production of subsequent buses of that and any applicable partial testing Small bus manufacturer means a model. report(s) to a recipient during the point secondary market assembler that (b) If the new bus model has not in the procurement process specified by acquires a chassis or van from an previously been tested at the bus testing the recipient, but in all cases before original equipment manufacturer for facility, then the new bus model shall final acceptance of the first bus by the subsequent modification or assembly undergo the full tests requirements for recipient. and sale as 5-year/150,000-mile or 4- Maintainability, Reliability, Safety, (2) A manufacturer who releases a year/100,000-mile minimum service life Performance including braking report under paragraph (b)(1) of this vehicle. performance, Structural Integrity, Fuel section also shall provide notice to the Tailpipe emissions means the exhaust Economy, Noise, and Emissions; operator of the facility that the report is constituents actually emitted to the (c) If the new bus model has not available to the public. atmosphere at the exit of the vehicle previously been tested at the bus testing (c) If a bus model subject to a bus tailpipe or corresponding system. facility and is being produced on a testing report has a change that is not a Third party chassis means a third-party chassis that has been major change under this Part, the commercially available chassis whose previously tested on another bus model manufacturer or dealer shall advise the design, manufacturing, and quality at the bus testing facility, then the new recipient during the procurement control are performed by an entity bus model may undergo partial testing process and shall include a description independent of the bus manufacturer. requirements; of the change and the manufacturer’s

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basis for concluding that it is not a Appendix A to Part 665—Tests To Be 4. Performance major change. Performed at the Bus Testing Facility The Performance test should be performed (d) A bus testing report shall be on the test track and should measure The eight tests to be performed on each acceleration, maximum speed attained, available publicly once the bus vehicle are required by SAFETEA–LU and gradeability, and braking. The bus should be manufacturer makes it available during are based in part on tests described in the accelerated at full throttle from a full stop to a recipient’s procurement process. The FTA report ‘‘First Article Transit Bus Test operator of the facility shall have copies maximum safe speed on the track. The Plan,’’ which is mentioned in the legislative gradeability capabilities should be measured of all the publicly available reports history of section 317 of STURAA. When when starting from a full stop on a steep available for distribution. appropriate, Society of Automotive Engineers grade, and supplemented by calculating (e) The bus testing report is the only (SAE) test procedures and other procedures gradeability based on the acceleration data. information or documentation that shall accepted by the transit industry will be used. The functionality and performance of the be made publicly available in The eight tests are described in general terms service, regenerative (if applicable), and connection with any bus model tested at in the following paragraphs. parking brake systems should be evaluated at the bus testing facility. 1. Maintainability the test track. The test bus should be subjected to a series of brake stops from The Maintainability test should include Subpart C—Operations specified speeds on high, low, and split- bus servicing, preventive maintenance, friction surfaces. The parking brake should § 665.21 Scheduling. inspection, and repair. It also should include be evaluated with the bus parked facing both the removal and reinstallation of the engine up and down a steep grade. (a) To schedule a bus for testing, a and drive train components that would be manufacturer shall contact the operator expected to require replacement during the 5. Structural Integrity of FTA’s Bus Testing Program. Contact bus’s normal life cycle. Much of the Two complementary Structural Integrity information and procedures are maintainability data should be obtained tests should be performed. Structural available on the operator’s Bus Testing during the bus durability test at the test track. Strength and Distortion tests should be Web site, http:// Up to twenty-five percent of the bus life performed at the Bus Testing Center, and the www.altoonabustest.com. should be simulated and servicing, Structural Durability test should be (b) Upon contacting the operator, the preventive maintenance, and repair actions performed at the test track. operator shall provide the manufacturer should be recorded and reported. These a. Structural Strength and Distortion Tests with the following: actions should be performed by test facility staff, although manufacturers should be (1) A shakedown of the bus structure (1) A draft contract for the testing; should be conducted by loading and (2) A fee schedule; and allowed to maintain a representative on site during the testing. Test facility staff may unloading the bus with a distributed load equal to 2.5 times the load applied for the (3) The draft test procedures that will require a manufacturer to provide vehicle gross weight portions of testing. The bus be conducted on the vehicle. servicing or repair, under the supervision of should then be unloaded and inspected for (c) The operator shall provide final the facility staff. Because the operator will any permanent deformation on the floor or test procedures to be conducted on the not become familiar with the detailed design coach structure. This test should be repeated vehicle at the time of contract of all new bus models that are tested, tests a second time, and should be repeated up to to determine the time and skill required to execution. one more time if the permanent deflections remove and reinstall an engine, a (d) The operator shall process vary significantly between the first and transmission, or other major propulsion vehicles for testing in the order in second tests. which the contracts are signed. system components may require advice from (2) The bus should be loaded to gross the bus manufacturer. All routine and vehicle weight, with one wheel on top of a § 665.23 Fees. corrective maintenance should be carried out curb and then in a pothole. This test should (a) The operator shall charge fees in by the test operator in accordance with the be repeated for all four wheels. The test accordance with a schedule approved manufacturer’s specifications. verifies: The Maintainability test report should (a) Normal operation of the steering by FTA, which shall include different include the frequency, personnel hours, and fees for partial testing. mechanism and (b) Operability of all replacement parts or supplies required for passenger doors, passenger escape (b) Fees shall be prorated for a vehicle each action during the test. The accessibility withdrawn from the bus testing facility mechanisms, windows, and service doors. A of selected components and other water leak test should be conducted in each before the completion of testing. observations that could be important to a bus suspension travel condition. user should be included in the report. § 665.25 Transportation of vehicle. (3) Using a load-equalizing towing sling, a 2. Reliability static tension load equal to 1.2 times the curb A manufacturer shall be responsible weight should be applied to the bus towing for transporting its vehicle to and from Reliability should not be a separate test, fixtures (front and rear). The load should be the bus testing facility at the beginning but should be addressed by recording all bus removed and the two eyes and adjoining and completion of the testing at the failures and breakdowns during testing. It is structure inspected for damages or recognized that with one test bus it is not manufacturer’s own risk and expense. permanent deformations. feasible to conduct statistical reliability tests. (4) The bus should be towed at curb weight § 665.27 Procedures during testing. The detected bus failures, repair time, and with a heavy wrecker truck for several miles the actions required to return the bus to and then inspected for structural damage or (a) The operator shall perform all operation should be recorded in the report. maintenance and repairs on the test permanent deformation. 3. Safety (5) With the bus at curb weight probable vehicle, consistent with the damages and clearance issues due to tire manufacturer’s specifications, unless The Safety test should consist of a deflating and jacking should be assessed. the operator determines that the nature handling and stability test. The handling and (6) With the bus at curb weight possible of the maintenance or repair is best stability test should be an obstacle avoidance damages or deformation associated with performed by the manufacturer under or double-lane change test performed at the lifting the bus on a two post hoist system or the operator’s supervision. test track. Bus speed should be held constant supporting it on jack stands should be throughout a given test run. Individual test assessed. (b) The manufacturer shall be runs should be made at increasing speeds up permitted to observe all tests. The to a specified maximum or until the bus can b. Structural Durability manufacturer shall not provide no longer be operated safely over the course, The Structural Durability test should be maintenance or service unless requested whichever speed is lower. Both left- and performed on the durability course at the test to do so by the operator. right-hand lane changes should be tested. track, simulating twenty-five percent of the

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vehicle’s normal service life. The bus the U.S. Environmental Protection Agency specified driving cycles. The Emissions test structure should be inspected regularly (EPA) or for other purposes. should be conducted using an emissions during the test, and the mileage and testing laboratory equipped with a chassis 7. Noise identification of any structural anomalies and dynamometer capable of both absorbing and failures should be reported in the Reliability The Noise test should measure interior applying power. test. noise and vibration while the bus is idling (or The Emissions test is not a certification in a comparable operating mode) and driving, 6. Fuel Economy test, and is designed only to enable FTA and also should measure the transmission of recipients to compare the relative emissions The Fuel Economy test should be exterior noise to the interior while the bus is of buses operating on the same set of typical conducted using duty cycles that simulate not running. The exterior noise should be transit driving cycles. The results of this test transit service. This test should measure the measured as the bus is operated past a are not directly comparable to emissions fuel economy of the bus in miles per gallon stationary measurement instrument. measurements obtained by other agencies, or other energy-equivalent units. such as the EPA, for other purposes. The Fuel Economy test should be designed 8. Emissions only to enable FTA recipients to compare the The Emissions test should measure tailpipe Issued on: September 24, 2008. relative fuel economy of buses operating at a emissions of those exhaust constituents Sherry E. Little, consistent loading condition on the same set regulated by the United States Environmental Deputy Administrator. of typical transit driving cycles. The results Protection Agency (EPA) for transit bus of this test are not directly comparable to fuel emissions, plus carbon dioxide (CO2) and [FR Doc. E8–22913 Filed 9–29–08; 8:45 am] economy estimates by other agencies, such as methane (CH4), as the bus is operated over BILLING CODE 4910–57–P

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Notices Federal Register Vol. 73, No. 190

Tuesday, September 30, 2008

This section of the FEDERAL REGISTER Management staff and Committee 20233, telephone 301–763–6590. For contains documents other than rules or members. However, persons who wish TTY callers, please use the Federal proposed rules that are applicable to the to bring recreation fee matters to the Relay Service at 1–800–877–8339. public. Notices of hearings and investigations, attention of the Committee may file SUPPLEMENTARY INFORMATION: The 2010 committee meetings, agency decisions and written statements with the Committee rulings, delegations of authority, filing of Census Advisory Committee is petitions and applications and agency staff before or after the meeting. A composed of a Chair, Vice-Chair, and 20 statements of organization and functions are public input session will be provided member organizations—all appointed by examples of documents appearing in this during the meeting and individuals who the Secretary of Commerce. The section. wish to address the Recreation RAC will Committee considers the goals of the have an opportunity at 9:30 a.m. on decennial census, including the October 16. Comments will be limited to American Community Survey and DEPARTMENT OF AGRICULTURE three minutes per person. The related programs, and users’ needs for Recreation RAC is authorized by the information provided by the decennial Forest Service Federal Land Recreation Enhancement census from the perspective of outside Act, which was signed into law by data users and other organizations Notice of Meeting; Federal Lands President Bush in December 2004. having a substantial interest and Recreation Enhancement Act (Title VIII, Dated: September 22, 2008. expertise in the conduct and outcome of Pub. L. 108–447) the decennial census. The Committee Greg Greenway, AGENCY: Pacific Southwest Region, has been established in accordance with Acting for Designated Federal Official, the Federal Advisory Committee Act Forest Service, U.S. Department of Recreation RAC, Pacific Southwest Region. Agriculture. (Title 5, United States Code, Appendix [FR Doc. E8–22771 Filed 9–29–08; 8:45 am] 2, Section 10(a)(b)). ACTION: Notice of meeting. BILLING CODE 3410–11–M A brief period will be set aside at the SUMMARY: The Pacific Southwest meeting for public comment. However, Recreation Resource Advisory individuals with extensive statements Committee (Recreation RAC) will hold a DEPARTMENT OF COMMERCE for the record must submit them in writing to the Census Bureau Committee meeting in Sacramento, California. The Bureau of the Census purpose of this meeting is to make Liaison Officer named above at least three working days prior to the meeting. recommendations for fee proposals on 2010 Census Advisory Committee lands managed by the Forest Service Seating is available to the public on a and Bureau of Land Management in AGENCY: Bureau of the Census, first-come, first-served basis. California. The Recreation RRAC will Department of Commerce. The meeting is physically accessible consider fee proposals for increases in ACTION: Notice of public meeting. to people with disabilities. Requests for expanded amenity fees and the sign-language interpretation or other SUMMARY: The Bureau of the Census elimination of an expanded amenity fee auxiliary aids should be directed to the (U.S. Census Bureau) is giving notice of from the Klamath National Forest. In Census Bureau Committee Liaison a meeting of the 2010 Census Advisory addition presentations will be made on Officer as soon as known, preferably Committee. Committee members will Recreation Facility Analysis, two weeks prior to the meeting. address policy, research, and technical Due to increased security and for campground concessionaire program issues related to 2010 Decennial Census access to the meeting, please call 301– and future fee concepts from the Forest Programs. Working groups will be 763–3231 upon arrival at the Census Service. convened to assist in planning efforts Bureau on the day of the meeting. A DATES: The meeting will be held for the 2010 Census and the American photo ID must be presented in order to October 16, 2008 from 9 a.m. to 3 p.m. Community Survey. Last-minute receive your visitor’s badge. Visitors are ADDRESSES: The meeting will be held at changes to the agenda are possible, not allowed beyond the first floor. the BLM California Office, 2800 Cottage which could prevent giving advance Dated: September 23, 2008. Way, W–1928, Sacramento, CA 95825. notification of schedule changes. Steve H. Murdock, Send written comments to Marlene DATES: October 23–24, 2008. On October Director, Bureau of the Census. Finley, Designated Federal Official for 23, the meeting will begin at the Pacific Southwest Region Recreation [FR Doc. E8–22918 Filed 9–29–08; 8:45 am] approximately 8:30 a.m. and end at BILLING CODE 3510–07–P RAC, 1323 Club Drive, Vallejo, CA approximately 5 p.m. On October 24, 94592, 707–562–8856 or 2008, the meeting will begin at [email protected]. approximately 8:30 a.m. and end at DEPARTMENT OF COMMERCE FOR FURTHER INFORMATION CONTACT: approximately 3 p.m. Marlene Finley, Designated Federal ADDRESSES: The meeting will be held at Bureau of Industry and Security Official, Pacific Southwest Region the U.S. Census Bureau Auditorium and Recreation RAC, 1323 Club Drive, Conference Center, 4600 Silver Hill Materials Processing Equipment Vallejo, CA 94592. Road, Suitland, Maryland 20746. Technical Advisory Committee; Notice of Partially Closed Meeting SUPPLEMENTARY INFORMATION: The FOR FURTHER INFORMATION CONTACT: Jeri meeting is open to the public. Green, Committee Liaison Officer, The Materials Processing Equipment Committee discussion is limited to Department of Commerce, U.S. Census Technical Advisory Committee will Forest Service and Bureau of Land Bureau, Room 8H153, Washington, DC meet on October 16, 2008, 9 a.m., Room

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3884, in the Herbert C. Hoover Building, Dated: September 25, 2008. defense. Section 3314 of the Fiscal Year 14th Street between Pennsylvania and Yvette Springer, (FY) 1993 National Defense Constitution Avenues, NW., Committee Liaison Officer. Authorization Act (NDAA) (50 U.S.C. Washington, DC. The Committee [FR Doc. E8–22986 Filed 9–29–08; 8:45 am] 98h–1) formally established a Market advises the Office of the Assistant BILLING CODE 3510–JT–P Impact Committee (the Committee) to Secretary for Export Administration ‘‘advise the National Defense Stockpile with respect to technical questions that Manager on the projected domestic and affect the level of export controls DEPARTMENT OF COMMERCE foreign economic effects of all applicable to materials processing acquisitions and disposals of materials equipment and related technology. Bureau of Industry and Security from the stockpile * * *’’ The Committee must also balance market Agenda [Docket No. 0809191238–81241–01] impact concerns with the statutory Open Session National Defense Stockpile Market requirement to protect the Government 1. Opening Remarks and Impact Committee Request for Public against avoidable loss. Introductions. Comments on the Potential Market The Committee is comprised of 2. Presentation of Papers and Impact of Proposed Stockpile representatives from the Departments of Comments by the Public. Disposals for Fiscal Year 2010 Commerce, State, Agriculture, Defense, 3. Review on September 2008 Energy, Interior, the Treasury, and Wassenaar Expert’s Meeting. AGENCY: Bureau of Industry and Homeland Security, and is co-chaired 4. Discussion on 2009 Proposals. Security, Commerce. by the Departments of Commerce and 5. Report on proposed changes to the ACTION: Notice of inquiry. State. The FY 1993 NDAA directs the Export Administration Regulations. Committee to consult with industry 6. Other Business. SUMMARY: This notice is to advise the representatives that produce, process, or public that the National Defense consume the materials contained in the Closed Session Stockpile Market Impact Committee, co- stockpile. 7. Discussion of matters determined to chaired by the Departments of In Attachment 1, the Defense National be exempt from the provisions relating Commerce and State, is seeking public Stockpile Center (DNSC) lists the to public meetings found in 5 U.S.C. comments on the potential market proposed quantities that are enumerated app. 2 sections 10(a)(1) and 10(a)(3). impact of the proposed disposal levels in the stockpile inventory for the FY The open session will be accessible of excess materials for the Fiscal Year 2010 Annual Materials Plan. The via teleconference to 20 participants on (FY) 2010 Annual Materials Plan. Committee is seeking public comments a first come, first serve basis. To join the DATES: To be considered, written on the potential market impact of the conference, submit inquiries to Ms. comments must be received by October sale of these materials. Public comments Yvette Springer at 30, 2008. are an important element of the [email protected] no later than ADDRESSES: Address all comments Committee’s market impact review October 9, 2008. concerning this notice to Michael process. A limited number of seats will be The quantities listed in Attachment 1 Vaccaro, U.S. Department of Commerce, available for the public session. are not disposal or sales target Bureau of Industry and Security, Office Reservations are not accepted. To the quantities, but rather a statement of the of Strategic Industries and Economic extent that time permits, members of the proposed maximum disposal quantity of Security, 1401 Constitution Avenue, public may present oral statements to each listed material that may be sold in NW., Room 3876, Washington, DC the Committee. The public may submit a particular fiscal year by the DNSC. 20230, fax: (202) 482–5650 (Attn: written statements at any time before or The quantity of each material that will Michael Vaccaro), e-mail: after the meeting. However, to facilitate actually be offered for sale will depend [email protected]; or Peter Secor, U.S. the distribution of public presentation on the market for the material at the Department of State, Bureau of materials to the Committee members, time of the offering as well as on the Economic and Business Affairs, Office the Committee suggests that presenters quantity of each material approved for of International Energy and Commodity forward the public presentation disposal by Congress. Policy, Washington, DC 20520, fax: materials prior to the meeting to Ms. (202) 647–8758 (Attn: Peter Secor), or Submission of Comments Springer via e-mail. The Assistant Secretary for e-mail: [email protected]. The Committee requests that Administration, with the concurrence of FOR FURTHER INFORMATION CONTACT: interested parties provide written the delegate of the General Counsel, David Newsom, Office of Strategic comments, supporting data and formally determined on July 16, 2008, Industries and Economic Security, documentation, and any other relevant pursuant to Section 10(d) of the Federal Bureau of Industry and Security, U.S. information on the potential market Advisory Committee Act, as amended (5 Department of Commerce, Telephone: impact of the sale of these commodities. U.S.C. app. 2 sections (10)(d)), that the (202) 482–7417. All comments must be submitted to the portion of the meeting dealing with SUPPLEMENTARY INFORMATION: address indicated in this notice. All matters the disclosure of which would comments submitted through e-mail Background be likely to frustrate significantly must include the phrase ‘‘Market Impact implementation of an agency action as Under the authority of the Strategic Committee Notice of Inquiry’’ in the described in 5 U.S.C. 552b(c)(9)(B) shall and Critical Materials Stock Piling Act subject line. be exempt from the provisions relating of 1979, as amended (50 U.S.C. 98, et The Committee encourages interested to public meetings found in 5 U.S.C. seq.), the Department of Defense (DOD), persons who wish to comment to do so app. 2 sections 10(a)1 and 10(a)(3). as National Defense Stockpile Manager, at the earliest possible time. The period The remaining portions of the meeting maintains a stockpile of strategic and for submission of comments will close will be open to the public. critical materials to supply the military, on October 30, 2008. The Committee For more information, call Yvette industrial, and essential civilian needs will consider all comments received Springer at (202) 482–2813. of the United States for national before the close of the comment period.

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Comments received after the end of the submission and also provide a non- http://www.bis.doc.gov/foia. This office comment period will be considered, if confidential submission that can be does not maintain a separate public possible, but their consideration cannot placed in the public record. The inspection facility. If you have technical be assured. Committee will seek to protect such difficulties accessing this Web site, All comments submitted in response information to the extent permitted by please call BIS’s Office of to this notice will be made a matter of law. Administration at (202) 482–1900 for public record and will be available for The Office of Administration, Bureau assistance. public inspection and copying. Anyone of Industry and Security, U.S. Dated: September 22, 2008. submitting business confidential Department of Commerce, displays Christopher R. Wall, information should clearly identify the public comments on the BIS Freedom of Assistant Secretary for Export business confidential portion of the Information Act (FOIA) Web site at Administration.

ATTACHMENT 1—PROPOSED FY 2010 ANNUAL MATERIALS PLAN

Material Unit Quantity Footnote

Bauxite, Metallurgical Jamaican ...... LDT 5,000 (1) Beryl Ore ...... ST 1 (1) Beryllium Metal ...... ST 60 ...... Chromium, Ferro ...... ST 100,000 ...... Chromium, Metal ...... ST 1,000 ...... Cobalt ...... LB Co 1,000,000 (1) Columbium Metal Ingots ...... LB Cb 10,000 (1) Germanium ...... Kg 8,000 ...... Manganese, Chemical Grade ...... SDT 5,000 (1) Manganese, Ferro ...... ST 100,000 ...... Manganese, Metallurgical Grade ...... SDT 100,000 (1) Platinum ...... Tr Oz 9,000 (1) Platinum-Iridium ...... Tr Oz 1,000 (1) Talc ...... ST 1,000 (1) Tantalum Carbide Powder ...... LB Ta 4,000 (1) Tin ...... MT 4,000 (1) Tungsten Metal Powder ...... LB W 300,000 ...... Tungsten Ores & Concentrates ...... LB W 8,000,000 ...... VTE, Quebracho ...... LT 6,000 (1) Zinc ...... ST 8,500 (1) 1 Actual quantity will be limited to remaining inventory.

[FR Doc. E8–22734 Filed 9–29–08; 8:45 am] countries in transactions where BIS is SUPPLEMENTARY INFORMATION: In BILLING CODE 3510–33–P not able to verify the existence or administering export controls under the authenticity of the end-user, Export Administration Regulations (15 intermediate consignee, ultimate CFR Parts 730 to 774) (‘‘EAR’’), BIS DEPARTMENT OF COMMERCE consignee, or other party to the carries out a number of preventive transaction. These notices advised enforcement activities with respect to Bureau of Industry and Security exporters that the involvement of a individual export transactions. Such [Docket No. 080507636–8637–01] listed person as a party to a proposed activities are intended to assess transaction constitutes a ‘‘red flag’’ as diversion risks, identify potential Revisions to the Unverified List— described in the guidance set forth in violations, verify end-uses, and Guidance as to ‘‘Red Flags’’ Under Supplement No. 3 to 15 CFR Part 732, determine the suitability of end-users to Supplement No. 3 to 15 CFR Part 732 requiring heightened scrutiny by the receive U.S. commodities or technology. AGENCY: Bureau of Industry and exporter before proceeding with such a In carrying out these activities, BIS Security, Commerce. transaction. The notices also stated that, officials, or officials of other federal when warranted, BIS would remove agencies acting on BIS’s behalf, conduct ACTION: Notice. persons from the Unverified List. This PLCs in appropriate situations to verify SUMMARY: On June 14, 2002, the Bureau notice removes one entity from the the bona fides of the transaction and the of Industry and Security (‘‘BIS’’) Unverified List based upon recently suitability of the end-user or ultimate published a notice in the Federal conducted PSVs or scheduled PSVs. consignee. In addition, such officials Register that set forth a list of persons The entity is: Fuchs Oil Middle East sometimes carry out PSVs to ensure that in foreign countries who were parties to Ltd., P.O. Box 7955, Sharjah Airport U.S. exports have actually been past export transactions where pre- Intl. Free Zone, Sharjah, United Arab delivered to the authorized end-user, are license checks (‘‘PLC’’) or post-shipment Emirates. being used in a manner consistent with verifications (‘‘PSV’’) could not be the terms of a license or license DATES: conducted for reasons outside the This notice is effective exception, and are otherwise consistent control of the U.S. Government September 30, 2008. with the EAR. (‘‘Unverified List’’). Additionally, on FOR FURTHER INFORMATION CONTACT: In a notice issued on June 14, 2002 July 16, 2004, BIS published a notice in Todd E. Willis, Assistant Director, (67 FR 40910), BIS set forth an the Federal Register that advised Office of Enforcement Analysis, Bureau Unverified List of certain foreign end- exporters that the Unverified List would of Industry and Security, Telephone users and consignees involved in export also include persons in foreign Number: (202) 482–4255. transactions where BIS officials, or other

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federal officials acting on BIS’s behalf, Emirates because BIS was unable to Bureau of Industry and Security (‘‘BIS’’) were unable to perform a PLC or PSV conduct a PLC, a PSV, and/or was could not conduct a pre license check with respect to certain export unable to verify the existence or (‘‘PLC’’) or a post shipment verification transactions for reasons outside the authenticity of an end user, (‘‘PSV’’) for reasons outside of the U.S. control of the U.S. Government intermediate consignee, ultimate Government’s control; BIS was not able (including a lack of cooperation by the consignee, or other party to an export to verify the existence or authenticity of host government authority, the end- transaction. 71 FR 61706. This notice the end user, intermediate consignee, user, or the ultimate consignee). On July removes the Fuchs Oil Middle East Ltd. ultimate consignee or other party to an 16, 2004, BIS published a notice in the entry from the Unverified List because export transaction; and/or the person is Federal Register that advised exporters BIS recently conducted or scheduled a affiliated with a person on the that the Unverified List would also PSV. Unverified List by virtue of ownership, include persons in foreign countries in The Unverified List, as modified by control, position of responsibility, or transactions where BIS is not able to this notice, is set forth below. other affiliation or connection in the verify the existence or authenticity of Dated: September 12, 2008. conduct of trade or business. Any the end-user, intermediate consignee, Darryl W. Jackson, transaction to which a listed person is ultimate consignee, or other party to the Assistant Secretary of Commerce for Export a party will be deemed to raise a ‘‘red transaction. The notices further stated Enforcement. flag’’ with respect to such transaction that BIS may periodically remove names within the meaning of the guidance set of persons from the list when warranted. Unverified List (As of May 2, 2008) forth in Supplement No. 3 to 15 CFR On October 19, 2006, BIS added to the The Unverified List includes names, Part 732. The red flag applies to the Unverified List Fuchs Oil Middle East countries, and last known addresses of person on the Unverified List regardless Ltd., P.O. Box 7955, Sharjah Airport foreign persons involved in export of where the person is located in the Intl. Free Zone, Sharjah, United Arab transactions with respect to which: the country included on the list.

Name Country Last known address

Lucktrade International ...... Hong Kong Special Adminis- P.O. Box 91150, Tsim Sha Tsui, Hong Kong. trative Region. Brilliant Intervest ...... Malaysia ...... 14–1, Persian 65C, Jalan Pahang Barat, Kuala Lumpur, 53000. Dee Communications M SDN. Malaysia ...... G5/G6, Ground Floor, Jin Gereja, Johor Bahru. BHD. Peluang Teguh ...... Singapore ...... 203 Henderson Road #09–05H, Henderson Industrial Park. Lucktrade International PTE Singapore ...... 35 Tannery Road #01–07 Tannery Block, Ruby Industrial Complex, Singapore Ltd. 347740. Arrow Electronics Industries .... United Arab Emirates ...... 204 Arbift Tower, Benyas Road, Dubai. Jetpower Industrial Ltd ...... Hong Kong Special Adminis- Room 311, 3rd Floor, Wing On Plaza, 62 Mody Road, Tsim Sha Tsui East, trative Region. Kowloon. Onion Enterprises Ltd ...... Hong Kong Special Adminis- Room 311, 3rd Floor, Wing On Plaza, 62 Mody Road, Tsim Sha Tsui East, trative Region. Kowloon. Lucktrade International ...... Hong Kong Special Adminis- Room 311, 3rd Floor, Wing On Plaza, 62 Mody Road, Tsim Sha Tsui East, trative Region. Kowloon. Litchfield Co. Ltd ...... Hong Kong Special Adminis- Room 311, 3rd Floor, Wing On Plaza, 62 Mody Road, Tsim Sha Tsui East, trative Region. Kowloon. Sunford Trading Ltd ...... Hong Kong Special Adminis- Unit 2208, 22/F118 Connaught Road West. trative Region. Parrlab Technical Solutions, Hong Kong Special Adminis- 1204, 12F Shanghai Industrial Building, 48–62 Hennesey Road, Wan Chai. LTD. trative Region. T.Z.H. International Co. Ltd ..... Hong Kong Special Adminis- Room 23, 2/F, Kowloon Bay Ind Center, No. 15 Wany Hoi Rd, Kowloon Bay. trative Region. Design Engineering Center ...... Pakistan ...... House 184, Street 36, Sector F–10/1, Islamabad. Kantry ...... Russia ...... 13/2 Begovaya Street, Moscow. Etalon Company ...... Russia ...... 20B Berezhkovskaya Naberezhnaya, Moscow. Pskovenergo Service ...... Russia ...... 47–A Sovetskaya Street, Pskov, Russia Federation, 180000. Sheeba Import Export ...... Yemen ...... Hadda Street, Sanaa. Aerospace Consumerist Con- United Arab Emirates ...... Sheikh Zayed Road, P.O. Box 17951, Jebel Ali Free Zone, Dubai and Dubai sortium FZCO. International Airport, Dubai, 3365. Medline International LLC ...... United Arab Emirates ...... P.O. Box 86343, Dubai. Al Aarif Factory Equipment United Arab Emirates ...... Sheikh Fahad Saad Alsbah Bldg., Al Maktoum Street, P.O. Box 28162, Dubai, Trading LLC. UAE (also located in Al Quoz district of Dubai). Al-Thamin General Trading United Arab Emirates ...... P.O. Box 41364, Dubai, UAE. LLC. Amiran Trading Company ...... United Arab Emirates ...... Arbift Tower, 1st Floor, Flat No. 1803, Deira, UAE, also P.O. Box 6 1463, Jebel Ali, Dubai, UAE. Bazar Trading Co ...... United Arab Emirates ...... Baniyas Tower, Suite 212, Dubai, UAE. Davood Khosrojerdi, dba Al United Arab Emirates ...... Concord Tower, Al Maktoum Street, PO Box 77900, Dubai, UAE. Musafer Tourism and Cargo. Part Tech Co ...... United Arab Emirates ...... Baniyas Tower, Suite 212, Dubai, UAE. Parto Abgardan ...... United Arab Emirates ...... Showroom #5, Sheikh Rashid bin Khalifa al Maktoum building, Dubai, UAE. Reza Nezam Trading ...... United Arab Emirates ...... Al Dana Center, Al Maktoum Street, P.O. Box 41382, Dubai, UAE. Sarelica (Sar Elica) FZC ...... United Arab Emirates ...... Bldg. #3, Office No. 3 G–08, P.O. Box 41 71 0, Hamariya Free Zone, Sharjah, UAE. Semicom Technology Inter- United Arab Emirates ...... Office No. 18, 6th Floor, Horizons Business Centre, Al-Doha Centre, Al- national LLC. Maktoum St., P.O. Box 41096, Dubai, UAE.

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Name Country Last known address

Vitaswiss Limited ...... United Arab Emirates ...... PO Box 61069, Office #R/A 8 CB03, UAE. Centre Bright Company ...... Hong Kong Special Adminis- Unit 7A, Nathan Commercial Building, 430–436 Nathan Road, Kowloon City, trative Region. Hong Kong. IC Trading Ltd ...... Russia ...... Yauzskaya Str. 8, Bldg 2, Moscow, Russia. Al Minzal Medical Equipment & United Arab Emirates ...... P.O. Box 31107, Sharjah, UAE. Instruments. JSC Chop Vityaz-S ...... Russia ...... 146 Unikh Pionerov Ave, Samara, Russia. Sistem Dizayners Co ...... Baku, Azerbaijan ...... APA: 2 NO.: 60, Merdanov Gardashlari St., Baku, Azerbaijan.

[FR Doc. E8–22985 Filed 9–29–08; 8:45 am] Notice of No Sales Separate Rates BILLING CODE 3510–33–P Under 19 CFR 351.213(d)(3), the In proceedings involving non-market economy (NME) countries, the Department may rescind a review where Department begins with a rebuttable there are no exports, sales, or entries of DEPARTMENT OF COMMERCE presumption that all companies within subject merchandise during the the country are subject to government International Trade Administration respective period of review listed below. control and, thus, should be assigned a If a producer or exporter named in this single antidumping duty deposit rate. It Initiation of Antidumping and notice of initiation had no exports, is the Department’s policy to assign all Countervailing Duty Administrative sales, or entries during the period of exporters of merchandise subject to an Reviews and Requests for Revocation review, it should notify the Department administrative review in an NME in Part within 30 days of publication of this country this single rate unless an notice in the Federal Register. The exporter can demonstrate that it is AGENCY: Import Administration, Department will consider rescinding the sufficiently independent so as to be International Trade Administration, review only if the producer or exporter, entitled to a separate rate. Department of Commerce. as appropriate, submits a properly filed To establish whether a firm is SUMMARY: The Department of Commerce and timely statement certifying that it sufficiently independent from (the Department) has received requests had no exports, sales, or entries of government control of its export to conduct administrative reviews of subject merchandise during the period activities to be entitled to a separate various antidumping and countervailing of review. All submissions must be rate, the Department analyzes each duty orders and findings with August made in accordance with 19 CFR entity exporting the subject anniversary dates. In accordance with 351.303 and are subject to verification merchandise under a test arising from the Final Determination of Sales at Less the Department’s regulations, we are in accordance with section 782(i) of the Than Fair Value: Sparklers from the initiating those administrative reviews. Act. Six copies of the submission The Department also received requests People’s Republic of China, 56 FR 20588 should be submitted to the Assistant (May 6, 1991) (Sparklers), as amplified to revoke two antidumping duty orders Secretary for Import Administration, in part. by Final Determination of Sales at Less International Trade Administration, Than Fair Value: Silicon Carbide from DATES: Effective Date: September 30, Room 1870, U.S. Department of the People’s Republic of China, 59 FR 2008. Commerce, 14th Street & Constitution 22585 (May 2,1994) (Silicon Carbide). In Avenue, NW., Washington, DC 20230. accordance with the separate-rates FOR FURTHER INFORMATION CONTACT: Further, in accordance with section criteria, the Department assigns separate Sheila E. Forbes, Office of AD/CVD 351.303(f)(1)(i) of the regulations, a copy rates to companies in NME cases only Operations, Customs Unit, Import of each request must be served on every if respondents can demonstrate the Administration, International Trade party on the Department’s service list. absence of both de jure and de facto Administration, U.S. Department of government control over export Respondent Selection Commerce, 14th Street and Constitution activities. Avenue, NW., Washington, DC 20230, In the event the Department limits the All firms listed below that wish to telephone: (202) 482–4697. number of respondents for individual qualify for separate-rate status in the administrative reviews involving NME SUPPLEMENTARY INFORMATION: examination for administrative reviews, the Department intends to select countries must complete, as appropriate, either a separate-rate Background respondents based on U.S. Customs and application or certification, as described Border Protection (CBP) data for U.S. The Department has received timely below. For these administrative reviews, requests, in accordance with 19 CFR imports during the period of review in order to demonstrate separate-rate 351.213(b) (2007), for administrative (POR). We intend to release the CBP eligibility, the Department requires reviews of various antidumping and data under Administrative Protective entities for whom a review was countervailing duty orders and findings Order (APO) to all parties having an requested, that were assigned a separate with August anniversary dates. The APO within five days of publication of rate in the most recent segment of this Department also received timely this initiation notice and to make our proceeding in which they participated, requests to revoke in part the decision regarding respondent selection to certify that they continue to meet the antidumping duty order on Frozen Fish within 20 days of publication of this criteria for obtaining a separate rate. The Fillets from the Socialist Republic of Federal Register notice. The Separate Rate Certification form will be Vietnam and Certain Corrosion- Department invites comments regarding available on the Department’s Web site Resistant Carbon Steel Flat Products the CBP data and respondent selection at http://www.trade.gov/ia on the date of from the Republic of Korea with respect within 10 calendar days of publication publication of this Federal Register. In to one exporter. of this Federal Register notice. responding to the certification, please

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follow the ‘‘Instructions for Filing the Department requires a Separate Rate Application applies equally to NME- Certification’’ in the Separate Rate Status Application. The Separate Rate owned firms, wholly foreign-owned Certification. Separate Rate Status Application will be available on firms, and foreign sellers that purchase Certifications are due to the Department the Department’s Web site at http:// and export subject merchandise to the no later than 30 calendar days of www.trade.gov/ia on the date of United States. publication of this Federal Register publication of this Federal Register notice. The deadline and requirement notice. In responding to the Separate Initiation of Reviews for submitting a Certification applies Rate Status Application, refer to the In accordance with sections 19 CFR equally to NME-owned firms, wholly instructions contained in the 351.221(c)(1)(i), we are initiating foreign-owned firms, and foreign sellers application. Separate Rate Status who purchase and export subject Applications are due to the Department administrative reviews of the following merchandise to the United States. no later than 60 calendar days of antidumping and countervailing duty For entities that have not previously publication of this Federal Register orders and findings. We intend to issue been assigned a separate rate, to notice. The deadline and requirement the final results of these reviews not demonstrate eligibility for such, the for submitting a Separate Rate Status later than August 31, 2009.

Period to be reviewed

Antidumping Duty Proceedings Italy: Granular Polytetrafluoroethylene Resin, A–475–703 8/1/07–7/31/08 Solvay Solexis S.p.A. Malaysia: Polyethylene Retail Carrier Bags, A–557–813 ...... 8/1/07–7/31/08 Europlastics Malaysia Sdn. Bhd. and the Eplastics Procurement Center Sdn. Bhd. Republic of Korea: Corrosion-Resistant Carbon Steel Flat Products, A–580–816 ...... 8/1/07–7/31/08 Dongbu Steel Co., Ltd. Dongkuk Industries Co., Ltd. Haewon MSC Co., Ltd. Hyundai HYSCO. LG Chem, Ltd. Pohang Iron and Steel Co., Ltd./Pohang Coated Steel Co., Ltd. Union Steel Manufacturing Co., Ltd. Socialist Republic of Vietnam: Frozen Fish Fillets,1A–552–801 ...... 8/1/07–7/31/08 An Giang Fisheries Import and Export Joint Stock Company (aka Agifish or AnGiang Fisheries Import and Export). An Xuyen Co., Ltd. Anvifish Co., Ltd. Asia Commerce Fisheries Joint Stock Company (aka as Acomfish JSC). Ben Tre Forestry Aquaproduct Import-Export Company (aka as FAQUIMEX). Binh An Seafood Joint Stock Co. Da Nang Seaproducts Import-Export Corporation (aka Da Nang or Seaprodex Danang). East Sea Seafoods Joint Venture Co., Ltd. Hiep Thanh Seafood Joint Stock Co. Hung Vuong Corporation. Nam Viet Company Limited (aka NAVICO). Phuong Nam Co., Ltd. QVD Food Company, Ltd. QVD Dong Thap Food Co., Ltd. Southern Fishery Industries Company, Ltd. (aka South Vina). Thien Ma Seafood Co., Ltd. Thuan Hung Co., Ltd. (aka THUFICO). Vinh Hoan Corporation. Vinh Hoan Company, Ltd. Vinh Quang Fisheries Corporation. Thailand: Polyethylene Retail Carrier Bags, A–549–821 ...... 8/1/07–7/31/08 C.P. Packaging Co., Ltd. C.P. Poly-Industry Co. Ltd. Master Packaging Co., Ltd. Naraipak Co., Ltd. Nari Packaging (Thailand) Ltd. Poly Plast (Thailand) Co., Ltd. Thai Plastic Bags Industries Co., Ltd. The People’s Republic of China: Floor-Standing Metal-Top Ironing Tables,2 A–570–888 ...... 8/1/07–7/31/08 Foshan Shunde Yongjian Housewares & Hardware Co., Ltd. Since Hardware (Guangzhou) Co., Ltd. The People’s Republic of China: Polyethylene Retail Carrier Bags,3 A–570–886 ...... 8/1/07–7/31/08 Rally Plastics Co., Ltd. Countervailing Duty Proceedings Republic of Korea: Corrosion-Resistant Carbon Steel Flat Products, C–580–818 ...... 1/1/07–12/31/07 Dongbu Steel Co., Ltd. Hyundai HYSCO. Pohang Iron & Steel Co., Ltd. Republic of Korea: Dynamic Random Access Memory Semiconductors, C–580–851 ...... 1/1/07–12/31/07 Hynix Semiconductor, Inc. Suspension Agreements None

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During any administrative review DEPARTMENT OF COMMERCE Anyone wishing to attend this covering all or part of a period falling meeting should submit name, e-mail between the first and second or third National Institute of Standards and address and phone number to Denise and fourth anniversary of the Technology Herbert ([email protected] or 301– publication of an antidumping duty 975–5607) no later than October 10, Visiting Committee on Advanced 2008. order under section 351.211 or a Technology determination under section FOR FURTHER INFORMATION CONTACT: 351.218(f)(4) to continue an order or AGENCY: National Institute of Standards Denise Herbert, Visiting Committee on suspended investigation (after sunset and Technology, Department of Advanced Technology, National review), the Secretary, if requested by a Commerce. Institute of Standards and Technology, domestic interested party within 30 ACTION: Notice of public meeting. Gaithersburg, Maryland 20899–1000, days of the date of publication of the telephone number (301) 975–2300. SUMMARY: Pursuant to the Federal notice of initiation of the review, will Advisory Committee Act, 5 U.S.C. app. Dated: September 23, 2008. determine, consistent with FAG Italia v. 2, notice is hereby given that the Patrick Gallagher, United States, 291 F.3d 806 (Fed Cir. Visiting Committee on Advanced Deputy Director. 2002), as appropriate, whether Technology (VCAT), National Institute [FR Doc. E8–22987 Filed 9–29–08; 8:45 am] antidumping duties have been absorbed of Standards and Technology (NIST), BILLING CODE 3510–13–P by an exporter or producer subject to the will meet Tuesday, October 28, 2008, review if the subject merchandise is from 8 a.m. to 5 p.m. and Wednesday, sold in the United States through an October 29, 2008, from 8:30 a.m. to DEPARTMENT OF COMMERCE importer that is affiliated with such 12:30 p.m. The Visiting Committee on exporter or producer. The request must Advanced Technology is composed of National Oceanic and Atmospheric include the name(s) of the exporter or fifteen members appointed by the Administration producer for which the inquiry is Director of NIST who are eminent in requested. such fields as business, research, new [Docket No. 080626787–81233–04] Interested parties must submit product development, engineering, labor, education, management RIN 0648–ZB96 applications for disclosure under consulting, environment, and administrative protective orders in Availability of Grant Funds for Fiscal international relations. Year 2009 accordance with 19 CFR 351.305. The purpose of this meeting is to These initiations and this notice are review and make recommendations AGENCY: National Oceanic and in accordance with section 751(a) of the regarding general policy for the Atmospheric Administration (NOAA), Tariff Act of 1930, as amended (19 Institute, its organization, its budget, Commerce. U.S.C. 1675(a)) and 19 CFR and its programs within the framework ACTION: Notice. 351.221(c)(1)(i). of applicable national policies as set forth by the President and the Congress. SUMMARY: The National Oceanic and Dated: September 24, 2008. The theme for the meeting is ‘‘NIST’s Atmospheric Administration (NOAA) Stephen J. Claeys, Roles in Innovation and NIST’s Strategic publishes this notice to add proposal Deputy Assistant Secretary for Import Plan.’’ The agenda will include an format requirements, place a limit on Administration. update on NIST, presentations on Safety proposed indirect costs, further clarify [FR Doc. E8–23088 Filed 9–29–08; 8:45 am] at NIST, a review of NIST’s roles in cost sharing requirements and change BILLING CODE 3510–DS–P innovation, a review of NIST’s external the full proposal submission deadline to relationships, and an overview of November 3, 2008 for the solicitation NIST’s Strategic Plan, followed by an ‘‘Saltonstall-Kennedy Grant Program,’’ update on the Biosciences Strategic in order to give the public more time to Plan, the status of the Nanotechnology respond to these new requirements. The Strategic Plan, and a presentation on the initial solicitation, which was originally NIST Facilities Strategic Plan. Guest announced in the Federal Register on speakers have been invited to address July 11, 2008, gave a proposal due date 1 If one of the above named companies does not the benefits and potential benefits of of October 1, 2008. qualify for a separate rate, all other exporters of frozen fish fillets from the Socialist Republic of selected NIST partnerships. Other DATES: Applications must be received Vietnam who have not qualified for a separate rate agenda items include laboratory tours by 5 p.m. Eastern Time on November 3, are deemed to be covered by this review as part of and a VCAT feedback session on draft 2008. Applications received after the the single Vietnam entity of which the named recommendations for the 2008 Annual deadline will be rejected/returned to the exporters are a part. Report. The agenda may change to sender without further consideration. 2 If one of the above named companies does not accommodate Committee business. The No facsimile or electronic mail qualify for a separate rate, all other exporters of final agenda will be posted on the NIST applications will be accepted. floor-standing metal-top ironing tables from the Web site at http://www.nist.gov/ ADDRESSES FOR SUBMITTING PROPOSALS: People’s Republic of China who have not qualified director/vcat/agenda.htm. for a separate rate are deemed to be covered by this Applications must be submitted through review as part of the single PRC entity of which the DATES: The meeting will convene on www.grants.gov, unless an applicant named exporters are a part. October 28, 2008, at 8 a.m. and will does not have Internet access. In that 3 If one of the above named companies does not adjourn on October 29, 2008, at 12:30 case, hard copies with original qualify for a separate rate, all other exporters of p.m. signatures may be sent to: Mr. Steve polyethylene retail carrier bags from the People’s ADDRESSES Republic of China who have not qualified for a : The meeting will be held in Aguzin, S-K Program Manager, NOAA/ separate rate are deemed to be covered by this Building 1, Room 1107, at the National NMFS (F/MB5), 1315 East-West review as part of the single PRC entity of which the Institute of Standards and Technology, Highway, Room 13134, Silver Spring, named exporters are a part. Boulder, Colorado 80305. MD 20910–3282.

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FOR FURTHER INFORMATION CONTACT: The 100 percent of the total proposed direct 1. Project goals and objectives. point of contact is: Steve Aguzin, S-K costs dollar amount in the application, Identify the specific priority listed Program Manager, NOAA/NMFS (F/ whichever is less. earlier in the solicitation to which the MB5), 1315 East-West Highway, Room Furthermore, the Federal share of the proposed project responds. Identify the 13134, Silver Spring, MD 20910–3282; indirect costs you propose may not problem/opportunity you intend to or by Phone at (301) 713–2358 ext. 215, exceed 25 percent of the total proposed address and describe its significance to or fax at (301) 713–1306, or via E-mail direct costs. If your application requests the fishing community. State what you at [email protected]. more than 25 percent of the total costs expect the project to accomplish. SUPPLEMENTARY INFORMATION: NOAA as Federal funds to cover indirect costs, If you are applying to continue a publishes this notice to add proposal the application will be returned to you project we previously funded under the format requirements, place a limit on and will not be considered for funding. S-K Program, describe in detail your proposed indirect costs, further clarify If you have an approved indirect cost progress to date and explain why you cost sharing requirements and change rate above 25 percent of the total need additional funding. We will the full proposal submission deadline to proposed direct cost, you may use the consider this information in evaluating November 3, 2008 for the solicitation amount above the 25–percent level up your current application. ‘‘Saltonstall-Kennedy Grant Program,’’ to the 100–percent level as part of the 2. Project impacts. Describe the announced in the Federal Register on non-Federal share. You must include a anticipated impacts of the project on the July 11, 2008 (73 FR 40052). The copy of the current, approved, fishing community in terms of reduced deadline for full submissions is changed negotiated indirect cost agreement with bycatch, increased product yield, or from October 1, 2008 to November 3, the Federal government with your other measurable benefits. Describe how 2008 in order to give the public more application. you will make the results of the project We will not consider fees or profits as time to respond to these new available to the public. allowable costs in your application. 3. Evaluation of project. Specify the requirements. All other requirements for The total costs of a project consist of criteria and procedures that you will use this solicitation remain the same. all allowable costs you incur, including to evaluate the relative success or failure Application And Submission the value of in-kind contributions, in of a project in achieving its objectives. Information accomplishing project objectives during 4. Need for government financial You must follow the instructions in the life of the project. A project begins assistance. Explain why you need this document in order to apply for a on the effective date of an award government financial assistance for the proposed work. List all other sources of grant or cooperative agreement under agreement between you and an funding you have or are seeking for the the Saltonstall-Kennedy Grant Program. authorized representative of the U.S. Government and ends on the date project. Your application must be complete and 5. Federal, state, and local must follow the format described here. specified in the award. Accordingly, we cannot reimburse you for time that you government activities and permits. List A. Cover Sheet expend or costs that you incur in any existing Federal, state, or local You must use Office of Management developing a project or preparing the government programs or activities that and Budget (OMB) Standard Form 424 application, or in any discussions or this project would affect, including and 424B as the cover sheet for each negotiations you may have with us prior activities requiring: certification under project. to the award. We will not accept such state Coastal Zone Management Plans; expenditures as part of your cost share. section 404 or section 10 permits issued B. Project Summary by the Corps of Engineers; experimental D. Narrative Project Description You must complete a Project fishing or other permits under FMPs; Summary for each project. You must list You must provide a narrative environmental impact statements to the specific priority to which the description of your project that may be meet the requirements of the National application responds. up to 25 pages long. All pages must be Environmental Policy Act; scientific single-spaced and should be composed permits under the ESA and/or the C. Project Budget in at least a 12–point font with one-inch Marine Mammal Protection Act; or You must submit a budget for each margins on 8 1/2 x 11 paper. The project Magnuson-Stevens Act EFH project and provide detailed cost description may not exceed 25 pages, consultation if the project may estimates showing total project costs. exclusive of the title page, project adversely affect areas identified as EFH. Indicate the breakdown of costs between synopsis, literature cited, budget Describe the relationship between the Federal and non-Federal shares, divided information, and resumes of project and these FMPs or activities, and into cash and in-kind contributions. To investigator. Any PDF or other list names and addresses of persons support the budget, describe briefly the attachments that are included in an providing this information. You can get basis for estimating the value of the cost electronic application must meet the information on these activities from the sharing derived from in-kind above format requirement when printed NMFS Regions (see Section I.F., contributions. Specify estimates of the out. Failure to follow the requirements Application ADDRESSES). If we select direct costs in the categories listed on will result in the rejection of the your project for funding, you are the Project Budget form. application and subsequent return. responsible for complying with all You may also include in the budget The narrative should demonstrate applicable requirements. an amount for indirect costs if you have your knowledge of the need for the 6. Project statement of work. The an established indirect cost rate with the project, and show how your proposal statement of work is an action plan of Federal government. For this builds upon any past and current work activities you will conduct during the solicitation, the total dollar amount of in the subject area, as well as relevant period of the project. You must prepare the indirect costs you propose in your work in related fields. You should not a detailed narrative, fully describing the application must not exceed the indirect assume that we already know the work you will perform to achieve the cost rate negotiated and approved by a relative merits of the project you project goals and objectives. The cognizant Federal agency prior to the describe. You must describe your narrative should respond to the proposed effective date of the award, or project as follows: following questions:

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(a) What is the project design? What application, indicate the process that the value is equivalent to the cost for specific work, activities, procedures, you used for selection. you to obtain such services or property statistical design, or analytical methods if they had not been donated. You must E. Supporting Documentation will you undertake? document the in-kind services or (b) Who will be responsible for You should include any relevant property you will use to fulfill your cost carrying out the various activities? documents and additional information share. (Highlight work that will be (i.e., maps, background documents) that If we decide to fund your application, subcontracted and provisions for will help us to understand the project we will require you to account for the competitive subcontracting.) and the problem/opportunity you seek total amount of cost share included in (c) What are the major products and to address. the award document. how will project results be disseminated? Describe products of the Cost Sharing Requirements Limitation of Liability project, such as a manual, video, We are requiring cost sharing in order Funding for programs listed in this technique, or piece of equipment. to leverage the limited funds available notice is contingent upon the Indicate how project results will be for this program and to encourage availability of Fiscal Year 2009 disseminated to potential users. partnerships among government, appropriations. Applicants are hereby (d) What are the project milestones? industry, and academia to address the given notice that funds have not yet List milestones, describing the specific needs of fishing communities. You must been appropriated for the programs activities and associated time lines to provide a minimum cost share of 10 listed in this notice. In no event will conduct the scope of work. Describe the percent of total project costs, but your NOAA or the Department of Commerce time lines in increments (e.g., month 1, cost share must not exceed 50 percent be responsible for proposal preparation month 2), rather than by specific dates. of total costs. costs if these programs fail to receive Identify the individual(s) responsible for You may find this formula useful: funding or are cancelled because of the various specific activities. 1. Total Project Cost (Federal and non- other agency priorities. Publication of This information is critical for us to Federal cost share combined) x .9 = this announcement does not oblige conduct a thorough review of your Maximum Federal Share. NOAA to award any specific project or application, so we encourage you to 2. Total Cost - Federal share = to obligate any available funds. provide sufficient detail. Applicant Share. 7. Participation by persons or groups For example, if the proposed total Universal Identifier other than the applicant. Describe how budget for your project is $100,000, the Applicants should be aware that, they government and non-government maximum Federal funding you can are required to provide a Dun and entities, particularly members of fishing apply for is $90,000 ($100,000 x .9). Bradstreet Data Universal Numbering communities, will participate in the Your cost share in this case would be System (DUNS) number during the project, and the nature of their $10,000 ($100,000 - $90,000). application process. See the October 30, participation. We will consider the For a total project cost of $100,000, 2002 Federal Register, (67 FR 66177) for degree of participation by members of you must contribute at least $10,000, additional information. Organizations the fishing community in determining but no more than $50,000 (10–50 can receive a DUNS number at no cost which applications to fund. percent of total project cost). by calling the dedicated toll-free DUNS 8. Project management. Describe how Accordingly, the Federal share you Number request line at 1–866–705–5711 the project will be organized and apply for would range from $50,000 to or via the internet http:// managed. Identify the principal $90,000. If your application does not www.dunandbradstreet.com. investigator and other participants in comply with these cost share the project. If you do not identify the requirements, we will return it to you National Environmental Policy Act principal investigator, we will return and will not consider it for funding. (NEPA) your application without further The funds you provide as cost sharing NOAA must analyze the potential consideration. Include copies of any may include funds from private sources environmental impacts, as required by agreements between you and the or from state or local governments, or the National Environmental Policy Act participants describing the specific tasks the value of in-kind contributions. You (NEPA), for applicant projects or to be performed. Provide a statement no may not use Federal funds to meet the proposals which are seeking NOAA more than two pages long of the cost sharing requirement except as federal funding opportunities. Detailed qualifications and experience (e.g., provided by Federal statute. In-kind information on NOAA compliance with resume or curriculum vitae) of the contributions are non-cash NEPA can be found at the following principal investigator(s) and any contributions provided to you by non- NOAA NEPA Web site: http:// consultants and/or subcontractors, and Federal third parties. In-kind www.nepa.noaa.gov/, including our indicate their level of involvement in contributions may include, but are not NOAA Administrative Order 216–6 for the project. If any portion of the project limited to, personal services NEPA, http://www.nepa.noaa.gov/ will be conducted through consultants volunteered to perform tasks in the NAO216--6--TOC.pdf, NEPA and/or subcontracts, you must follow project, and permission to use, at no Questionnaire, http:// procurement guidance in 15 CFR part cost, real or personal property owned by www.nepa.noaa.gov/questionnaire.pdf, 24, ‘‘Grants and Cooperative others. and the Council on Environmental Agreements to State and Local We will determine the Quality implementation regulations, Governments,’’ and 15 CFR part 14, appropriateness of all cost sharing http://ceq.hss.doe.gov/nepa/regs/ceq/ ‘‘Uniform Administrative Requirements proposals, including the valuation of in- toclceq.htm. Consequently, as part of for Grants and Agreements with kind contributions, on the basis of an applicant’s package, and under their Institutions of Higher Education, guidance provided in 15 CFR parts 14 description of their program activities, Hospitals, Other Non-Profit, and and 24. In general, the value of in-kind applicants are required to provide Commercial Organizations.’’ If you services or property you use to fulfill detailed information on the activities to select a consultant and/or a your cost share will be the fair market be conducted, locations, sites, species subcontractor prior to submitting an value of the services or property. Thus, and habitat to be affected, possible

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construction activities, and any Administrative Procedure Act/ by telephoning the contact listed here environmental concerns that may exist Regulatory Flexibility Act (FOR FURTHER INFORMATION CONTACT) or (e.g., the use and disposal of hazardous Prior notice and an opportunity for online at: http://www.nmfs.noaa.gov/pr/ or toxic chemicals, introduction of non- public comment are not required by the permits/incidental.htm. Documents indigenous species, impacts to Administrative Procedure Act or any cited in this notice may be viewed, by endangered and threatened species, other law for rules concerning public appointment, during regular business aquaculture projects, and impacts to property, loans, grants, benefits, and hours, at the aforementioned address. coral reef systems). In addition to contracts (5 U.S.C. 553(a)(2)). Because FOR FURTHER INFORMATION CONTACT: providing specific information that will notice and opportunity for comment are Howard Goldstein or Jaclyn Daly, Office serve as the basis for any required not required pursuant to 5 U.S.C. 553 or of Protected Resources, NMFS, (301) impact analyses, applicants may also be any other law, the analytical 713–2289. requested to assist NOAA in drafting of requirements of the Regulatory SUPPLEMENTARY INFORMATION: Flexibility Act (5 U.S.C. 601 et seq.) are an environmental assessment, if NOAA Background determines an assessment is required. inapplicable. Therefore, a regulatory Applicants will also be required to flexibility analysis has not been Sections 101(a)(5)(A) and (D) of the cooperate with NOAA in identifying prepared. MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, feasible measures to reduce or avoid any Dated: September 24, 2008. upon request, the incidental, but not identified adverse environmental James W. Balsiger, intentional taking of marine mammals impacts of their proposal. The failure to Acting Assistant Administrator for Fisheries, National Marine Fisheries Service. by U.S. citizens who engage in a do so shall be grounds for not selecting military readiness activity if certain [FR Doc. E8–22970 Filed 9–29–08; 8:45 am] an application. In some cases if findings are made and regulations are additional information is required after BILLING CODE 3510–PJ–S issued or, if the taking is limited to an application is selected, funds can be harassment, notice of a proposed withheld by the Grants Officer under a DEPARTMENT OF COMMERCE authorization is provided to the public special award condition requiring the for review. recipient to submit additional National Oceanic and Atmospheric Authorization for incidental takings environmental compliance information Administration will be granted if NMFS finds that the sufficient to enable NOAA to make an taking will have a negligible impact on assessment on any impacts that a project RIN 0648–XB13 the species or stock(s), will not have an may have on the environment. The Takes of Marine Mammals Incidental to unmitigable adverse impact on the Department of Commerce Pre-Award Specified Activities; Naval Explosive availability of the species or stock(s) for Notification Requirements for Grants Ordnance Disposal School Training certain subsistence uses, and if the and Cooperative Agreements contained Operations at Eglin Air Force Base, permissible methods of taking and in the Federal Register notice of Florida requirements pertaining to the February 11, 2008 (73 FR 7696) are mitigation, monitoring and reporting of applicable to this solicitation. AGENCY: National Marine Fisheries such taking are set forth. Service (NMFS), National Oceanic and NMFS has defined ‘‘negligible Paperwork Reduction Act Atmospheric Administration (NOAA), impact’’ in 50 CFR 216.103 as: Commerce. This document contains collection-of- an impact resulting from the specified ACTION: Notice; issuance of an information requirements subject to the activity that cannot be reasonably expected incidental harassment authorization. to, and is not reasonably likely to, adversely Paperwork Reduction Act (PRA). The affect the species or stock through effects on use of Standard Forms 424, 424A, 424B, SUMMARY: In accordance with the annual rates of recruitment or survival. 424C, 424D, and SF-LLL has been Marine Mammal Protection Act (MMPA) regulations, notification is Subsection 101(a)(5)(D) of the MMPA approved by OMB under the respective established an expedited process by control numbers 4040–0004, 0348–0044, hereby given that NMFS has issued an Incidental Harassment Authorization which citizens of the United States can 4040–0007, 0348–0041, 4040–0009, and apply for an authorization to 0348–0046. Notwithstanding any other (IHA) to Eglin Air Force Base (EAFB) for the take of marine mammals, by Level incidentally take marine mammals by provision of law, no person is required harassment. With respect to military to respond to, nor shall any person be B harassment only, incidental to Naval Explosive Ordnance Disposal School readiness activities, the MMPA defines subject to a penalty for failure to comply ‘‘harassment’’ as: with, a collection of information subject (NEODS) training operations at EAFB, Florida. (i) any act that injures or has the significant to the requirements of the PRA unless potential to injure a marine mammal or that collection of information displays a DATES: Effective from October 5, 2008, marine mammal stock in the wild [Level A currently valid OMB control number. through October 4, 2009. Harassment]; or ADDRESSES: A copy of the IHA and the (ii) any act that disturbs or is likely to Executive Order 12866 application are available by writing to disturb a marine mammal or marine mammal Michael Payne, Chief, Permits, stock in the wild by causing disruption of This notice has been determined to be natural behavioral patterns, including, but not significant for purposes of Executive Conservation, and Education Division, Office of Protected Resources, National not limited to, migration, surfacing, nursing, Order 12866. Marine Fisheries Service, 1315 East- breeding, feeding, or sheltering, to a point where such behavioral patterns are Executive Order 13132 (Federalism) West Highway, Silver Spring, MD abandoned or significantly altered [Level B 20910–3225, or by telephoning the Harassment]. It has been determined that this notice contact listed here. A copy of the does not contain policies with application containing a list of Section 101(a)(5)(D) establishes a 30– Federalism implications as that term is references used in this document may day public notice and comment period defined in Executive Order 13132. be obtained by writing to this address, on any proposed IHA. Within 45 days

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of the close of the comment period, Each of the six training classes would Cetacean abundance estimates for the NMFS must either issue or deny include one or two ‘‘Live Demolition project area are derived from GulfCet II issuance of the authorization. Days.’’ During each set of Live aerial surveys conducted from 1996 to Demolition Days, five inert mines would 1998 over a 70,470 km2 area, including Summary of Request be placed in a compact area on the sea nearly the entire continental shelf On May 13, 2008, NMFS received an floor in approximately 60 ft (18.3 m) of region of the EGTTR, which extends application from EAFB requesting re- water. Divers would locate the mines by approximately 9 nm (16.7 km) from issuance of their IHA for the taking, by hand-held sonars. The AN/PQS–2A shore. The two marine mammal species Level B harassment only, of Atlantic hand-held acoustic locator has a sound that may be affected by these activities, bottlenose dolphins (Tursiops pressure level (SPL) of 178.5 re 1 whose status and distribution were truncatus) and Atlantic spotted µPascal @ 1 meter and the Dukane discussed in the proposed IHA (73 FR dolphins (Stenella frontalis) incidental Underwater Acoustic Locator has a SPL 46592, August 11, 2008), are the to NEODS training operations and of 157–160.5 re 1 µPascal @ 1 meter. bottlenose dolphin (Tursiops truncatus) testing at Eglin Gulf Test and Training Because output from these hand-held and the Atlantic spotted dolphin Range (EGTTR) at EAFB, Florida, in the sound sources would attenuate to below (Stenella frontalis). Although Atlantic northern Gulf of Mexico (GOM). Each of any current threshold for protected spotted dolphins do not normally up to six missions per year would species within approximately 10–15 m, inhabit nearshore waters, NMFS has include up to five live detonations (up noise impacts are not anticipated and included them in the analysis due to the to 30 charges per year) of approximately are not addressed further in this potential for occurrence and to ensure 5–lb (2.3–kg) net explosive weight analysis. conservative mitigation measures are charges to occur in approximately 60–ft Five charges packed with five lbs (2.3 applied. Further descriptions of the (18.3–m) deep water from one to three kg) of C–4 explosive material will be set biology and local distribution of these nm (1.9 to 5.6 km) offshore. Because this up adjacent to each of the mines. No species can be found in the application activity will be a multi-year activity, more than five charges will be detonated (see ADDRESSES); other sources such as NMFS also plans to develop proposed over the 2–day period. Detonation times Wursig et al. (2000), and the NMFS regulations for NEODS training will begin no earlier than 2 hours after Stock Assessments, can be viewed at: operations at EAFB. EAFB was granted sunrise and end no later than 2 hours http://www.NMFS.noaa.gov/pr/PR2/ l l an IHA in 2005, 2006, and 2007 for this before dusk, and charges utilized within Stock Assessment Program/ activity. No missions have occurred to the same hour period will have a sars.html. date. maximum separation time of 20 Potential Effects of Activities on Marine Because the relative low cost and ease minutes. Mine shapes and debris will be Mammals of use of mines lends itself to use by an recovered and removed from the water The primary potential impact to array of transnational, rogue, and when training is completed. A more Atlantic bottlenose and the Atlantic subnational adversaries that now pose detailed description of the work is spotted dolphins occurring in the the most immediate threat to American contained in the initial Federal Register EGTTR from the planned detonations is interests and because NEODS supports notice (73 FR 46592, August 11, 2008) Level B harassment from noise and the Naval Fleet by providing training to and application, which is available energy explosions. In the absence of any personnel from all four armed services, upon request (see ADDRESSES). mitigation or monitoring measures, civil officials, and military students Marine Mammals and Habitat Affected there is a very small chance that a from over 70 countries, this activity by the Activity marine mammal could be injured or constitutes a ‘‘military readiness killed when exposed to the energy activity,’’ as defined in Section 315(f) of Marine mammal species that generated from an explosive force on the Public Law 107–314 (16 U.S.C. 703 potentially occur within the EGTTR sea floor. However, NMFS believes the note). include several species of cetaceans and required mitigation measures will the West Indian manatee (Trichechus Specified Activities preclude this possibility in the case of manatus). While a few manatees may this particular activity. Analysis of The mission of NEODS is to train migrate as far north from southern NEODS noise impacts to cetaceans was personnel to detect, recover, identify, Florida (where they are generally based on criteria and thresholds initially evaluate, render safe, and dispose of confined in the winter) to Louisiana in presented in U.S. Navy Environmental unexploded ordnance (UXO) that the summer, they primarily inhabit Impact Statements for ship shock trials constitutes a threat to people, material, coastal and inshore waters, rarely of the SEAWOLF submarine and the installations, ships, aircraft, and venture offshore, and sightings of WINSTON CHURCHILL vessel and operations. The NEODS plans to utilize manatees in the EGTTR are rare. Dwarf subsequently adopted by NMFS. three areas within the EGTTR, (Kogia sima) and pygmy sperm whales Non-lethal injurious impacts (Level A consisting of approximately 86,000 mi2 (Kogia breviceps), while present in the Harassment) are defined in EAFB’s (222,739 km2) within the GOM and the Gulf of Mexico, are pelagic species and application and this document as airspace above, for Mine not usually found close to shore. tympanic membrane (TM) rupture and Countermeasures (MCM) detonations, NEODS missions are conducted one to the onset of slight lung injury. The which involve mine-hunting and mine- three nm (5.6 km) from shore; therefore, threshold for Level A Harassment clearance operations. The detonation of impact to manatees, dwarf and pygmy corresponds to a 50–percent rate of TM small, live explosive charges disables sperm whales are not likely to occur rupture, which can be stated in terms of the function of the mines, which are because their potential for being found an energy flux density (EFD) value of inert for training purposes. The training near the project site is remote and not 205 dB re 1 µPa2 s. TM rupture is well- would occur approximately one to three discussed further in this analysis. correlated with permanent hearing nautical miles (nm) (1.9 to 5.6 km) Accordingly, EAFB did not seek an impairment (Ketten, 1998) indicates a offshore of Santa Rosa Island (SRI) six incidental take authorization from the 30–percent incidence of permanent times annually, at varying times within U.S. Fish and Wildlife Service, which threshold shift (PTS) at the same the year. has jurisdiction over manatees. threshold). The zone of influence (ZOI)

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(farthest distance from the source at and animals would have to be Numbers of Marine Mammals which an animal is exposed to the EFD significantly closer than that for the Estimated to be Harassed level referred to) for the Level A potential for serious injury or death to Estimates of the potential number of Harassment threshold is 52 m (172 ft). occur. Marine Mammal Observers Atlantic bottlenose dolphins and Level B (non-injurious) Harassment (MMOs) will be monitoring a 460–m Atlantic spotted dolphins to be harassed includes temporary (auditory) threshold radius area for the entire 15 minutes by the training were calculated using shift (TTS), a slight, recoverable loss of leading up to the detonation and the the number of distinct firing or test hearing sensitivity. One criterion used operation will be postponed if animals events (maximum 30 per year), the for TTS is 182 dB re 1 µPa2 s maximum are seen within the 230–dB ZOI or if calculated ZOI area, and the density of EFD level in any 1/3–octave band above large schools of fish, which could attract animals that potentially occur in the 100 Hz for toothed whales (e.g., the delphinids, are seen within the ZOI. ZOI. The take estimates provided here dolphins). The ZOI for this threshold is 230 m (754 ft). A second criterion, 23 Comment 2: The Commission do not include mitigation measures, psi, has recently been established by recommends that NEODS training which are expected to further minimize NMFS to provide a more conservative operations be suspended immediately if impacts to protected species and make range for TTS when the explosive or a seriously injured or dead marine injury or death highly unlikely. animal approaches the sea surface, in mammal is found in the vicinity of the Using a high density estimate for each which case explosive energy is reduced, operations and the death or injury could species of dolphin, the ZOI of charge but the peak pressure is not. The ZOI for be attributable to the NEODS activities. employed and the total of events per 23 psi is 222 m (728 ft). NMFS will Further, the Commission recommends year, an annual estimate for the potential number of animals exposed to apply the more conservative of these that any suspension should remain in noise was derived. Without any two. place until NMFS has (1) reviewed the mitigation, up to one cetacean is Level B Harassment also includes situation and determined that further estimated to be within the Level A behavioral modifications resulting from deaths or serious injuries are unlikely to Harassment 205 dB ZOI. Because in- repeated noise exposures (below TTS) to occur or (2) issued regulations the same animals (usually resident) over place mitigations would clear the area of authorizing such takes under section any marine mammals before detonation, a relatively short period of time. 101(a)(5)(A) of the MMPA. Threshold criteria for this particular it is anticipated that no marine mammal type of harassment are currently still Response: NMFS concurs with the takes by mortality or injury (Level A under debate. One recommendation is a Commission’s recommendation and will Harassment) would result. No Level A level of 6 dB below TTS (see 69 FR include this provision in the IHA. Harassment or mortality is authorized 21816, April 22, 2004), which would be Comment 3: The Commission also by NMFS during NEODS activities. 176 dB re 1 µPa2 s. However, due to the resubmitted the identical comments it For Level B Harassment, two separate infrequency of the detonations, the submitted on the 2005 and 2006 NEODS criteria were established, one expressed µ 2 potential variability in target locations, IHA. In summary, the Commission in dB re 1 Pa s maximum EFD level and the continuous movement of marine recommends NMFS should further in any 1/3–octave band above 100 Hz, mammals off the northern Gulf, NMFS explain its rationale for determining that and one expressed in psi. The estimated believes that behavioral modification the takings will be by harassment only numbers of Atlantic bottlenose dolphins from repeated exposures to the same and that the potential for lethal injuries and Atlantic spotted dolphins animal is highly unlikely. is sufficiently remote to warrant the potentially taken through exposure to 182 dB are 4 and 3 individuals, issuance of an authorization under Comments and Responses respectively. The estimated numbers 101(a)(5)(d) of the MMPA. In addition, On July 12, 2007, NMFS published in potentially taken through exposure to 23 the Commission questioned NMFS’ the Federal Register a notice of a psi are also 4 and 3 individuals, assessment that TTS constitutes no proposed IHA for EAFB’s request to take respectively. This represents less than more than Level B harassment and marine mammals incidental to NEODS 0.0002 percent for each species and NMFS should further explain and training exercises in the GOM, and perhaps 1–2 percent of an inshore stock justify the dual criteria established for requested comments regarding this of Atlantic bottlenose dolphins if one request (See 72 FR 38061). During the determining non-lethal injury; the ‘‘non- individual for that stock is harassed. 30–day public comment period, NMFS injurious behavioral response’’ While it is highly unlikely that the received one public comment and threshold; and the 23 psi criterion for offshore bottlenose dolphin stock would comments from the Marine Mammal estimating TTS threshold. be affected by this action due their Commission (Commission). Response: NMFS stated the distribution, it not possible to Comment 1: The Commission Commission’s concerns and addressed distinguish from inshore stocks of this recommends NMFS grant the requested them in the Federal Register notice species. authorizations provided that Eglin AFB announcing the issuance of the 2005 Possible Effects of Activities on Marine conduct all practicable monitoring and and 2006 IHA’s (70 FR 51341, August Mammal Habitat mitigation measures to afford the 30, 2005; 71 FR 60693, October 16, potentially affected marine mammal 2006), and they may be referenced there. NMFS anticipates no loss or species adequate protection from modification to the habitat used by Comment 4: A member of the public serious and lethal injury. Atlantic bottlenose dolphins or Atlantic Response: NMFS believes that the opposes the issuance of this permit spotted dolphins in the EGTTR. The IHA includes all practicable monitoring based on the assumption it would allow primary source of marine mammal and mitigation measures to avoid for the killing of marine mammals. habitat impact resulting from the serious or lethal injury of marine Response: NMFS does not believe that NEODS missions is noise, which is mammals, and we believe that they will the authorized activities will result in intermittent (maximum 30 times per be effective. The radius around the site the death of any marine mammals, nor year) and of limited duration. The of the explosion where the animals does this IHA authorize any marine effects of debris (which will be could potentially be injured is 52 m, mammal injury or mortality. recovered following test activities),

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ordnance, fuel, and chemical residues (1) Any marine mammal is visually detonations as well as pre- and post- were analyzed in the NEODS Biological detected within the Level B Harassment mission monitoring observations, will Assessment and NMFS’ Environmental ZOI (230 m (755 ft)). The delay would be submitted to the Southeast Regional Assessment. These documents conclude continue until the animal that caused Office (NMFS) and to the Division of that marine mammal habitat would not the postponement is confirmed to be Permits, Conservation, and Education, be affected from the specified activity. outside the ZOI (visually observed Office of Protected Resources (NMFS) EAFB initiated consultation with swimming out of the range). within 90 days after the completion of NMFS Southeast Region (SER) on July (2) Any marine mammal is detected in the last training session conducted 27, 2007 for effects regarding Essential the Level B Harassment ZOI and under this IHA. Fish Habitat (EFH). On August 6, 2007, subsequently is not seen again within 15 NMFS SER concurred with EAFB’s minutes. The mission would not Endangered Species Act determination that NEODS activities are continue until the last verified location In a Biological Opinion issued on not likely to adversely affect EFH. is outside of the ZOI and the animal is October 25, 2004, NMFS concluded that NMFS Office of Protected Resources moving away from the mission area. the NEODS training missions and their adopts the SERs determinations and In the event of a postponement, pre- associated actions are not likely to accordingly finds that EFH is not likely mission monitoring would continue as jeopardize the continued existence of to be adversely affected from NEODS long as weather and daylight hours threatened or endangered species under activities. allow. If a charge fails to explode, the jurisdiction of NMFS or destroy or mitigation measures would continue adversely modify critical habitat that Mitigation and Monitoring while operations personnel attempt to has been designated for those species. Mitigation will consist primarily of recognize and solve the problem (i.e., NMFS has issued an incidental take surveying and taking action to avoid detonate the charge). statement (ITS) for NEODS for sea detonating charges when protected Post-mission monitoring is designed turtles pursuant to section 7 of the species are within the Level A to determine the effectiveness of pre- Endangered Species Act. The ITS harassment ZOI. A trained, NMFS- mission mitigation by reporting any contains reasonable and prudent approved observer will be staged from sightings of dead or injured marine measures with implementing terms and the highest point possible on a support mammals. Post-detonation monitoring, conditions to minimize the effects of ship and have proper lines of concentrating on the area down current this take. This IHA action is within the communication to the Officer in of the test site, would commence scope of the previously analyzed action Tactical Command. The survey area will immediately following each detonation and does not change the action in a be 460 m (1,509 ft) in every direction and continue for at least two hours after manner that was not considered from the target, which is twice the the last detonation. The monitoring previously. radius of the ZOI for Level B team would document and report to the Harassment (230 m (755 ft)). To ensure appropriate marine animal stranding National Environmental Policy Act visibility of marine mammals to network any marine mammals killed or In 2005, NMFS prepared an observers, NEODS missions will be injured during the test and, if Environmental Assessment (EA) on the delayed if whitecaps cover more than 50 practicable, recover and examine any Issuance of Authorizations to Take percent of the surface or if the waves are dead animals. The species, number, Marine Mammals, by Harassment, greater than 0.91 m (3 feet) (Beaufort Sea location, and behavior of any animals Incidental to Naval Explosive Ordnance State 4). observed by the teams would be Disposal School Training Operations at Pre-mission monitoring will be used documented and reported to the Officer Eglin Air Force Base, Florida and to evaluate the test site for in Tactical Command. subsequently issued a Finding of No environmental suitability of the Additionally, in the unlikely event Significant Impact (FONSI). In 2007, mission. Visual surveys will be that an injured (Level A Harassment), NMFS issued a FONSI based on a conducted two hours, one hour, and the seriously injured, or dead marine supplemental EA (SEA) to address new entire 15 minutes prior to the mission mammal is found in the vicinity of the available information regarding the to verify that the ZOI (230 m (755 ft)) operations and the death or injury could effects of the described activities to is free of visually detectable marine be attributable to the NEODS activities, Essential Fish Habitat and other mammals, and that the weather is training operations will be suspended operations EAFB is conducting that may adequate to support visual surveys. The and NMFS contacted immediately. This have cumulative impacts to the physical observer will plot and record sightings, suspension would remain in place until and biological environment. This IHA bearing, and time for all marine NMFS has (1) reviewed the situation action is within the scope of the mammals detected, which would allow and determined that further injury or previously analyzed action and does not the observer to determine if the animal death is unlikely to occur or (2) issued change the action in a manner that was is likely to enter the test area during regulations to authorize such takes not considered previously. Therefore, detonation. If a marine mammal appears under section 101(a)(5)(A) of the preparation of an EIS on this action is likely to enter any ZOI during MMPA. not required by section 102(2) of the detonation, if large schools of fish are NEPA or its implementing regulations. present, or if the weather is inadequate Reporting to support monitoring, the observer will The Air Force will notify NMFS two Conclusions declare the range fouled and the tactical weeks prior to initiation of each training NMFS has issued an IHA for a one- officer will implement a hold until session. Any takes of marine mammals year period to the EAFB for the NEODS monitoring indicates that the ZOI is and other than those authorized by the IHA, training missions to take place within will remain clear of detectable marine as well as any injuries or deaths of the EGTTR, Florida. The issuance of this mammals. marine mammals, will be reported to IHA is contingent upon adherence to the Monitoring of the survey area will the Southeast Regional Administrator, previously mentioned mitigation, continue throughout the mission until NMFS, within 24 hours. A summary of monitoring, and reporting requirements. the last detonation is complete. The mission observations and test results, NMFS has determined that the impact mission would be postponed if: including dates and times of of the NEODS training, which entails up

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to six missions per year, including up to SUMMARY: NMFS announces a meeting, Allison Routt at (562) 980–4019 or (562) five live detonations per mission of via teleconference, of the General 980–4030 by October 9, 2008. approximately 5–lb (2.3 kg) net Advisory Committee to the U.S. Section Dated: September 25, 2008. explosive weight charges to occur in to the Inter-American Tropical Tuna Emily H. Menashes, approximately 60–ft (18 m) deep water Commission (IATTC) in October 2008. Acting Director, Office of Sustainable from one to three nm offshore, may Meeting topics are provided under the Fisheries, National Marine Fisheries Service. result in the Level B Harassment of a SUPPLEMENTARY INFORMATION section of [FR Doc. E8–22963 Filed 9–29–08; 8:45 am] few Atlantic bottlenose dolphins and this notice. BILLING CODE 3510–22–S Atlantic spotted dolphins; this would DATES: The meeting will be held on have a negligible impact on these October 16, 2008, from 10 a.m. to 12 affected marine mammals species and p.m. (or until business is concluded), DEPARTMENT OF COMMERCE stocks. Dwarf and pygmy sperm whales Pacific time. and manatees are unlikely to be found ADDRESSES: The meeting will be held National Oceanic and Atmospheric in the area and, therefore, are unlikely via teleconference. Please notify Allison Administration to be affected. While behavioral Routt prior to October 9, 2008, to modifications may be made by Atlantic RIN: 0648–XK75 receive dial in information and of your bottlenose dolphins and Atlantic intent to participate in this Mid-Atlantic Fishery Management spotted dolphins to avoid the resultant teleconference. Council; Public Meetings acoustic stimuli, there is virtually no possibility of injury or mortality when FOR FURTHER INFORMATION CONTACT: AGENCY: National Marine Fisheries the potential density of dolphins in the Allison Routt at (562) 980–4019 or (562) Service (NMFS), National Oceanic and area and extent of mitigation and 980–4030. Atmospheric Administration (NOAA), monitoring are taken into consideration. SUPPLEMENTARY INFORMATION: In Commerce. The effects of the NEODS training are accordance with the Tuna Conventions ACTION: Notice of public meetings. expected to be limited to short-term and Act, as amended, the Department of SUMMARY: localized TTS-related behavioral State has appointed a General Advisory The Mid-Atlantic Fishery changes. No subsistence users are Committee to the U.S. Section to the Management Council (Council), its located within the geographic area of IATTC. The U.S. Section consists of the Bycatch/Limited Access Committee; its this project. four U.S. Commissioners to the IATTC Ecosystems Committee; its Research Set- No rookeries, mating grounds, areas of and the representative of the Deputy Aside Committee; its Squid, Mackerel, concentrated feeding, or other areas of Assistant Secretary of State for Oceans Butterfish Committee; its Law special significance for marine and Fisheries. The Advisory Committee Enforcement Committee; and, its mammals occur within or near the supports the work of the U.S. Section in Executive Committee will hold public NEODS test sites. a solely advisory capacity with respect meetings. Authorization to U.S. participation in the work of the DATES: The meetings will be held on IATTC, with particular reference to the Tuesday, October 14, 2008 through As a result of these determinations, development of policies and negotiating Thursday, October 16, 2008. See NMFS proposes to issue an IHA to the positions pursued at meetings of the SUPPLEMENTARY INFORMATION for specific Air Force for NEODS training operations IATTC. NMFS, Southwest Region, dates and times. at EAFB, Florida, provided the administers the Advisory Committee in ADDRESSES: The meetings will be held at previously mentioned mitigation, cooperation with the Department of the Ramada Plaza & Resort, 1701 South monitoring, and reporting requirements State. Virginia Dare Trail, Kill Devil Hills, NC are incorporated. Meeting Topics 27948; telephone: (252) 441–2151. Dated: September 19, 2008. Council address: Mid-Atlantic Fishery Helen M. Golde, The General Advisory Committee will Management Council, 300 S. New St., Deputy Director, Office of Protected meet to receive and discuss information Room 2115, Dover, DE 19904; Resources, National Marine Fisheries Service. on: (1) 2008 IATTC activities, (2) telephone: (302) 674–2331. [FR Doc. E8–22817 Filed 9–29–08; 8:45 am] upcoming meetings of the IATTC, FOR FURTHER INFORMATION CONTACT: BILLING CODE 3510–22–S including issues such as: conservation Daniel T. Furlong, Executive Director, and management measures for yellowfin Mid-Atlantic Fishery Management and bigeye tuna for 2009 and future Council; telephone: (302) 674–2331 ext. DEPARTMENT OF COMMERCE years, measures to be taken in the 19. absence of conservation and SUPPLEMENTARY INFORMATION: National Oceanic and Atmospheric management measures, management of Administration fishing capacity, and other issues, (4) Tuesday, October 14, 2008 IATTC cooperation with other regional 9 a.m. until 11 a.m. - The Bycatch/ RIN 0648–XK74 fishery management organizations, (5) Limited Access Committee will meet. implementing legislation for the 11 a.m. until 12 p.m. - The General Advisory Committee to the Antigua Convention, including the U.S. Section to the Inter-American Ecosystems Committee will meet. provisions for a General Advisory 1 p.m. until 3 p.m. - The Research Set- Tropical Tuna Commission; Meeting Committee, and (6) administrative Announcement Aside Committee will meet. matters pertaining to the General 3 p.m. until 5 p.m. - The Squid, AGENCY: National Marine Fisheries Advisory Committee. Mackerel, and Butterfish Committee Service (NMFS), National Oceanic and Special Accommodations will meet. Atmospheric Administration (NOAA), Wednesday, October 15,2008 Commerce. The meeting is via teleconference. Requests for special accommodations, 9 a.m. until 9:30 a.m. - The Law ACTION: Notice of public meeting. issues, and needs should be directed to Enforcement Committee will meet.

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9:30 a.m. - The Council will convene. consider possible limitations on at-sea Dated: September 24, 2008. 9:30 a.m. until 9:45 a.m. - Swearing in processing of mackerel. Tracey L. Thompson, of new and reappointed members will Wednesday, October 15 - The Law Acting Director, Office of Sustainable be held. Enforcement Committee will review the Fisheries, National Marine Fisheries Service. 9:45 a.m. until 10:30 a.m. - Fisheries Achievement Award (FAA) [FR Doc. E8–22816 Filed 9–29–08; 8:45 am] Groundfish Assessment Review Meeting nominations and develop BILLING CODE 3510–22–S (GARM) Report will be provided to the recommendations regarding possible Council by NMFS Officials. recipient(s) for this recognition. The 10:30 a.m. until 11 a.m. - Meeting 2 Council will convene to swear in new DEPARTMENT OF DEFENSE of Framework 2 to the Spiny Dogfish and reappointed Council members and Fishery Management Plan (FMP) will be elect Council Officers. The Council will Office of the Secretary discussed. receive a report on the recent GARM 11 a.m. until 12 p.m. - A presentation Assessment. The Council will select and Meeting of the Defense Department will be given to the Council regarding adopt the preferred alternative to adjust Advisory Committee on Women in the Amendments 3 and 4 to the stock status determination criteria Services (DACOWITS) Consolidated Highly Migratory Species (biological reference points) for the AGENCY: Department of Defense. (HMS) FMP by NMFS Officials. Spiny Dogfish FMP. A presentation will ACTION: Notice. 1 p.m. until 2:30 p.m. - The Council be given by Karyl Brewster-Geisz on will hold its regular Business Session. Amendment 3 (small coastal shark SUMMARY: Pursuant to Section 10(a), 2:30 p.m. until 3:30 p.m. - An official issues) and Amendment 4 (Caribbean Public Law 92–463, as amended, notice from NMFS will provide the Council a issues) to the NMFS’ Consolidated HMS is hereby given of a forthcoming presentation regarding the Proposed FMP. The Council will then conduct its meeting of the Defense Department Rule for use of Turtle Excluded Devices Business Session and receive Advisory Committee on Women in the (TED) in all Atlantic coast trawl Organizational, Liaison, Executive Services (DACOWITS). The purpose of fisheries. Director, Status of Fishery Management the Committee meeting is to review the 3:30 p.m. until 5 p.m. - The Executive Plans and Committee reports. A 2008 installation visits, review the Committee will meet. presentation will also be provided by a Wounded Warrior installation visits, 7 p.m. until 9 p.m. - There will be a NMFS Protected Resources official review and vote on recommendations scoping meeting to address Amendment regarding NMFS’ Proposed Rule for use for Wounded Warrior families, and also 3 to the NMFS’ Consolidated Highly of Turtle Excluder Devices (TED) in all review and edit the draft of the 2008 Migratory Species Fishery Management Atlantic coast trawl fisheries. The Report. The meeting is open to the Plan. Executive Committee will review the public, subject to the availability of 2009 Annual Work Plan (AWP); review space. Thursday, October 16, 2008 nominees and select recipients for the DATES: October 14–15, 2008, 8:30 a.m.– 9 a.m. until 11 a.m. - The Council will 2008 Ricks E Savage Award; and, 5 p.m. convene to approve Amendment 10 to address logistics and mechanics of using the Squid, Mackerel, and Butterfish the Scientific and Statistical Committee ADDRESSES: Double Tree Hotel Crystal FMP for Secretarial Submission. (SSC) to provide advice to the Council. City National Airport, 300 Army Navy 11 a.m. until 12 p.m. - The Council Thursday, October 16 - The Council Drive, Arlington, VA 22202. will then consider any Continuing and will convene to review and adopt FOR FURTHER INFORMATION CONTACT: New Business. modified alternative 1A to implement MSgt Robert Bowling, USAF, Agenda items by day for the Council’s butterfish rebuilding through use a DACOWITS, 4000 Defense Pentagon, Committees and the Council itself are: bycatch cap. The Council will then Room 2C548A, Washington, DC 20301– Tuesday, October 14 - The Bycatch/ consider any continuing or new 4000. [email protected] Limited Access Committee will business. Telephone (703) 697–2122. Fax (703) continue discussion regarding Although non-emergency issues not 614–6233. prioritization and resolution of bycatch contained in this agenda may come SUPPLEMENTARY INFORMATION: issues, i.e. - bycatch notebook and before the Council for discussion, these Meeting Agenda approve the final version of the issues may not be the subject of formal Council’s bycatch pamphlet for catch Council action during these meetings. Tuesday, October 14, 2008 8:30 a.m.–5 and release practices. The Ecosystems Council action will be restricted to those p.m. Committee will consider expanding the issues specifically listed in this notice —Welcome & Administrative Remarks. current charge and role of the and any issues arising after publication —Review 2008 installation visits. Committee. The Research Set-Aside of this notice that require emergency —Review Wounded Warrior installation Committee will establish research set- action under Section 305(c) of the visits. aside priorities for 2010 and consider Magnuson-Stevens Act, provided the —Review and edit 2008 draft report. developing a standardized rating and public has been notified of the Council’s ranking system for grant applications intent to take final actions to address Wednesday, October 15, 2008 8:30 a.m.– from a management and/or policy such emergencies. 5 p.m. perspective. The Squid, Mackerel, and —Welcome and Administrative Special Accommodations Butterfish Committee will review Remarks. comments received regarding These meetings are physically —Review and edit 2008 draft report. Amendment 11’s recent Notice of Intent accessible to people with disabilities. Interested persons may submit a (NOI) including: implementation of Requests for sign language written statement for consideration by Annual Catch Limits (ACL) and interpretation or other auxiliary aid the Defense Department Advisory Accountability Measures (AM); updated should be directed to M. Jan Bryan, Committee on Women in the Services. Essential Fish Habitat (EFH) (302) 674–2331 ext 18, at least 5 days Individuals submitting a written descriptions for all four species; and, prior to the meeting date. statement must submit their statement

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to the Point of Contact listed above at Room 3B888A, Washington, DC 20301– DEPARTMENT OF DEFENSE the address detailed NLT 5 p.m., Friday, 3140, via e-mail at [email protected], October 10, 2008. If a written statement or via phone at (703) 571–0084. Office of the Secretary is not received by Friday, October 10, 2008 prior to the meeting, which is the SUPPLEMENTARY INFORMATION: The Membership of the Defense Contract subject of this notice, then it may not be mission of the Defense Science Board is Audit Agency Senior Executive Service provided to or considered by the to advise the Secretary of Defense and Performance Review Boards Defense Department Advisory the Under Secretary of Defense for AGENCY: Defense Contract Audit Committee on Women in the Services Acquisition, Technology & Logistics on Agency, DoD. until its next open meeting. The scientific and technical matters as they Designated Federal Officer will review affect the perceived needs of the ACTION: Notice. all timely submissions with the Defense Department of Defense. At this meeting, Department Advisory Committee on the Board will discuss interim finding SUMMARY: This notice announces the Women in the Services Chairperson and and recommendations resulting from appointment of members to the Defense ensure they are provided to the ongoing Task Force activities. The Contract Audit Agency (DCAA) members of the Defense Department Board will also discuss plans for future Performance Review Boards. The Advisory Committee on Women in the consideration of scientific and technical Performance Review Boards provide fair Services. aspects of specific strategies, tactics, and and impartial review of Senior Executive Service (SES) performance If members of the public are policies as they may affect the U.S. appraisals and make recommendations interested in making an oral statement, national defense posture and homeland to the Director, DCAA, regarding final a written statement must be submitted security. as above. After reviewing the written performance ratings and performance comments, the Chairperson and the In accordance with section 10(d) of awards for DCAA SES members. the Federal Advisory Committee Act, Designated Federal Officer will DATES: Effective Date: September 30, determine who of the requesting Public Law 92–463, as amended (5 2008. persons will be able to make an oral U.S.C. App. 2) and 41 CFR 102–3.155, presentation of their issue during an the Department of Defense has FOR FURTHER INFORMATION CONTACT: open portion of this meeting or at a determined that the Defense Science Sandra L. Burrell, Chief, Human future meeting. Determination of who Board Quarterly meeting will be closed Resources Management Division, will be making an oral presentation will to the public. Specifically, the Under Defense Contract Audit Agency, 8725 depend on time available and if the Secretary of Defense (Acquisition, John J. Kingman Road, Suite 2135, Fort topics are relevant to the Committee’s Technology and Logistics), with the Belvoir, Virginia 22060–6219, (703) activities. Two minutes will be allotted coordination of the DoD Office of 767–1039. to persons desiring to make an oral General Counsel, has determined in SUPPLEMENTARY INFORMATION: In presentation. Oral presentations by writing that all sessions of these accordance with 5 U.S.C. 4314(c)(4), the members of the public will be permitted meetings will be closed to the public following are the names and titles of only on Tuesday, October 14, 2008 from because they will be concerned DCAA career executives appointed to 4:30 p.m. to 5 p.m. before the full throughout with matters listed in 5 serve as members of the DCAA Committee. Number of oral U.S.C. 552b(c)(1). Performance Review Boards. presentations to be made will depend Appointees will serve one-year terms, on the number of requests received from Interested persons may submit a effective upon publication of this notice. members of the public. written statement for consideration by the Defense Science Board. Individuals Headquarters Performance Review September 22, 2008. submitting a written statement must Board Patricia L. Toppings, submit their statement to the Designated Mr. Kenneth Saccoccia, Assistant OSD Federal Register Liaison Officer, Federal Official at the address detailed Department of Defense. Director, Policy and Plans, DCAA, above, at any point; however, if a Chairperson; [FR Doc. E8–22865 Filed 9–29–08; 8:45 am] written statement is not received at least BILLING CODE 5001–06–P Mr. Thomas Peters, Director, Field 10 calendar days prior to the meeting, Detachment, DCAA, member; which is the subject of this notice, then Ms. Karen K. Cash, Assistant Director, DEPARTMENT OF DEFENSE it may not be provided to or considered Operations, DCAA, member. by the Defense Science Board. The Office of the Secretary Designated Federal Official will review Regional Performance Review Board all timely submissions with the Defense Mr. Edward Nelson, Regional Defense Science Board; Notice of Science Board Chairperson, and ensure Advisory Committee Meeting Director, Northeastern Region, they are provided to members of the chairperson; AGENCY: Department of Defense. Defense Science Board before the Mr. Christopher Andrezze, Regional ACTION: Notice. meeting that is the subject of this notice. Director, Western Region, DCAA, Dated: September 22, 2008. member; SUMMARY: This notice announces an Mr. David Eck, Regional Director, Advisory Committee Meeting of the Patricia L. Toppings, Central Region, DCAA. Defense Science Board. The Defense OSD Federal Register Liaison Officer, Science Board will meet in closed Department of Defense. Dated: September 22, 2008. session on October 22–23, 2008 at the [FR Doc. E8–22866 Filed 9–29–08; 8:45 am] Patricia L. Toppings, Pentagon, Arlington, VA. BILLING CODE 5001–06–P OSD Federal Register Liaison Officer, FOR FURTHER INFORMATION CONTACT: Ms. Department of Defense. Debra Rose, Executive Officer, Defense [FR Doc. E8–22869 Filed 9–29–08; 8:45 am] Science Board, 3140 Defense Pentagon, BILLING CODE 5001–06–P

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DEPARTMENT OF DEFENSE worldwide. Official mailing addresses allowances, additional pay (bonuses, can be obtained from the appropriate special, and incentive pays); payroll Office of the Secretary Service point of contact found in the computation, balances and history with [Docket ID: DoD–2008–OS–0106] ‘‘Notification procedure’’ or ‘‘Record associated accounting elements; leave Access’’ sections of this proposed balances and leave history. Privacy Act of 1974; System of system of records notice. Deductions from Pay: Tax information Records (federal, state and local) based on CATEGORIES OF INDIVIDUALS COVERED BY THE withholding options, payroll AGENCY: Office of the Secretary, DoD. SYSTEM: deductions, garnishments; savings bond ACTION: Notice to add a system of Members of the United States Army, information including designated records. Navy, Air Force and Marines to include: owner, deductions, and purchase dates; Active Duty, National Guard, Reserve, thrift savings plan participation. SUMMARY: The Office of the Secretary of Retired and former military personnel, Other pay-related information: Direct Defense proposes to add a system of and Coast Guard personnel when deposit information including financial records to its inventory of record operating as a military service under the institution name, routing number and systems subject to the Privacy Act of Department of the Navy. account information. 1974 (5 U.S.C. 552a), as amended. CATEGORIES OF RECORDS IN THE SYSTEM: AUTHORITY FOR MAINTENANCE OF THE SYSTEM: DATES: This proposed action will be Personal Information: Individual’s 10 U.S.C. 113 note, Secretary of effective without further notice on name, rank/grade, address, date of birth, Defense; 10 U.S.C. 3013, Secretary of the October 30, 2008 unless comments are eye color, height, weight, place of birth, Army; 10 U.S.C. 5013, Secretary of the received which result in a contrary Social Security Number (SSN), and Navy; 10 U.S.C. 8013, Secretary of the determination. similar personal identifiers for Air Force; 14 U.S.C. 5 and 92, Coast ADDRESSES: Send comments to Chief, beneficiary/dependant purposes; Guard; 37 U.S.C., Pay and Allowances OSD/JS Privacy Office, Freedom of mother’s maiden name, driver’s license of the Uniformed Services; and E.O. Information Directorate, Washington number, security level, office location, 9397 (SSN). Headquarters Services, 1155 Defense assigned user name and security PURPOSE(S): Pentagon, Washington, DC 20301–1155. questions, local and home of record Provide a fully integrated military FOR FURTHER INFORMATION CONTACT: Ms. addresses, phone numbers and Cindy Allard at (703) 588–6830. emergency contact information. personnel and pay capability for all Personnel Information: Performance Components of the Military Services of SUPPLEMENTARY INFORMATION: The Office the Department of Defense. of the Secretary of Defense notices for plans, evaluation and review history; enrollment, participation, status and Additionally, DIMHRS will provide the systems of records subject to the Privacy Military Services and their components Act of 1974 (5 U.S.C. 552a), as amended, outcome information for Personnel Programs; service qualification and the capability to effectively manage have been published in the Federal their members during peacetime, war, Register and are available from the performance measures; types of orders; accomplishments, skills and and through mobilization and address above. demobilization. In addition, it will be The proposed system report, as competencies; career preferences; contract information related to Oath of used as a management tool for decisions required by 5 U.S.C. 552a(r) of the made within the Department of Defense. Privacy Act of 1974, as amended, was Office, enlistment and re-enlistment; submitted on August 27, 2008, to the retirement and separation information; ROUTINE USES OF RECORDS MAINTAINED IN THE House Committee on Oversight and retirement points including information SYSTEM, INCLUDING CATEGORIES OF USERS AND Government Reform, the Senate necessary to determine retirement pay; THE PURPOSES OF SUCH USES: Committee on Governmental Affairs, benefits eligibility, enrollment, In addition to those disclosures and the Office of Management and designations and status information; generally permitted under 5 U.S.C. Budget (OMB) pursuant to paragraph 4c Uniform Code of Military Justice (UCMJ) 552a(b) of the Privacy Act, these records of Appendix I to OMB Circular No. A– Actions summarizing court martial, or information contained therein may 130, ‘Federal Agency Responsibilities non-judicial punishments, and similar specifically be disclosed outside the for Maintaining Records About or related documents. Circumstances of DoD as a routine use pursuant to 5 Individuals,’ dated February 8, 1996 an incident the member was involved in U.S.C. 552a(b)(3) as follows: (February 20, 1996, 61 FR 6427). and whether he or she is in an injured, To officials and employees of the wounded, seriously wounded, or ill Department of Health and Human Dated: September 22, 2008. duty status from the incident. Services, and Selective Service Patricia L. Toppings, Duty related information: Duty Administration in the performance of OSD Federal Register Liaison Officer, station, employment and job related their official duties related to eligibility, Department of Defense. information and history; deployment notification, and assistance in obtaining DPR 36 information; work title, work address benefits for which members, former and related work contact information members or retiree may be eligible. SYSTEM NAME: (e.g., phone and fax numbers, E-mail To officials and employees of the Defense Integrated Military Human address), supervisor’s name and related Department of Veterans Affairs in the Resources System (DIMHRS) Records. contact information. performance of their official duties Education and training: High school related to approved research projects, SYSTEM LOCATION: graduation date and location; highest and for processing and adjudicating Primary Location Corporate Data level of education; other education, claims, determining eligibility, Center, Defense Enterprise Computing training and school information notification, and assistance in obtaining Center Ogden, 7879 Wardleigh Road, including courses and training benefits and medical care for which Hill AFB, UT 84056–5996. completion. members, former members, retiree and Decentralized segments are located at Pay Entitlement and Allowances: Pay family members/annuitants may be Department of Defense (DoD) activities information including earnings and eligible.

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To the Department of Veterans Affairs endorsing organizations for the which are changed periodically to provide information regarding a purposes of professional credentialing according to DoD security policy. service-member’s record or family (licensing and certification) of lawyers, RETENTION AND DISPOSAL: member for the purposes of supporting chaplains and health professionals. eligibility processing for the Service- To Federal agencies such as the Disposition pending. Until the member’s Group Life Insurance National Academy of Sciences, for the National Archives and Records program. purposes of conducting personnel and/ Administration has approved the To state and local agencies in the or health-related research in the interest retention and disposal of these records, performance of their official duties of the Federal government and the treat them as permanent. related to verification of status for public. When not considered SYSTEM MANAGER(S) AND ADDRESS: determination of eligibility for Veterans mandatory, the names and other Director, Office of the Under Secretary Bonuses and other benefits and identifying data will be eliminated from of Defense, Personnel and Readiness, entitlements. records used for such research studies. To officials and employees of the Information Management, 4040 Fairfax To the officials and employees of the Drive, Arlington, VA 22203–1613. American Red Cross in the performance Department of Labor in the performance of their duties relating to the assistance of their official duties related to NOTIFICATION PROCEDURE: of the members and their dependents employment and compensation. Individuals seeking to determine and relatives, or related to assistance The ‘‘Blanket Routine Uses’’ set forth whether information about themselves previously furnished such individuals, at the beginning of DoD’s compilation of is contained in this system of records without regard to whether the System of Records Notices apply to this should address written inquiries to the individual assisted or his/her sponsor system. appropriate address below. continues to be a member of the Military Navy Records—Navy Personnel Service. Access will be limited to those Note: Disclosure to consumer reporting agencies: Disclosures pursuant to 5 U.S.C. Command, Records Management and portions of the member’s record 552a(b)(12) may be made from this system to Policy, PERS 312E, 5720 Integrity Drive, required to effectively assist the ‘‘consumer reporting agencies’’ as defined in Millington, TN 38055–3120. member. the Fair Credit Reporting Act (14 U.S.C. Marine Corps Records—Commandant To the U.S. Citizenship and 1681a(f)) or the Federal Claims Collection of the Marine Corps, Code MMSB–12, Immigration Services for use in making Act of 1966 (31 U.S.C. 3701(a)(3)). The 2008 Elliott Road, Quantico, VA 22134– alien admission and naturalization purpose of this disclosure is to aid in the 5030. inquiries. collection of outstanding debts owed to the Army Records—U.S. Army Human To the Social Security Administration Federal government, typically to provide an Resources Command, Attn: AHRC– to obtain or verify Social Security incentive for debtors to repay delinquent Federal government debts by making these PAV–V, 1 Reserve Way, St. Louis, MO Numbers or to substantiate applicant’s 63132–5200. credit for social security compensation. debts part of their credit records. The disclosure is limited to information Air Force Records—Air Force To officials and employees of the necessary to establish the identity of the Personnel Center, HQ AFPC/DPSSRP, Office of the Sergeant at Arms of the individual, including name, address, and 550 C Street West, Suite 19, Randolph United States House of Representatives taxpayer identification number (Social AFB, TX 78150–4721. in the performance of their official Security Number); the amount, status, and Coast Guard Records—Commander, duties related to the verification of the history of the claim; and the agency or CGPC–adm–3, USCG Personnel active duty military service of Members program under which the claim arose for the Command, 4200 Wilson Blvd., Suite of Congress. Access is limited to those sole purpose of allowing the consumer 1100, Arlington, VA 22203–1804. portions of the member’s record reporting agency to prepare a commercial credit report. Requests should contain individual’s required to verify time in service. legal name, Social Security Number To the widow or widower, dependent, (SSN), and date of birth. or next-of-kin of deceased members to POLICIES AND PRACTICES FOR STORING, settle the affairs of the deceased RETRIEVING, ACCESSING, RETAINING, AND RECORD ACCESS PROCEDURES: DISPOSING OF RECORDS IN THE SYSTEM: member. The categories of individuals Individuals seeking written access to listed will have to verify relationship by STORAGE: information about themselves contained providing a birth certificate, marriage Electronic storage media. in this system of records should address license, death certificate, or court written inquiries to the appropriate document as requested/required to RETRIEVABILITY: address below. prove they are who they say they are. Individual’s name, Social Security Navy Records—Navy Personnel To governmental agencies for the Number (SSN), and date of birth. Command, Records Management and conduct of computer matching Policy, PERS 312E, 5720 Integrity Drive, agreements for the purpose(s) of SAFEGUARDS: Millington, TN 38055–3120. determining eligibility for federal DIMHRS automated data is Marine Corps Records—Commandant benefit programs, to determine maintained in controlled government of the Marine Corps, Code MMSB–12, compliance with benefit program facilities. Physical entry is restricted by 2008 Elliott Road, Quantico, VA 22134– requirements and to recover improper the use of locks, guards, and is 5030. payments or delinquent debts under a accessible only to authorized personnel Army Records—U.S. Army Human federal benefit program. with a need-to-know. Access to personal Resources Command, Attn: AHRC– To officials of the U.S. Coast Guard data is limited to person(s) responsible PAV–V, 1 Reserve Way, St. Louis, MO (USCG) for the purpose of creating for maintaining and servicing DIMHRS 63132–5200. service records for current USCG data in performance of their official Air Force Records—Air Force members that had prior Military duties and who are properly trained, Personnel Center, HQ AFPC/DPSSRP, Service. screened and cleared for a need-to- 550 C Street West, Suite 19, Randolph To federal and state licensing know. Access to personal data is further AFB, TX 78150–4721. authorities and civilian certification restricted by the use of Common Access Coast Guard Records—Commander, boards, committees and/or ecclesiastical Card (CAC) and/or strong password, CGPC–adm–3, USCG Personnel

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Command, 4200 Wilson Blvd., Suite Marla Freedman, Assistant Inspector 8. Committee’s Designated Federal 1100, Arlington, VA 22203–1804. General for Audit, Department of Officer or Point of Contact: Ms. Cynthia Requests should contain individual’s Treasury. Kramer, (845) 938–5078, legal name, Social Security Number William Maharay, Deputy Inspector [email protected]. General for Audit Services, (SSN), and date of birth. SUPPLEMENTARY INFORMATION: Any Department of Energy. member of the public is permitted to file CONTESTING RECORD PROCEDURES: Lisa Martin, General Counsel, United a written statement with the USMA The OSD rules for accessing States Postal Service, Office of Inspector General. Board of Visitors. Written statements information about themselves and for should be sent to the Designated Federal contesting contents and appealing Andrew Patchan, Assistant Inspector General for Audits and Attestations, Officer (DFO) at: United States Military initial agency determinations are Academy, Office of the Secretary of the published in Administrative Instruction Federal Reserve Board. Peter Usowski, Assistant Inspector General Staff (MASG), 646 Swift Road, 81; 32 CFR part 311; or may be obtained West Point, NY 10996–1905 or faxed to from the Privacy Act Office, Office of General for Investigations, Central Intelligence Agency. the Designated Federal Officer (DFO) at Freedom of Information, Washington (845) 938–3214. Written statements Headquarters Services, 1155 Defense Dated: September 22, 2008. must be received no later than five Pentagon, Washington, DC 20301–1155. Patricia L. Toppings, working days prior to the next meeting OSD Federal Register Liaison Officer, RECORD SOURCE CATEGORIES: in order to provide time for member Department of Defense. Data contained in this system is consideration. By rule, no member of [FR Doc. E8–22867 Filed 9–29–08; 8:45 am] the public attending open meetings will collected from the individual and DoD BILLING CODE 5001–06–P Military Services Human Resource be allowed to present questions from the Offices. floor or speak to any issue under consideration by the Board. DEPARTMENT OF DEFENSE EXEMPTIONS CLAIMED FOR THE SYSTEM: FOR FURTHER INFORMATION CONTACT: Ms. None. Department of the Army Cynthia Kramer, (845) 938–5078 (fax: 845–938–3214) or via e-mail: [FR Doc. E8–22841 Filed 9–29–08; 8:45 am] Board of Visitors, United States [email protected]. BILLING CODE 5001–06–P Military Academy (USMA) Brenda S. Bowen, AGENCY: Department of the Army, DoD. Army Federal Register Liaison Officer. DEPARTMENT OF DEFENSE ACTION: Meeting Notice. [FR Doc. E8–22917 Filed 9–29–08; 8:45 am] BILLING CODE 3710–08–P Office of the Secretary SUMMARY: Under the provisions of the Federal Advisory Committee Act of Senior Executive Service Performance 1972 (5 U.S.C., Appendix, as amended), DEPARTMENT OF ENERGY Review Board the Government in the Sunshine Act of AGENCY: Department of Defense Office 1976 (5 U.S.C. 552b, as amended), and Environmental Management Site- of Inspector General. 41 CFR 102–3.150, the Department of Specific Advisory Board, Paducah Defense announces that the following ACTION: Notice. Federal advisory committee meeting AGENCY: Department of Energy (DOE). SUMMARY: This notice announces the will take place: ACTION: Notice of open meeting. 1. Name of Committee: United States appointment of the members of the SUMMARY: This notice announces a Senior Executive Service (SES) Military Academy Board of Visitors. 2. Date: Friday, October 24, 2008. meeting of the Environmental Performance Review Board (PRB) for the 3. Time: 9 a.m.–1 p.m. Members of the Management Site-Specific Advisory Department of Defense Office of public wishing to attend the meeting Board (EM SSAB), Paducah. The Inspector General (DoD OIG), as will need to show photo identification Federal Advisory Committee Act (Pub. required by 5 U.S.C. 4314(c)(4). The in order to gain access to the meeting L. 92–463, 86 Stat. 770) requires that PRB provides fair and impartial review location. All participants are subject to public notice of this meeting be of SES performance appraisals and security screening. announced in the Federal Register. This makes recommendations regarding 4. Location: Superintendent’s meeting is being held in place of the performance ratings and performance Conference Room, Taylor Hall, West September 18, 2008, meeting, which awards to the Inspector General. Point, NY. was cancelled. DATES: Effective Date: September 23, 5. Purpose of the Meeting: This is the DATES: Thursday, October 16, 2008, 2008. 2008 Fall/Annual Meeting of the USMA 6 p.m. Board of Visitors (BoV). Members of the FOR FURTHER INFORMATION CONTACT: Ms. ADDRESSES: Barkley Centre, 111 Phyllis Hughes, Director, Human Board will be provided updates on Memorial Drive, Paducah, Kentucky Capital Advisory Services, Academy issues. 42001. 6. Agenda: The Academy leadership Administration and Management, DoD will provide the Board updates on the FOR FURTHER INFORMATION CONTACT: OIG, 400 Army Navy Drive, Arlington, following: The Academic Program, Reinhard Knerr, Deputy Designated VA 22202, (703) 602–4516. Athletic Program, and the Residential Federal Officer, Department of Energy SUPPLEMENTARY INFORMATION: In Communities Initiative. Paducah Site Office, Post Office Box accordance with 5 U.S.C. 4314(c)(4), the 7. Public’s Accessibility to the 1410, MS–103, Paducah, Kentucky following executives are appointed to Meeting: Pursuant to 5 U.S.C. 552b and 42001, (270) 441–6825. the DoD OIG, PRB: 41 CFR 102–3.140 through 102–3.165, SUPPLEMENTARY INFORMATION: Karen Ellis, Assistant Inspector General and the availability of space, this Purpose of the Board: The purpose of for Investigations, Department of meeting is open to the public. Seating is the Board is to make recommendations Agriculture. on a first-come basis. to DOE in the areas of environmental

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restoration, waste management and DATES: Thursday, October 23, 2008, 10 Issued at Washington, DC, on September related activities. a.m. to 12 p.m. 24, 2008. Rachel Samuel, Tentative Agenda: Location: TMS, Inc., 955 L’Enfant Plaza North, SW., Suite 1500, Deputy Committee Management Officer. • Call to Order, Introductions, Review Washington, DC 20024. [FR Doc. E8–22920 Filed 9–29–08; 8:45 am] of Agenda. • FOR FURTHER INFORMATION CONTACT: BILLING CODE 6450–01–P Deputy Designated Federal Officer’s Elena Melchert, U.S. Department of Comments. Energy, Office of Oil and Natural Gas, • Federal Coordinator’s Comments. Washington, DC 20585. Phone: 202– DEPARTMENT OF ENERGY • Liaisons’ Comments. 586–5600. • Presentation. Unconventional Resources • Retreat Review—Work Plan Approval. SUPPLEMENTARY INFORMATION: Technology Advisory Committee • EM SSAB Chairs Meeting Review. Purpose of the Committee: The • Public Comments. purpose of the Ultra-Deepwater AGENCY: Department of Energy, Office of • Administrative Issues—Motions; Advisory Committee is to provide Fossil Energy. Æ Chair-Elect Election, advice on development and ACTION: Notice of open meeting. Æ Recommendations. implementation of programs related to SUMMARY: • Final Comments. ultra-deepwater natural gas and other This notice announces a • Adjourn. petroleum resources to the Secretary of meeting of the Unconventional Energy and provide comments and Resources Technology Advisory Breaks Taken as Appropriate recommendations and priorities for the Committee. Federal Advisory Public Participation: The meeting is Department of Energy Annual Plan per Committee Act (Pub. L. 92–463, 86 Stat. open to the public. Written statements requirements of the Energy Policy Act of 770) requires that notice of these may be filed with the Board either 2005, Title IX, Subtitle J, Section 999. meetings be announced in the Federal before or after the meeting. Individuals Register. who wish to make oral statements Tentative Agenda DATES: Thursday, October 23, 2008, 1 pertaining to agenda items should 9:30 a.m.–10 a.m. Registration. p.m. to 3 p.m. contact Reinhard Knerr at the address or 10 a.m.–11:45 a.m. Welcome and Roll LOCATION: TMS, Inc., 955 L’Enfant Plaza, telephone number listed above. Call; North, SW., Suite 1500, Washington, DC Requests must be received five days Opening Remarks by the Committee 20024. prior to the meeting and reasonable Chair; FOR FURTHER INFORMATION CONTACT: provision will be made to include the Report by the Editing Subcommittee; Elena Melchert, U.S. Department of presentation in the agenda. The Deputy Facilitated discussion by the members Energy, Office of Oil and Natural Gas, Designated Federal Officer is regarding final report; Washington, DC 20585. Phone: 202– empowered to conduct the meeting in a Approval of Committee final report; 586–5600. fashion that will facilitate the orderly and SUPPLEMENTARY INFORMATION: conduct of business. Individuals Preparations for the next meeting of Purpose of the Committee: The wishing to make public comment will the Committee. purpose of the Unconventional be provided a maximum of five minutes 11:45 a.m.–12 p.m. Public Comments. Resources Technology Advisory to present their comments. 12 p.m. Adjourn. Committee is to provide advice on Minutes: Minutes will be available by development and implementation of writing or calling Reinhard Knerr at the Public Participation: The meeting is open to the public. The Designated programs related to onshore address and phone number listed above. unconventional natural gas and other Minutes will also be available at the Federal Officer and the Chairman of the Committee will lead the meeting, for the petroleum resources to the Secretary of following Web site: http:// Energy and provide comments and www.pgdpcab.org/minutes.htm. orderly conduct of business. If you would like to file a written statement recommendations and priorities for the Issued at Washington, DC on September with the Committee, you may do so Department of Energy Annual Plan per 24, 2008. either before or after the meeting. If you requirements of the Energy Policy Act of Rachel Samuel, would like to make oral statements 2005, Title IX, Subtitle J, Section 999. Deputy Committee Management Officer. regarding any of the items on the Tentative Agenda: [FR Doc. E8–22922 Filed 9–29–08; 8:45 am] agenda, you should contact Elena 12:30 p.m.–1 p.m. Registration. BILLING CODE 6450–01–P Melchert at the address or telephone 1 p.m.–2:45 p.m. Welcome and Roll number listed above. You must make Call; Opening Remarks by the your request for an oral statement at Committee Chair; Report by the DEPARTMENT OF ENERGY least five business days prior to the Editing Subcommittee; Facilitated meeting, and reasonable provisions will discussion by the members Ultra-Deepwater Advisory Committee be made to include the presentation on regarding final report; Approval of AGENCY: Department of Energy, Office of the agenda. Public comment will follow Committee final report; and Fossil Energy. the 5-minute rule. Preparations for the next meeting of ACTION: Notice of open meeting. Minutes: The minutes of this meeting the Committee. will be available for public review and 2:45 p.m.–3 p.m. Public Comments. SUMMARY: This notice announces a copying within 60 days at the Freedom 3 p.m. Adjourn. meeting of the Ultra-Deepwater of Information Public Reading Room, Public Participation: The meeting is Advisory Committee. Federal Advisory Room 1G–033, Forrestal Building, 1000 open to the public. The Designated Committee Act (Pub. L. 92–463, 86 Stat. Independence Avenue, SW., Federal Officer and the Chairman of the 770) requires that notice of these Washington, DC, between 9 a.m. and 4 Committee will lead the meeting for the meetings be announced in the Federal p.m., Monday through Friday, except orderly conduct of business. If you Register. federal holidays. would like to file a written statement

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with the Committee, you may do so toll-free, (866) 208–3676 or TTY, (202) Applicants: Hydro-Quebec Energy either before or after the meeting. If you 502–8659. Services (U.S.) Inc. would like to make oral statements KECA has requested that Texas Gas Description: H.Q. Energy Services regarding any of the items on the provide the proposed delivery meter (U.S.) Inc.’s Notice of Non-Material agenda, you should contact Elena station in order for KECA to provide Change in Status. Melchert at the address or telephone natural gas service to the Warren County Filed Date: 09/19/2008. number listed above. You must make Correctional Facility which is currently Accession Number: 20080919–5121. your request for an oral statement at being served by Duke Energy Ohio, Inc., Comment Date: 5 p.m. Eastern Time least five business days prior to the a local distribution company. Texas Gas on Friday, October 10, 2008. meeting, and reasonable provisions will estimates that it would cost $561,414 to Docket Number: ER02–1884–006. be made to include the presentation on construct the proposed delivery meter Applicants: Waterside Power, LLC. the agenda. Public comment will follow station with KECA and all costs Description: Waterside Power, LLC the 5 minute rule. associated with such facilities would be affirms that none of Waterside or any of Minutes: The minutes of this meeting reimbursed by KECA. its affiliates has erected or will erect will be available for public review and Any questions regarding the barriers to entry into the relevant copying within 60 days at the Freedom application should be directed to Kathy market. of Information Public Reading Room, D. Fort, Manager of Certificates and Filed Date: 09/17/2008. Accession Number: 20080922–0255. Room 1G–033, Forrestal Building, 1000 Tariffs, Texas Gas Transmission, LLC, Comment Date: 5 p.m. Eastern Time Independence Avenue, SW., 3800 Frederica Street, Owensboro, on Wednesday, October 8, 2008. Washington, DC, between 9 a.m. and 4 Kentucky 42301, or call (270) 688–6825, p.m., Monday through Friday, except or fax (270) 688–5871, or e-mail Docket Numbers: ER02–1398–005; federal holidays. [email protected]. ER98–564–011; ER07–1274–002; ER05– 111–005; ER08–25–004; ER08–26–004; Issued at Washington, DC, on September Any person may, within 60 days after the issuance of the instant notice by the ER08–685–003. 24, 2008. Applicants: KeySpan-Ravenswood, Rachel Samuel, Commission, file pursuant to Rule 214 of the Commission’s Procedural Rules LLC; TransCanada Power Marketing Ltd; Deputy Committee Management Officer. (18 CFR 385.214) a motion to intervene TransCanada Energy Marketing ULC; [FR Doc. E8–22919 Filed 9–29–08; 8:45 am] or notice of intervention. Any person TransCanada Hydro Northeast Inc.; BILLING CODE 6450–01–P filing to intervene or the Commission’s Ocean State Power; Ocean State Power staff may, pursuant to section 157.205 of II; TransCanada Maine Wind the Commission’s Regulations under the Development Inc. DEPARTMENT OF ENERGY NGA (18 CFR 157.205) file a protest to Description: Key-Span Ravenswood, the request. If no protest is filed within LLC et al. submits notification of a non- Federal Energy Regulatory material change in status with respect to Commission the time allowed therefore, the proposed activity shall be deemed to be the market based rate authority. Filed Date: 09/22/2008. authorized effective the day after the [Docket No. CP08–474–000] Accession Number: 20080923–0061. time allowed for protest. If a protest is Comment Date: 5 p.m. Eastern Time Texas Gas Transmission, LLC; Notice filed and not withdrawn within 30 days on Tuesday, October 14, 2008. after the time allowed for filing a of Request Under Blanket Docket Numbers: ER08–799–002. protest, the instant request shall be Authorization Applicants: Consolidated Edison Co. treated as an application for of New York, Inc. September 22, 2008. authorization pursuant to section 7 of Description: Consolidated Edison Take notice that on September 18, the NGA. Company of New York, Inc submits 2008, Texas Gas Transmission, LLC The Commission strongly encourages their Master Service Agreement. (Texas Gas), 417 3800 Frederica Street, electronic filings of comments, protests, Filed Date: 09/22/2008. Owensboro, Kentucky 42301, filed in and interventions via the Internet in lieu Accession Number: 20080923–0062. Docket No. CP08–474–000, a prior of paper. See 18 CFR 385.2001(a)(1)(iii) Comment Date: 5 p.m. Eastern Time notice request pursuant to sections and the instructions on the on Tuesday, October 14, 2008. 157.205 and 157.211 of the Federal Commission’s Web site (http:// Docket Numbers: ER08–416–004; Energy Regulatory Commission’s www.ferc.gov) under the ‘‘e-Filing’’ link. ER06–1552–006. regulations under the Natural Gas Act Nathaniel J. Davis, Sr., Applicants: Midwest Independent (NGA) and its blanket authority granted Deputy Secretary. Transmission System Operator, Inc. in Docket No. CP82–407–000 for Description: Midwest Independent [FR Doc. E8–22857 Filed 9–29–08; 8:45 am] authorization to construct, install, Transmission System Operator, Inc operate, and maintain a new delivery BILLING CODE 6717–01–P submits proposed revisions to its point to be located in Warren County, current Open Access Transmission and Ohio for Knox Energy Cooperative DEPARTMENT OF ENERGY Markets Tariff and its Open Access Association, Inc. (KECA), all as more Transmission Energy and Operating fully set forth in the application, which Federal Energy Regulatory Reserve Markets Tariff. is on file with the Commission and open Commission Filed Date: 09/17/2008. to public inspection. The filing may also Accession Number: 20080919–0067. be viewed on the Web at http:// Combined Notice of Filings # 1 Comment Date: 5 p.m. Eastern Time www.ferc.gov using the ‘‘eLibrary’’ link. on Wednesday, October 8, 2008. Enter the docket number excluding the September 23, 2008. Docket Numbers: ER08–921–001. last three digits in the docket number Take notice that the Commission Applicants: Pacific Gas and Electric field to access the document. For received the following electric rate Company. assistance, contact FERC at filings: Description: Pacific Gas and Electric [email protected] or call Docket Number: ER97–851–019. Company submits revisions to

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Appendices B and E of the Applicants: ISO New England Inc. Filed Date: 09/17/2008. Interconnection Agreement between Description: ISO New England Inc Accession Number: 20080919–0013. PG&E and the Sacramento Municipal submits the Errata to the Informational Comment Date: 5 p.m. Eastern Time Utility District designated as PG&E Filing for Qualification in the Forward on Wednesday, October 8, 2008. Second Revised Rate Schedule FERC Capacity Market filed by ISO New Docket Numbers: ER08–1552–000. 136. England Inc on 9/9/08. Applicants: Sierra Pacific Resources Filed Date: 09/18/2008. Filed Date: 09/16/2008. Operating Company. Accession Number: 20080919–0007. Accession Number: 20080917–0245. Description: Nevada Power Company Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time and Sierra Pacific Power Company on Thursday, October 9, 2008. on Tuesday, October 7, 2008. submits revisions to its FERC Electric Docket Numbers: ER08–1201–001. Docket Numbers: ER08–1542–000. Tariff, Third Revised Volume 1 Open Applicants: Southwestern Electric Applicants: U.S. Gas and Electric Inc. Access Transmission Tariff. Power Company. Description: U.S. Gas & Electric Inc Filed Date: 09/17/2008. Description: American Electric Power request acceptance of FERC Electric Accession Number: 20080919–0005. Service Corporation on behalf of Tariff, Original Volume 1, which it will Comment Date: 5 p.m. Eastern Time Southwestern Electric Power Company engage in wholesale sales of electric on Wednesday, October 8, 2008. submits a Refund Report energy etc. Docket Numbers: ER08–1553–000. Filed Date: 09/18/2008. Filed Date: 09/17/2008. Applicants: PJM Interconnection, Accession Number: 20080918–5084. Accession Number: 20080919–0066. L.L.C. Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time Description: PJM Interconnection, on Thursday, October 9, 2008. on Wednesday, October 8, 2008. LLC submits an executed Docket Numbers: ER07–1402–002. Docket Numbers: ER08–1547–000. interconnection service agreement Applicants: Allegheny Generating Applicants: PacifiCorp. among PJM, RPL Holdings, Inc and Company. Description: PacifiCorp submits Public Service Electric and Gas Description: Supplemental Network Integration Transmission Company and a notice of cancellation of Information/Amended and Restated Service Agreement dated 8/19/08 with an ISA being superseded. Settlement Agreement of Allegheny Basin Electric Power Cooperative Filed Date: 09/17/2008. Generating Company. designated as Service Agreement 505, Accession Number: 20080919–0006. Filed Date: 08/01/2008. Seventh Revised Volume 11 OATT et al. Comment Date: 5 p.m. Eastern Time Accession Number: 20080801–5069. Filed Date: 09/17/2008. on Wednesday, October 8, 2008. Accession Number: 20080917–0241. Comment Date: 5 p.m. Eastern Time Docket Numbers: ER08–1554–000. Comment Date: 5 p.m. Eastern Time on Friday, October 3, 2008. Applicants: American Electric Power on Wednesday, October 8, 2008. Service Corporation. Docket Numbers: ER08–1149–002. Docket Numbers: ER08–1548–000. Description: American Electric Power Applicants: Westar Energy, Inc. Applicants: Northeast Utilities Services Corporation submits a fully Description: Westar Energy, Inc Service Company, National Grid USA. executed generation interconnection submits Alternate Pro Forma Sheet 30 to Description: Joint Application for agreement dated 8/29/08 with Texas Westar’s pro forma Formula Rate Transmission Incentives of Northeast Central Company Transmission Service Agreement for Full Requirements Utilities Service Company and National Provider & EC&R Papalote Creek I, LLC. Electric Service between Westar and the Grid USA. Filed Date: 09/18/2008. City of Elwood, Kansas etc. Filed Date: 09/17/2008. Accession Number: 20080922–0029. Filed Date: 09/19/2008. Accession Number: 20080919–0080. Comment Date: 5 p.m. Eastern Time Accession Number: 20080922–0030. Comment Date: 5 p.m. Eastern Time on Thursday, October 9, 2008. Comment Date: 5 p.m. Eastern Time on Wednesday, October 8, 2008. on Friday, October 10, 2008. Docket Numbers: ER08–1555–000. Docket Numbers: ER08–1550–000. Applicants: PJM Interconnection, Docket Numbers: ER08–1416–000. Applicants: Duke Energy Carolinas, L.L.C. Applicants: Black Hills/Colorado LLC. Description: PJM Interconnection, Electric Utility Co. Description: Duke Energy Carolinas, LLC submits an executed Description: Black Hills/Colorado LLC submits proposed changes to its interconnection service agreement Electric Utility Co, LP submits Notice of Revised and Restated Interconnection among PJM, Big Sky Wind, LLC and Succession notifying that they have Agreement with North Carolina Electric Commonwealth Edison Company. succeeded to the open access Membership Corporation, which is Filed Date: 09/18/2008. transmission tariff of Aquila, Inc. being designated as Duke Energy Fourth Accession Number: 20080922–0028. Filed Date: 08/13/2008. Revised etc. Comment Date: 5 p.m. Eastern Time Accession Number: 20080819–0279. Filed Date: 09/17/2008. on Thursday, October 9, 2008. Comment Date: 5 p.m. Eastern Time Accession Number: 20080919–0013. Docket Numbers: ER08–1556–000. on Friday, October 3, 2008. Comment Date: 5 p.m. Eastern Time Applicants: Midwest Independent Docket Numbers: ER08–1454–001. on Wednesday, October 8, 2008. Transmission System. Applicants: Westar Energy, Inc. Docket Numbers: ER08–1551–000. Description: Midwest Independent Description: Westar Energy, Inc et. al Applicants: Duke Energy Carolinas, Transmission System Operator, Inc submits Substitute Original Sheet Nos LLC. submits revisions to Schedules 7, 8, and 1–12 correcting the volume Description: Duke Energy Carolinas, 9 of their Open Access Transmission identification. LLC submits proposed changes to its and Energy Markets Tariff, to be Filed Date: 09/16/2008. Revised and Restated Interconnection effective 11/18/08. Accession Number: 20080917–0244. Agreement with North Carolina Electric Filed Date: 09/19/2008. Comment Date: 5 p.m. Eastern Time Membership Corporation, which is Accession Number: 20080923–0004. on Tuesday, October 7, 2008. being designated as Duke Energy Fourth Comment Date: 5 p.m. Eastern Time Docket Numbers: ER08–1513–001. Revised etc. on Friday, October 10, 2008.

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Docket Numbers: ER08–1557–000. Take notice that the Commission [email protected], or call Applicants: Freedom Partners, LLC. received the following open access (866) 208–3676 (toll free). For TTY, call Description: Freedom Partners, LLC transmission tariff filings: (202) 502–8659. submits a Notice of Cancellation of Docket Numbers: OA07–104–002. Nathaniel J. Davis, Sr., FERC Electric Tariff, Original Volume 1, Applicants: Maine Public Service Deputy Secretary. to be effective 11/1/08. Company. Filed Date: 09/19/2008. Description: Maine Public Service [FR Doc. E8–22864 Filed 9–29–08; 8:45 am] Accession Number: 20080923–0003. Company Compliance Filing With BILLING CODE 6717–01–P Comment Date: 5 p.m. Eastern Time Revisions To Attachment C. on Friday, October 10, 2008. Filed Date: 09/19/2008. DEPARTMENT OF ENERGY Docket Numbers: ER08–1558–000. Accession Number: 20080919–5099. Applicants: Constellation Energy Comment Date: 5 p.m. Eastern Time Federal Energy Regulatory Commodities Group. on Friday, October 10, 2008. Commission Description: Constellation Energy Any person desiring to intervene or to Commodities Group, Inc requests a protest in any of the above proceedings [Docket No. CP08–462–000] short-term waiver of the Commission’s must file in accordance with Rules 211 Algonquin Gas Transmission, L.L.C.; affiliate sales restrictions, effective 9/19/ and 214 of the Commission’s Rules of Notice of Intent To Prepare an 08. Practice and Procedure (18 CFR 385.211 Environmental Assessment for the Filed Date: 09/19/2008. and 385.214) on or before 5 p.m. Eastern Proposed Kleen Energy Lateral Project Accession Number: 20080923–0002. time on the specified comment date. It and Request for Comments on Comment Date: 5 p.m. Eastern Time is not necessary to separately intervene Environmental Issues on Friday, October 10, 2008. again in a subdocket related to a Docket Numbers: ER08–1559–000. compliance filing if you have previously September 23, 2008. Applicants: Golden Spread Electric intervened in the same docket. Protests The staff of the Federal Energy Cooperative, Inc. will be considered by the Commission Regulatory Commission (FERC or Description: Golden Spread Electric in determining the appropriate action to Commission) will prepare an Coop, Inc submits First Revised Sheet be taken, but will not serve to make environmental assessment (EA) that will 400–403 and 405–499 to First Revised protestants parties to the proceeding. discuss the potential environmental Rate Schedule 23–33. Anyone filing a motion to intervene or impacts of the Kleen Energy Lateral Filed Date: 09/19/2008. protest must serve a copy of that Project involving the construction of Accession Number: 20080923–0006. document on the Applicant. In reference approximately 1.13 miles of 20-inch- Comment Date: 5 p.m. Eastern Time to filings initiating a new proceeding, diameter natural gas transmission on Friday, October 10, 2008. interventions or protests submitted on pipeline by Algonquin Gas Docket Numbers: ER08–1562–000. or before the comment deadline need Transmission, L.L.C. (AGT) in Applicants: TC Ravenswood, LLC. not be served on persons other than the Middletown, Connecticut. The EA will Description: TC Ravenswood, LLC Applicant. be used by the Commission in its submits Notice of Succession notifying The Commission encourages decision-making process to determine FERC of a corporate name change, and electronic submission of protests and whether the project is in the public to adopt, as their own, FERC Electric interventions in lieu of paper, using the convenience and necessity. Tariff of KeySpan-Ravenswood, LLC. FERC Online links at http:// This notice announces the opening of Filed Date: 09/22/2008. www.ferc.gov. To facilitate electronic the scoping process the Commission Accession Number: 20080923–0063. service, persons with Internet access will use to gather input from the public Comment Date: 5 p.m. Eastern Time who will eFile a document and/or be and interested agencies on the project. on Tuesday, October 14, 2008. listed as a contact for an intervenor Your input will help determine which must create and validate an issues need to be evaluated in the EA. Take notice that the Commission eRegistration account using the Please note that the scoping period will received the following electric securities eRegistration link. Select the eFiling close on October 23, 2008. Details on filings: link to log on and submit the how to submit comments are provided Docket Numbers: ES08–65–000. intervention or protests. in the ‘‘Public Participation’’ section of Applicants: Michigan Electric Persons unable to file electronically this notice. Transmission Co., LLC. should submit an original and 14 copies This notice is being sent to affected Description: Application of Michigan of the intervention or protest to the landowners; federal, state, and local Electric Transmission Company, LLC Federal Energy Regulatory Commission, government representatives and under Section 204 of the Federal Power 888 First St., NE., Washington, DC agencies; elected officials; Native Act. 20426. American tribes; other interested Filed Date: 09/18/2008. The filings in the above proceedings parties; and local libraries and Accession Number: 20080918–5053. are accessible in the Commission’s newspapers. State and local government Comment Date: 5 p.m. Eastern Time eLibrary system by clicking on the representatives are asked to notify their on Thursday, October 9, 2008. appropriate link in the above list. They constituents of this proposed project Docket Numbers: ES08–66–000. are also available for review in the and to encourage them to comment on Applicants: ITC Midwest LLC. Commission’s Public Reference Room in their areas of concern. Description: Application of ITC Washington, DC. There is an If you are a landowner receiving this Midwest LLC under Section 204 of the eSubscription link on the Web site that notice, you may be contacted by a Federal Power Act. enables subscribers to receive e-mail pipeline company representative about Filed Date: 09/18/2008. notification when a document is added the acquisition of an easement to Accession Number: 20080918–5068. to a subscribed dockets(s). For construct, operate, and maintain the Comment Date: 5 p.m. Eastern Time assistance with any FERC Online proposed facilities. AGT would seek to on Thursday, October 9, 2008. service, please e-mail negotiate a mutually acceptable

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agreement. However, if the project is The EA Process Public Participation approved by the Commission, that We 2 are preparing this EA to comply You can make a difference by approval conveys with it the right of with the National Environmental Policy providing us with your specific eminent domain. Therefore, if easement Act (NEPA) which requires the comments or concerns about the Kleen negotiations fail to produce an Commission to take into account the Energy Lateral Project. Your comments agreement, AGT could initiate environmental impact that could result should focus on the potential condemnation proceedings in if it authorizes AGT’s proposal. By this environmental effects of the proposal, accordance with state law. notice, we are also asking federal, state, reasonable alternatives, and measures to A fact sheet prepared by the FERC and local agencies with jurisdiction avoid or lessen the environmental entitled ‘‘An Interstate Natural Gas and/or special expertise with respect to impacts. The more specific your Facility on My Land? What Do I Need environmental issues to formally comments, the more useful they will be. To Know?’’ addresses a number of cooperate with us in the preparation of To ensure that your comments are typically asked questions, including the the EA. Agencies that would like to timely and properly recorded, please use of eminent domain and how to request cooperating status should follow send in your comments so that they will participate in the Commission’s the instructions for filing comments be received in Washington, DC on or proceedings. It is available for viewing provided below. before October 23, 2008. on the FERC Internet Web site (http:// NEPA also requires the FERC to For your convenience, there are three www.ferc.gov). discover and address concerns the methods which you can use to submit Summary of the Proposed Project public may have about proposals. This your comments to the Commission. In process is referred to as ‘‘scoping.’’ The all instances please reference the project AGT proposes to construct its 1.13- main goal of the scoping process is to docket number with your submission. mile-long, 20-inch-diameter Kleen focus the analysis in the EA on the The docket number can be found on the Energy Lateral in the area of Middlesex important environmental issues. By this front of this notice. The Commission County, Connecticut. AGT would also Notice of Intent, we are requesting encourages electronic filing of construct one metering station and public comments on the scope of the comments and has dedicated eFiling related ancillary facilities. The project issues to address in the EA. All expert staff available to assist you at would provide up to 131,000 comments received will be considered (202) 502–8258 or [email protected]. dekatherms per day of firm natural gas during the preparation of the EA. (1) You may file your comments transportation service to the Kleen The EA will discuss impacts that electronically by using the Quick Energy Power Plant, a proposed 620- could occur as a result of the Comment feature, which is located on megawatt natural gas-fired power plant construction and operation of the the Commission’s internet Web site at to be constructed by Kleen Energy in the proposed project under these general http://www.ferc.gov under the link to City of Middletown, Connecticut. The headings: Documents and Filings. A Quick lateral pipeline would begin at an • Geology and soils Comment is an easy method for • interconnect with AGT’s existing W- Land use and visual quality interested persons to submit text-only System pipeline at the NRG Power Plant • Cultural resources • comments on a project. Facility and terminate at the proposed Vegetation and wildlife (including (2) You may file your comments meter station in the vicinity of the threatened and endangered species) electronically by using the eFiling proposed power plant. • Air quality and noise • feature, which is located on the Construction and operation of the Reliability and safety We will also evaluate possible Commission’s internet Web site at proposed project would affect about http://www.ferc.gov under the link to 18.6 acres, including the pipeline (4.3 alternatives to the proposed project or portions of the project, where necessary, Documents and Filings. eFiling involves acres), meter station (0.9 acre), preparing your submission in the same temporary workspaces (11.6 acres), and and make recommendations on how to lessen or avoid impacts on the various manner as you would if filing on paper, access roads (1.8 acres). The proposed and then saving the file on your project is primarily located within an resource areas. Our independent analysis of the computer’s hard drive. You will attach existing paved roadway. The meter issues will be presented in the EA. that file as your submission. New station would be located immediately Depending on the comments received eFiling users must first create an adjacent to the proposed Kleen Energy during the scoping process, the EA may account by clicking on ‘‘Sign up’’ or Power Plant. AGT would require one be published and mailed to federal, ‘‘eRegister’’. You will be asked to select new access road to access the proposed state, and local agencies, public interest the type of filing you are making. A meter station. Another existing road groups, interested individuals, affected comment on a particular project is (located at the Middletown Power Plant) landowners, local libraries and considered a ‘‘Comment on a Filing.’’ would be used for site access during newspapers, and the Commission’s (3) You may file your comments via construction and operation. official service list for this proceeding. mail to the Commission by sending an The general location of the proposed original and two copies of your letter to: 1 A comment period will be allotted for facilities is shown in appendix 1. review if the EA is published. We will Kimberly D. Bose, Secretary, Federal consider all comments on the EA before Energy Regulatory Commission, 888 1 The appendices referenced in this notice are not we make our recommendations to the First Street, NE., Room 1A, Washington, being printed in the Federal Register. Copies of all Commission. DC 20426. appendices are available on the Commission’s Web Label one copy of the comments for site at the ‘‘eLibrary’’ link or from the Commission’s To ensure your comments are Public Reference Room, 888 First Street, NE., received and considered, please the attention of Gas Branch 1, PJ11.1. Washington, DC 20426, or call (202) 502–8371. For carefully follow the instructions in the Becoming an Intervenor instructions on connecting to eLibrary, refer to the ‘‘Public Participation’’ section below. ‘‘Additional Information’’ section of this notice. In addition to involvement in the EA Copies of the appendices were sent to all those receiving this notice in the mail. Requests for 2 ‘‘We,’’ ‘‘us,’’ and ‘‘our’’ refer to the scoping process, you may want to detailed maps of the proposed facilities should be environmental staff of the FERC’s Office of Energy become an official party to the made directly to AGT. Projects. proceeding known as an ‘‘intervenor.’’

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Intervenors play a more formal role in In addition, the Commission offers a DEPARTMENT OF ENERGY the process. Among other things, free service called eSubscription which intervenors have the right to receive allows you to keep track of all formal Federal Energy Regulatory copies of case-related Commission issuances and submittals in specific Commission documents and filings by other dockets. This can reduce the amount of [Docket No. ER08–1558–000] intervenors. Likewise, each intervenor time you spend researching proceedings must send one electronic copy (using by automatically providing you with Constellation Energy Commodities the Commission’s eFiling system) or 14 notification of these filings, document Group, Inc.; Notice of Filing paper copies of its filings to the summaries and direct links to the Secretary of the Commission and must documents. Go to http://www.ferc.gov/ September 23, 2008. send a copy of its filings to all other esubscribenow.htm. Take notice that on September 19, parties on the Commission’s service list 2008, Constellation Energy for this proceeding. Finally, any public meetings or site visits scheduled for this project will be Commodities Group, Inc. (Constellation) If you want to become an intervenor filed a request for short-term waiver of posted on the Commission’s calendar at you must file a motion to intervene the Commission’s affiliate sales http://www.ferc.gov/EventCalendar/ according to Rule 214 of the restrictions, effective September 19, EventsList.aspx along with other related Commission’s Rules of Practice and 2008, with respect to ongoing power Procedure (18 CFR 385.214) (see information. You can also request sales by Constellation to PacifiCorp appendix 2).3 Only intervenors have the additional information by calling AGT under its market-based rate tariff, until right to seek rehearing of the at (713) 627–5053. a more detailed proposal for future sales Commission’s decision. Kimberly D. Bose, is filed and accepted by the Affected landowners and parties with Secretary. Commission, pursuant to section 205 of environmental concerns may be granted the Federal Power Act, 16 U.S.C. 824d [FR Doc. E8–22868 Filed 9–29–08; 8:45 am] intervenor status upon showing good (2006) and Part 35 of the Rules and cause by stating that they have a clear BILLING CODE 6717–01–P Procedures of the Commission, 18 CFR and direct interest in this proceeding Part 35 (2008). which would not be adequately Any person desiring to intervene or to DEPARTMENT OF ENERGY represented by any other parties. You do protest this filing must file in not need intervenor status to have your accordance with Rules 211 and 214 of environmental comments considered. Federal Energy Regulatory Commission the Commission’s Rules of Practice and Environmental Mailing List Procedure (18 CFR 385.211, 385.214). Protests will be considered by the As described above, we may publish [Docket No. OA08–62–000] Commission in determining the and distribute the EA for comment. If appropriate action to be taken but will you are interested in receiving an EA for California Independent System not serve to make protestants parties to review and/or comment, please return Operator Corporation; Notice of FERC the proceeding. Any person wishing to the Environmental Mailing List Form Staff Attendance become a party must file a notice of (appendix 3). If you do not return the September 23, 2008. intervention or motion to intervene, as Environmental Mailing List Form, you appropriate. Such notices, motions, or will be taken off the mailing list. All The Federal Energy Regulatory protests must be filed on or before the individuals who provide written Commission (Commission) hereby gives comment date. On or before the comments will remain on our notice that on September 25, 2008, comment date, it is not necessary to environmental mailing list for this members of its staff will participate in serve motions to intervene or protests project. a meeting to be conducted by the on persons other than the Applicant. Additional Information California Independent System Operator The Commission encourages (CAISO) regarding the CAISO’s electronic submission of protests and Additional information about the transmission planning standards interventions in lieu of paper using the project is available from the ‘‘eFiling’’ link at http://www.ferc.gov. Commission’s Office of External Affairs, agreement. The information and Persons unable to file electronically at 1–866–208–FERC or on the FERC documents for the meeting can be should submit an original and 14 copies Internet Web site (http://www.ferc.gov) obtained from Judi Sanders, of the protest or intervention to the using the ‘‘eLibrary’’ link. Click on the [email protected]. Federal Energy Regulatory Commission, eLibrary link, then on ‘‘General Search’’ Sponsored by the CAISO, this meeting 888 First Street, NE., Washington, DC and enter the docket number excluding is open to all market participants, and 20426. the last three digits in the Docket staff’s participation is part of the This filing is accessible on-line at Number field. Be sure you have selected Commission’s ongoing outreach efforts. http://www.ferc.gov, using the an appropriate date range. For This meeting may discuss matters at ‘‘eLibrary’’ link and is available for assistance, please contact FERC Online issue in the above captioned docket. review in the Commission’s Public Support at [email protected] For further information, contact Saeed Reference Room in Washington, DC. or toll free at 1–866–208–3676, or for Farrokhpay at There is an ‘‘eSubscription’’ link on the TTY, contact (202) 502–8659. The [email protected]; (916) 294– Web site that enables subscribers to eLibrary link also provides access to the 0233 or Maury Kruth at receive e-mail notification when a texts of formal documents issued by the [email protected], (916) 294–0275. document is added to a subscribed Commission, such as orders, notices, docket(s). For assistance with any FERC and rulemakings. Nathaniel J. Davis, Sr., Online service, please e-mail Deputy Secretary. 3 Interventions may also be filed electronically via [email protected], or call the Internet in lieu of paper. See the previous [FR Doc. E8–22860 Filed 9–29–08; 8:45 am] (866) 208–3676 (toll free). For TTY, call discussion on filing comments electronically. BILLING CODE 6717–01–P (202) 502–8659.

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Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time (866) 208–3676 (toll free). For TTY, call on September 26, 2008. on October 2, 2008. (202) 502–8659. Comment Date: 5 p.m. Eastern Time Nathaniel J. Davis, Sr., Nathaniel J. Davis, Sr., on October 8, 2008. Deputy Secretary. Deputy Secretary. [FR Doc. E8–22861 Filed 9–29–08; 8:45 am] [FR Doc. E8–22855 Filed 9–29–08; 8:45 am] Nathaniel J. Davis, Sr., Deputy Secretary. BILLING CODE 6717–01–P BILLING CODE 6717–01–P [FR Doc. E8–22854 Filed 9–29–08; 8:45 am] BILLING CODE 6717–01–P DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY

Federal Energy Regulatory Federal Energy Regulatory DEPARTMENT OF ENERGY Commission Commission Federal Energy Regulatory [Docket No. ER08–1542–000] Commission [Docket No. EC08–119–000] U.S. Gas and Electric Inc; Notice of Rumford Power Inc.; Tiverton Power Filing [Docket No. EF08–5041–000] Inc.; Notice of Filing September 22, 2008. Western Area Power Administration; September 22, 2008. Take notice that on September 17, Notice of Filing 2008, U.S. Gas and Electric Inc filed an Take notice that on September 17, application for order accepting its FERC September 22, 2008. 2008, Rumford Power Inc. and Tiverton Electric Tariff, Original Volume No. 1, Take notice that on September 16, Power Inc. filed a revised Exhibit M to under which it will engage in wholesale 2008, the Deputy Secretary of the the August 20, 2008 filed section 203 sales of electric energy, capacity, and Department of Energy submitted Rate application. ancillary services at market-based rates, Order No. WAPA–138, confirmed and Any person desiring to intervene or to grant certain blanket approvals and approved on an interim basis, effective protest this filing must file in expedited action, and waivers of certain October 1, 2008, Rate Schedules PD–F7 accordance with Rules 211 and 214 of Commission regulations. for firm power from the Parker-Davis the Commission’s Rules of Practice and Any person desiring to intervene or to Project, PD–FT7 for firm point-to-point Procedure (18 CFR 385.211, 385.214). protest this filing must file in transmission on the same system, PD– Protests will be considered by the accordance with Rules 211 and 214 of FCT7 for firm point-to-point Commission in determining the the Commission’s Rules of Practice and transmission of Salt Lake City Area appropriate action to be taken, but will Procedure (18 CFR 385.211, 385.214). Integrated Projects power on the P–DP, not serve to make protestants parties to Protests will be considered by the and PD–NFT7 for non-firm transmission the proceeding. Any person wishing to Commission in determining the service on the same system, and become a party must file a notice of appropriate action to be taken, but will submitted for confirmation and intervention or motion to intervene, as not serve to make protestants parties to approval on a final basis, under the appropriate. Such notices, motions, or the proceeding. Any person wishing to authority vested in the Commission by protests must be filed on or before the become a party must file a notice of Delegation Order No. 00–037.00, Rate comment date. On or before the intervention or motion to intervene, as Schedules PD–F7, PD–FT7. PD–FCT7, comment date, it is not necessary to appropriate. Such notices, motions, or and PD–NFT7, effective October 1, 2008 serve motions to intervene or protests protests must be filed on or before the and ending September 30, 2013. on persons other than the Applicant. comment date. On or before the Any person desiring to intervene or to comment date, it is not necessary to protest this filing must file in The Commission encourages serve motions to intervene or protests accordance with Rules 211 and 214 of electronic submission of protests and on persons other than the Applicant. the Commission’s Rules of Practice and interventions in lieu of paper using the The Commission encourages Procedure (18 CFR 385.211, 385.214). ‘‘eFiling’’ link at http://www.ferc.gov. electronic submission of protests and Protests will be considered by the Persons unable to file electronically interventions in lieu of paper using the Commission in determining the should submit an original and 14 copies ‘‘eFiling’’ link at http://www.ferc.gov. appropriate action to be taken, but will of the protest or intervention to the Persons unable to file electronically not serve to make protestants parties to Federal Energy Regulatory Commission, should submit an original and 14 copies the proceeding. Any person wishing to 888 First Street, NE., Washington, DC of the protest or intervention to the become a party must file a notice of 20426. Federal Energy Regulatory Commission, intervention or motion to intervene, as This filing is accessible on-line at 888 First Street, NE., Washington, DC appropriate. Such notices, motions, or http://www.ferc.gov, using the 20426. protests must be filed on or before the ‘‘eLibrary’’ link and is available for This filing is accessible on-line at comment date. On or before the review in the Commission’s Public http://www.ferc.gov, using the comment date, it is not necessary to Reference Room in Washington, DC. ‘‘eLibrary’’ link and is available for serve motions to intervene or protests There is an ‘‘eSubscription’’ link on the review in the Commission’s Public on persons other than the Applicant. Web site that enables subscribers to Reference Room in Washington, DC. The Commission encourages receive e-mail notification when a There is an ‘‘eSubscription’’ link on the electronic submission of protests and document is added to a subscribed Web site that enables subscribers to interventions in lieu of paper using the docket(s). For assistance with any FERC receive e-mail notification when a ‘‘eFiling’’ link at http://www.ferc.gov. Online service, please e-mail document is added to a subscribed Persons unable to file electronically [email protected], or call docket(s). For assistance with any FERC should submit an original and 14 copies (866) 208–3676 (toll free). For TTY, call Online service, please e-mail of the protest or intervention to the (202) 502–8659. [email protected], or call Federal Energy Regulatory Commission,

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888 First Street, NE., Washington, DC Environmental Protection Agency, How Can I Access the Docket and/or 20426. Mailcode: 2822T, 1200 Pennsylvania Submit Comments? This filing is accessible on-line at Ave., NW., Washington, DC 20460. http://www.ferc.gov, using the Hand Delivery: EPA Docket Center EPA has established a public docket ‘‘eLibrary’’ link and is available for Public Reading Room, EPA West for this ICR under Docket ID No. EPA– review in the Commission’s Public Building Room 3334, 1301 Constitution HQ–OECA–2008–0696 which is Reference Room in Washington, DC. Avenue, NW., Washington, DC 20004. available for online viewing at http:// There is an ‘‘eSubscription’’ link on the Such deliveries are only accepted www.regulations.gov, or in person Web site that enables subscribers to during the Docket’s normal hours of viewing at the Enforcement and receive e-mail notification when a operation, and special arrangements Compliance Docket in the EPA Docket Center (EPA/DC), EPA West, Room document is added to a subscribed should be made for deliveries of boxed 3334, 1301 Constitution Ave., NW., docket(s). For assistance with any FERC information. Online service, please e-mail Washington, DC. The EPA/DC Public [email protected], or call Instructions: Direct your comments to Reading Room is open from 8:30 a.m. to (866) 208–3676 (toll free). For TTY, call Docket ID No. EPA–HQ–OECA–2008– 4:30 p.m., Monday through Friday, (202) 502–8659. 0696. EPA’s policy is that all comments excluding legal holidays. The telephone Comment Date: 5 p.m. Eastern Time received will be included in the public number for the Reading Room is 202– on October 16, 2008. docket without change and may be 566–1744, and the telephone number for made available online at http:// the Enforcement and Compliance Nathaniel J. Davis, Sr., www.regulations.gov, including any Docket is 202–566–1752. Deputy Secretary. personal information provided, unless Use http://www.regulations.gov to [FR Doc. E8–22856 Filed 9–29–08; 8:45 am] the comment includes information BILLING CODE 6717–01–P obtain a copy of the draft collection of claimed to be Confidential Business information, submit or view public Information (CBI) or other information comments, access the index listing of whose disclosure is restricted by statute. the contents of the docket, and to access ENVIRONMENTAL PROTECTION Do not submit information that you AGENCY those documents in the public docket consider to be CBI or otherwise that are available electronically. Once in [EPA–HQ–OECA–2008–0696; FRL–8722–7] protected through http:// the system, select ‘‘search,’’ then key in www.regulations.gov or e-mail. The the docket ID number identified in this Agency Information Collection http://www.regulations.gov Web site is document. Activities; Proposed Collection; an ‘‘anonymous access’’ system, which Comment Request; Reporting and means EPA will not know your identity What Information Is EPA Particularly Recordkeeping Requirements for the or contact information unless you Interested in? Enforcement Policy Regarding the Sale provide it in the body of your comment. and Use of Aftermarket Catalytic Pursuant to section 3506(c)(2)(A) of If you send an e-mail comment directly the PRA, EPA specifically solicits Converters; EPA ICR No.1292.08, OMB to EPA without going through http:// Control No. 2060–0135 comments and information to enable it www.regulations.gov your e-mail to: AGENCY: Environmental Protection address will be automatically captured (i) Evaluate whether the proposed Agency. and included as part of the comment collection of information is necessary ACTION: Notice. that is placed in the public docket and made available on the Internet. If you for the proper performance of the functions of the Agency, including SUMMARY: In compliance with the submit an electronic comment, EPA whether the information will have Paperwork Reduction Act (PRA) (44 recommends that you include your practical utility; U.S.C. 3501 et seq.), this document name and other contact information in announces that EPA is planning to the body of your comment and with any (ii) Evaluate the accuracy of the submit a request to renew an existing disk or CD-ROM you submit. If EPA Agency’s estimate of the burden of the approved Information Collection cannot read your comment due to proposed collection of information, Request (ICR) to the Office of technical difficulties and cannot contact including the validity of the Management and Budget (OMB). This you for clarification, EPA may not be methodology and assumptions used; ICR is scheduled to expire on December able to consider your comment. (iii) Enhance the quality, utility, and 31, 2008. Before submitting the ICR to Electronic files should avoid the use of clarity of the information to be OMB for review and approval, EPA is special characters, any form of collected; and soliciting comments on specific aspects encryption, and be free of any defects or of the proposed information collection (iv) Minimize the burden of the viruses. For additional information as described below. collection of information on those who about EPA’s public docket visit the EPA DATES: Comments must be submitted on are to respond, including through the Docket Center homepage at http:// use of appropriate automated electronic, or before December 1, 2008. www.epa.gov/epahome/dockets.htm. ADDRESSES: Submit your comments, mechanical, or other technological identified by Docket ID No. EPA–HQ– FOR FURTHER INFORMATION CONTACT: Ross collection techniques or other forms of OECA–2008–0696 by one of the Ruske, Air Enforcement Division, information technology, e.g., permitting following methods: (2242A), Environmental Protection electronic submission of responses. In • http://www.regulations.gov: Follow Agency, 1200 Pennsylvania Ave., NW., particular, EPA is requesting comments the on-line instructions for submitting Washington, DC 20460; telephone from very small businesses (those that comments. number: (202) 564–1033; fax number: employ less than 25) on examples of • E-mail: [email protected]. (202) 564–0069; e-mail address: specific additional efforts that EPA • Fax: 202–566–9744 [email protected]. could make to reduce the paperwork • Mail: Enforcement and Compliance burden for very small businesses Docket and Information Center (ECDIC), SUPPLEMENTARY INFORMATION: affected by this collection.

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What Should I Consider When I enforcement policy (51 FR 28114– tagged with identifying information and Prepare My Comments for EPA? 28119, 28133 (Aug. 5, 1986); 52 FR be kept for 15 days. You may find the following 42144 (Nov. 3, 1987)), the manufacture, EPA allows the use of pre-printed suggestions helpful for preparing your sale or installation of aftermarket documents or computer-generated comments: catalytic converters (catalysts) not documents. All the recordkeeping under 1. Explain your views as clearly as equivalent to new original equipment the policy is authorized by section 114 (OE) catalysts would constitute a possible and provide specific examples. of the Act, 42 U.S.C. 7414 and section violation of the Act. However, because 2. Describe any assumptions that you 208 of the Act, 42 U.S.C. 7542. Parties replacement OE catalysts are expensive, used. who comply with these policies are many consumers had elected to not 3. Provide copies of any technical replace catalysts that malfunctioned allowed to install aftermarket catalysts information and/or data you used that subsequent to the expiration of the instead of OE catalysts. Confidentiality support your views. emissions warranty on their vehicles. provisions are found at 40 CFR part 2. 4. If you estimate potential burden or The Agency believes that allowing the These requirements have been in effect costs, explain how you arrived at the installation of aftermarket catalysts on for over 10 years. Startup costs have estimate that you provide. older vehicles can be environmentally been completed. The proposed ICR 5. Offer alternative ways to improve beneficial if the Agency can be assured utilizes assumptions that are the same the collection activity. that the aftermarket catalysts meet as the previous ICR. An agency may not 6. Make sure to submit your certain standards and if installers are conduct or sponsor, and a person is not comments by the deadline identified accountable to select the proper required to respond to, a collection of under DATES. aftermarket catalyst for each vehicle information unless it displays a 7. To ensure proper receipt by EPA, application. Manufacturers of new currently valid OMB control number. be sure to identify the docket ID number aftermarket catalysts are required, on a The OMB control numbers for EPA’s assigned to this action in the subject one-time basis, for each catalyst line regulations are listed in 40 CFR part 9 line on the first page of your response. manufactured, to identify the catalyst and 48 CFR chapter 15. You may also provide the name, date, physical specifications and summarize and Federal Register citation. Burden Statement: The annual public pre-production testing of the prototype. reporting and recordkeeping burden for What Information Collection Activity or The original policy required that, this collection of information is ICR Does This Apply to? once production had begun, the estimated to average 7 hours per manufacturer would submit to EPA on Affected entities: Entities potentially response. Burden means the total time, a semi-annual basis the number of each effort, or financial resources expended affected by this action are the type of aftermarket catalyst manufacturers of new aftermarket motor by persons to generate, maintain, retain, manufactured and a summary of or disclose or provide information to or vehicle catalytic converters and information contained on warranty reconditioners of used motor vehicle for a Federal agency. This includes the cards or, at the option of the respondent, time needed to review instructions; catalytic converters. The SIC code is copies of warranty cards for all develop, acquire, install, and utilize 346. The other respondents are converters sold. This reporting technology and systems for the purposes automobile exhaust repair facilities. regarding sales and warranty of collecting, validating, and verifying Their SIC code is 7533. information was eliminated in March information, processing and Title: Reporting and Recordkeeping 1999, with the stipulation that records maintaining information, and disclosing Requirements for the Enforcement must be maintained and the information Policy Regarding the Sale and Use of submitted to EPA upon request. and providing information; adjust the Aftermarket Catalytic Converters On a one-time basis, companies that existing ways to comply with any ICR numbers: EPA ICR No. 1292.08, recondition used catalysts (catalyst previously applicable instructions and OMB Control No. 2060–0135. reconditioners) must report the identity requirements which have subsequently ICR status: This ICR is currently of the company and a description of the changed; train personnel to be able to scheduled to expire on December 31, test bench used for testing used catalytic respond to a collection of information; 2008. An Agency may not conduct or converters and the intended vehicle search data sources; complete and sponsor, and a person is not required to application(s) for each converter type. review the collection of information; respond to, a collection of information, All used converters must be tested and transmit or otherwise disclose the unless it displays a currently valid OMB individually to ensure they are still information. control number. The OMB control functional. Additionally, the original The ICR provides a detailed numbers for EPA’s regulations in title 40 policy required catalyst reconditioners explanation of the Agency’s estimate, of the CFR, after appearing in the to report on a semi-annual basis the which is only briefly summarized here: Federal Register when approved, are names and addresses of distributors Estimated total number of potential listed in 40 CFR part 9, are displayed along with the number of each type of respondents: 30,014. either by publication in the Federal converter sold to each distributor. This Register or by other appropriate means, reporting requirement was eliminated in Frequency of response: Annual. such as on the related collection March 1999, with the stipulation that Estimated total average number of instrument or form, if applicable. The records must be maintained and the responses for each respondent: 1. display of OMB control numbers in information submitted to EPA upon Estimated total annual burden hours: certain EPA regulations is consolidated request. in 40 CFR part 9. Companies that install aftermarket 212,101 hours. Abstract: Section 203(a)(3) of the catalysts have no reporting Estimated total annual costs: Clean Air Act (Act) prohibits removing requirements, but for 6 months must $676,000. This includes an estimated or rendering inoperative automobile keep copies of installation invoices and burden cost of $390,000 and an emission control devices or elements of records that show the reason an estimated cost of $286,000 for capital design. But for the adoption of the aftermarket catalyst installation was investment or maintenance and aftermarket catalytic converter appropriate. Removed catalysts must be operational costs.

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Are There Changes in the Estimates PR Notice. Rather than develop electronically through the Internet From the Last Approval? additional guidance, EPA believes it is under the ‘‘Federal Register’’ listings at There is anticipated to be no change better to allocate its resources to other http://www.epa.gov/fedrgstr. initiatives which should improve in the hours in the total estimated II. Background respondent burden compared with that pesticide labeling in ways that enhance users’ understanding of and ability to EPA is committed to ensuring that identified in the ICR currently approved pesticide labeling communicates to the by OMB. use products safely and effectively. Thus, the Agency will continue to user information on how to use the What Is the Next Step in the Process for evaluate applications proposing to add product safely and effectively. The This ICR? labeling containing third-party Agency is devoting considerable resources to improving the content and EPA will consider the comments endorsements or cause marketing claims design of the labeling of currently received and amend the ICR as on a case-by-case basis to ensure that approved pesticide products in order to appropriate. The final ICR package will the applicant has provided sufficient meet this goal. These efforts address not then be submitted to OMB for review information to allow EPA to determine only guidance about what information and approval pursuant to 5 CFR whether products containing such should appear in labeling, but also how 1320.12. At that time, EPA will issue claims meet the standards for EPA receives and reviews labeling and another Federal Register notice registration. how labeling is communicated to users. FOR FURTHER INFORMATION CONTACT: pursuant to 5 CFR 1320.5(a)(1)(iv) to In the Federal Register of October 31, announce the submission of the ICR to Michelle DeVaux, Immediate Office 2007 (72 FR 61638) (FRL–8152–6), EPA OMB and the opportunity to submit (7501P), Office of Pesticide Programs, issued for public comment a draft additional comments to OMB. If you Environmental Protection Agency, 1200 Pesticide Registration Notice (PR have any questions about this ICR or the Pennsylvania Ave., NW., Washington, Notice) entitled ‘‘Label Statements approval process, please contact the DC 20460–0001; telephone number: Regarding Third-Party Endorsements & technical person listed under FOR (703) 308–5891; fax number: (703) 308– Cause Marketing.’’ The draft PR Notice FURTHER INFORMATION CONTACT. 4776; e-mail address: described a proposed framework for Dated: September 24, 2008. [email protected]. evaluating proposed statements and Granta Y. Nakayama, SUPPLEMENTARY INFORMATION: graphic material to appear on pesticide Assistant Administrator, Office of I. General Information labeling regarding third-party Enforcement and Compliance Assurance. endorsements or a relationship between [FR Doc. E8–22943 Filed 9–29–08; 8:45 am] A. Does this Action Apply to Me? the pesticide registrant and a charity BILLING CODE 6560–50–P This notice is directed to the public (‘‘cause marketing claims’’). The draft in general, although it may be of PR Notice also discussed the kinds of particular interest to those persons who information EPA would expect to ENVIRONMENTAL PROTECTION register products under the Federal receive in an application in order to AGENCY Insecticide, Fungicide, and Rodenticide determine that such claims are consistent with FIFRA. The Agency [EPA–HQ–OPP–2007–1008; FRL–8385–3] Act (FIFRA). Since other entities may also be interested, the Agency has not received 108 comments opposing the Pesticides; Notice of Intent To attempted to describe all the specific draft PR Notice, along with 11 Withdraw the Draft PR Notice on Label entities that may be affected by this comments in support of some or all of Statements Regarding Third-Party action. the draft. This Notice discusses EPA’s decision, Endorsements and Cause Marketing If you have any questions regarding the applicability of this action to a after reviewing public comments, to AGENCY: Environmental Protection particular entity, consult the person withdraw its draft PR Notice, and to Agency (EPA). listed under FOR FURTHER INFORMATION continue to support initiatives that ACTION: Notice. CONTACT. simplify and clarify labeling in order to better communicate critical information SUMMARY: EPA is withdrawing its draft B. How Can I Get Copies of this to users. Unit III. of this Notice Pesticide Registration Notice (PR Document and Other Related describes the legal framework used by Notice) entitled ‘‘Label Statements Information? EPA to evaluate proposed labeling of Regarding Third-Party Endorsements & 1. Docket. EPA has established a pesticide products. Unit IV. discusses Cause Marketing.’’ The draft PR Notice, docket for this action under docket the importance of pesticide labeling and issued for public comment in October identification (ID) number EPA–HQ– initiatives the Agency is taking to 2007, contained a description of the OPP–2007–1008. Publicly available improve pesticide labeling. Unit V. Agency’s proposed framework for docket materials are available either in discusses the draft PR Notice and public evaluating proposed statements and the electronic docket at http:// comments received, and Unit VI. graphic material to appear on pesticide www.regulations.gov, or, if only explains EPA’s position on the kinds of labeling regarding third-party available in hard copy, at the Office of cause marketing claims and third-party endorsements or a relationship between Pesticide Programs (OPP) Regulatory endorsements as described in the PR the pesticide registrant and a charity Public Docket in Rm. S–4400, One Notice and the basis for this position. (‘‘cause marketing claims’’) and the Potomac Yard (South Bldg.), 2777 S. In sum, consistent with its mandate, kinds of information EPA would expect Crystal Dr., Arlington, VA. The hours of EPA will accept and review all to receive in applications to add such operation of this Docket Facility are applications for new or amended claims to pesticide labeling. Public from 8:30 a.m. to 4 p.m., Monday pesticide labeling, including those comments on the draft raised serious through Friday, excluding legal proposing to add third-party issues, leading the Agency to conclude holidays. The Docket Facility telephone endorsements or cause marketing that considerably more information number is (703) 305–5805. claims. After review of public would likely be needed to support such 2. Electronic access. You may access comments, however, the Agency has claims than was described by the draft this Federal Register document decided that such claims are unlikely to

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enhance users’ ability to use a pesticide Two other sections of FIFRA relating formal process begins when a safely and effectively. Because it does to the labeling of pesticide products manufacturer submits an application to not wish to encourage such claims, EPA contain important provisions that register a pesticide. The application has decided it is not appropriate to issue establish the link between registration must contain required test data, guidance on what information is needed decisions and pesticide use. Under including information on the pesticide’s to support such applications. If EPA FIFRA section 12(a)(2)(G), it is unlawful chemistry, environmental fate, toxicity receives such an application, the for any person ‘‘to use any registered to humans and wildlife, and its Agency expects to decide on a case-by- pesticide in a manner inconsistent with potential for human exposure. The case basis both what information would its labeling.’’ To reinforce this authority, Agency also requires a copy of the be sufficient to support the application FIFRA section 12(a)(2)(A) also declares proposed labeling, including directions and whether a product containing such it unlawful for any person to ‘‘detach, for use, and appropriate warnings. Since a claim would meet the applicable alter, deface or destroy, in whole or in users are required to comply with the statutory standard for approval. part, any labeling required under directions for use and restrictions on a [FIFRA],’’ i.e., the labeling approved as product’s labeling, EPA uses the III. Legal Framework part of EPA’s registration decision. labeling to define how the pesticide EPA regulates the sale, distribution, Thus, EPA’s registration decisions would be used and thus how people and and use of pesticide products under the regarding approved labeling become the the environment would be exposed to Federal Insecticide, Fungicide, and primary vehicle by which EPA the pesticide. Rodenticide Act (FIFRA). With certain establishes enforceable requirements on As required by FIFRA section 3(c)(4), minor exceptions, every pesticide the use of a pesticide. the Agency announces the receipt of product must be ‘‘registered’’ by EPA In addition, FIFRA section 12(a)(1)(E) applications for products that contain a before it may lawfully be sold or prohibits the sale or distribution of any new active ingredient or change a use distributed in the United States. FIFRA pesticide or device which is pattern and invites public comment sections 3(a) and 12(a)(1)(A). FIFRA ‘‘misbranded.’’ FIFRA section 2(q) through a Federal Register Notice. Once section 3(c)(1) requires an applicant for contains a lengthy definition explaining an application is received, EPA registration to file with EPA, among when a pesticide should be considered processes it and conducts an evaluation, other things, ‘‘a statement which ‘‘misbranded,’’ including when: which includes a detailed review of includes— . . . (C) a complete copy of scientific data to determine the potential (1)(A) its labeling bears any statement, impact on human health and the the labeling, a statement of all claims to design or graphic representation relative environment. The assessment may be made for [the pesticide] . . . .’’ Under thereto or to its ingredients which is false or undergo peer review by a panel of FIFRA section 3(c)(5), EPA may register misleading in any particular; . . . scientific experts. The Agency considers a pesticide, i.e., approve a license (E) any word, statement, or other the risk assessments and results of any authorizing the sale and distribution of information required by or under the authority of [FIFRA] to appear on the label peer review, reviews risk mitigation the pesticide product, if EPA determines or labeling is not prominently placed thereon measures, and makes risk management that: with such conspicuousness (as compared and regulatory decisions. (A) [the pesticide’s] composition is such as with other words, statements, designs, or In the decision-making process, EPA to warrant the proposed claims made for it; graphic matter in the labeling) and in such evaluates the application to determine terms as to render it likely to be read and (B) its labeling and other material required whether the proposed use(s) meets the to be submitted comply with the understood by the ordinary individual under customary conditions of purchase and use; Agency’s standards for human health, requirements of [FIFRA]; worker and environmental protection. If (C) it will perform its intended function (F) the labeling accompanying it does not without unreasonable adverse effects on the contain directions for use which are the application does not contain enough environment; and necessary for effecting the purpose for which evidence to prove that the pesticide (D) when used in accordance with the product is intended and if complied with, meets all of these standards, EPA widespread and commonly recognized . . . are adequate to protect health and the communicates to the applicant the need practice it will not generally cause environment. for more or better refined data, labeling unreasonable adverse effects on the The language in FIFRA section modifications, or additional use environment. 3(c)(5)(B), in effect, makes the restrictions. Once the applicant has misbranding definition one of the demonstrated that a proposed product The labeling of a pesticide plays a criteria for determining the acceptability meets the statutory standards, EPA critical role in assuring the safe use of of a pesticide for registration. establishes a tolerance if the product is pesticide products. FIFRA section In summary, EPA has the authority intended to be used on food and 2(p)(1) defines the ‘‘label’’ of a pesticide and responsibility to register pesticides approves the registration with any risk as ‘‘the written, printed, or graphic according to specific standards, to mitigation necessary, and publishes the matter on, or attached to, the pesticide ensure that the products registered, decision in the Federal Register Notice. or device or any of its containers or when used according to the labeling, EPA devotes significant resources to the wrappers.’’ FIFRA section 2(p)(2) will not generally cause unreasonable regulation of pesticides to ensure the defines ‘‘labeling’’ to mean ‘‘all labels adverse effects. The importance of highest levels of protection of the public and all other written, printed or graphic labeling to convey the end results of the and the environment. matter (A) accompanying the pesticide registration process to the user is Product labeling is the primary or device at any time; or (B) to which paramount. mechanism used by EPA to reference is made on the label . . . .’’ communicate critical information to the Typically, the label of a pesticide IV. Registration & Labeling pesticide user. The labeling contains use contains the product name, brand, or In order to protect human health and directions, health and safety trademark; an ingredients statement; a the environment from unreasonable information, and instructions for proper statement of net weight or contents; adverse effects that might be caused by storage and disposal. Users are obligated directions for use; and hazard and pesticides, the Agency has developed to follow the use instructions on the precautionary statements. See EPA and operates a rigorous and demanding label and labeling for registered regulations at 40 CFR part 156. process for registering pesticides. The products. Different program

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stakeholders, including states, the effect wholesale improvements in marketing claim became widely known, Pesticide Program Dialogue Committee, labeling language, content, and a number of organizations expressed members of the Consumer Labeling enforceability. The goal of these their opposition to the specific decision Initiative, and the public, however, have initiatives is to simplify labels, reducing and to any general policy that would raised concerns with the current state of the amount of unnecessary information, allow cause marketing claims on the pesticide labels. External stakeholder and to clarify labeling text, in order to labeling of pesticide products. The feedback has suggested that labels need better communicate critical information groups opposing the Red Cross claim on to be simpler, especially for products at to the user. Clorox labels included the Association the consumer level, in order for users to of American Pesticide Control Officials, fully understand them. To better V. Consideration of Cause Marketing Beyond Pesticides, Pesticide Action communicate the required information and Third-Party Claims Network North America, Center for and to avoid distractions to the A. Clorox’s Proposed Claims Environmental Health, American Bird consumer, stakeholders have suggested Conservancy, Pesticide Education In January 2006, The Clorox Company that EPA reduce unnecessary label Project, Strategic Counsel on Corporate (Clorox) submitted an application to content and provide clear, concise and Responsibility, Environmental Health EPA to add cause marketing language to easy-to-read information. Fund, the Endocrine Disruption the labels of some of their registered In addition to stakeholder feedback on Exchange, and Northwest Coalition for pesticide products. The proposed label formatting, EPA has received input Alternatives to Pesticides, as well as language described a philanthropic from states on the enforceability of label Attorneys General in six states. In April language. States, as co-regulators with relationship between Clorox and the 2007, the Minnesota Department of EPA, are responsible for enforcing many American Red Cross (Red Cross). In a Agriculture refused to accept Clorox pesticide-related laws. There are several meeting between EPA and Clorox in products with the Red Cross charity standing venues through which states March 2006, Clorox described the labels for distribution in Minnesota. can raise concerns to EPA; while many partnership agreement into which they This topic was discussed by the types of issues are covered in these had entered with the Red Cross, Pesticide Program Dialogue Committee formal venues, states often raise discussed what cause marketing (PPDC) in May 2007, and in meetings questions on label language on a case- language they were currently using on with various other stakeholder groups. by-case basis as well. When developing non-pesticide products, and presented a The PPDC, established under the enforcement cases, states often request label mock-up for an antimicrobial Federal Advisory Committee Act, interpretations of unclear or vague bleach product. In this meeting, EPA consists of a diverse group of labeling language. As a consequence of expressed concern that consumers stakeholders and provides an these comments, EPA is becoming might interpret the Red Cross symbol on opportunity for feedback to the increasingly concerned about the the label as an implied safety claim. Agency’s pesticide program on various effectiveness of labeling on currently Clorox provided an additional pesticide regulatory, policy, and registered pesticides. EPA recognizes presentation in July 2006, which program implementation issues. the critical role that states play in included a toxicological profile of Comments from the PPDC members enforcing pesticide label language and is bleach; a National Capital Area Poison were divided; some spoke in support of pursuing efforts to reduce the burden on Control Center presentation regarding EPA’s decision, but others expressed states to continuously seek incidents involving bleach; and strong objections. See http:// interpretations of vague language. information from a consumer survey www.epa.gov/pesticides/ppdc/2007/ EPA agrees with stakeholders that indicating that the labeling would not may2007/may2007.htm. product labeling is a crucial alter consumer behavior in ways that communications tool between EPA and could lead to misuse. C. Proposed Pesticide Registration (PR) the user. In recognition of the issues After review of the information Notice raised, the Agency has supported a described above, EPA approved Red The Agency developed a proposed number of efforts to improve labeling. Cross cause marketing claim language framework and guidelines for evaluating These include issuing guidance on on the label of certain Clorox products. requests to add cause marketing claims environmental hazard general labeling The decision particularly relied on and third-party endorsements to statements on outdoor use products (73 EPA’s expectation, which was based on pesticide labeling. EPA proposed that, at FR 29503, May 21, 2008) (FRL–8362–3), the consumer survey research, that a minimum, the labeling of a registered labeling statements on products used for consumers would not interpret the Red product must be effective in providing adult mosquito control (70 FR 12881, Cross symbol on labels to mean that the both use instructions and necessary March 16, 2005) (FRL–7695–8), labeling product was safe. The decision also safety information. The Agency issued a of pesticide products under the National relied on an assessment of the likely draft PR Notice for comment on October Organic Program (68 FR 10477, March 5, health consequences were the products 31, 2007 (72 FR 61638). The draft PR 2003) (FRL–7281–6), and proposed to be misused as a result of the presence Notice defined what the Agency guidance on the use of antimicrobial of the cause marketing labeling and considered cause marketing claims (‘‘a pesticide products in heating, consideration of whether such labeling statement describing a relationship ventilation, air conditioning and would alter consumer behavior in ways (usually philanthropic) between the refrigeration systems (71 FR 78433, that could lead to misuse. EPA registrant of the pesticide product and December 29, 2006) (FRL–8108–9). concluded that this information was another entity, usually a charity’’) and Given the importance of labeling in sufficient to support a conclusion that third-party endorsements (‘‘an communicating critical safety and use the product bearing the cause marketing expression of approval or a information to the user, EPA will language would not be ‘‘misbranded’’ recommendation to use a product made continue to pursue improvements. under FIFRA. by an entity other than the applicant/ Through internal reviews, EPA registrant’’). identified label organization as an issue B. Post-Approval Activity The legal framework of the PR Notice to be addressed. The Agency is working After EPA’s decision to approve rested primarily on the requirement that towards using resources efficiently to Clorox’s application to add the cause EPA determine that proposed pesticide

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labeling would not be misbranded Commenters cited the FIFRA definition specific guidance, or implement under FIFRA. Recommendations for of misbranding (section 2(q)(1)(A)), requirements, for applicants to ensure data to be submitted for consideration claiming that, under this provision, that the information provided would included mock labels, documentation of cause marketing statements or third- prove the absence of any implied the relationship between the registrant party endorsements are inherently endorsement and false or misleading and charity or third-party endorser, misleading. In addition, they cited 40 claims. They also suggested that discussion of potential consumer CFR 156.10(a)(5)(iii) which states that information should be required to prove impacts, consumer market research, false and misleading statements include that the proposed cause marketing claim disclaimer language to minimize ones ‘‘about the value of the product or third-party endorsement would not misunderstanding by consumers, and other than as a pesticide or device,’’ detract or distract from the required other supporting information. The which could be implied by a cause labeling elements. intent of the PR notice was to set a high marketing claim or third-party Lastly, some commenters opposed the bar for consideration of claims that may endorsement. Commenters argued that proposal because EPA decisions to have a higher likelihood to be consumers may interpret the logo of an allow cause marketing claims and third- considered false or misleading, or as organization they trust or from a party endorsements could conflict with detracting from use directions or other celebrity as an implied endorsement. In states’ decisions. They believed that important information on the label or addition, they argued that vulnerable there was insufficient meaningful labeling. The proposed guidance populations such as elderly people, consultation with the states through the outlined how applicants or registrants those with low literacy, and children State FIFRA Issues Research and could demonstrate that the proposed may rely on the logo as the primary Evaluation Group. Allowing these types language and logos did not distract from selection criteria, regardless of the of claims could make the Federal safe use instructions or violate the intended use of the product. standard more lenient than some state misbranding standard. As discussed above, EPA devotes regulations, and could prevent states significant resources to evaluation of from denying registration of these D. Public Comments on the PR Notice labels and labeling and registration of products if they find a risk concern. EPA received a total of 119 comments products. Commenters argued that the 2. Support. Comments in support of on the draft PR Notice. Along with other additional level of review necessary to the draft PR Notice fell into two background information, the comments evaluate a cause marketing claim or categories. One group recommended appear in the public docket for this third-party endorsement would divert that EPA limit the scope of the draft PR action: EPA–HQ–OPP–2007–1008. Of Agency resources from evaluations of Notice only to cause marketing claims those, 108 opposed the draft PR Notice more important elements of the label and that EPA should issue a final PR and 11 supported some or all of the and labeling required by the statute and Notice with only modest changes to the components of the draft PR Notice. The regulation. The comments made a draft. As for third-party endorsements, following is a summary of the comments similar argument with respect to the these comments recommended that EPA received. allocation of resources in enforcement establish a public engagement process 1. Opposition. Those opposed to the programs. Commenters argued that the for further consideration of the issues PR Notice argued that labels should be resources of the Agency’s pesticide raised by such labeling. The other group used only to convey use instructions program should not be diverted from the supported changing the emphasis of the and safety information, not unnecessary fundamental mission of protecting PR Notice to focus on third-party endorsements or logos. They also noted public health and the environment to endorsements from established that the labels of many (if not most) evaluate claims that are designed as organizations and environmentally products are already crowded, and marketing or fundraising campaigns. preferable or ‘‘green’’ certification additional information would take space Commenters also asserted that the programs. away or distract from elements required draft PR Notice conflicted with EPA’s Those who supported approving the by statute and regulation. These claims Label Review Manual (http:// PR Notice for cause marketing claims would be designed to draw consumers’ www.epa.gov/oppfead1/labeling/lrm/), a argued that this type of claim should be attention, potentially distracting them policy document on label and labeling held to the same standards as any other from the important health and safety content that uses the Red Cross logo as non-FIFRA text added to the label. They information and undermining the an example of a symbol that implies asserted that no additional information protections implemented through label safety or non-toxicity, and could be (beyond the current requirements) requirements. Commenters also asserted considered false or misleading. They should be necessary unless there is a that EPA should not become involved in requested that the existing policy be concern that the cause marketing claim corporate marketing, which falls outside followed. At the least, before accepting could have an implied safety message. the Agency’s mission of protecting claims that could be viewed as In a similar vein, they stated that human health and the environment and inconsistent with the Label Review additional publicengagement—beyond providing information on labeling to Manual and that could potentially what FIFRA mandates—would be assist with the safe use of pesticide endanger public health, commenters unnecessary and improper, because the products. Since space on labels is requested more demonstration of the public and states are not currently limited, these comments urged EPA to expected public benefit and an involved in registration decisions and it refuse to allow extraneous information explanation of why a change would be would be improper to engage outside that is not needed for product necessary. stakeholders in the case of cause identification, directions for use, or Some commenters in opposition marketing claims. other text that minimizes risk and argued that the information EPA Another group of comments maximizes efficacy. proposed to require would contain expressed support for the draft PR Some commenters also opposed the insufficient detail to allow the Agency Notice because it would make the PR Notice because they believe that to evaluate an application with a cause inclusion of third-party endorsements in logos and claims are inherently marketing claim or third-party pesticide labeling more likely. These misleading, i.e., that they imply safety endorsement. These commenters comments argued that there is an claims or greater efficacy for a product. recommended that EPA provide more Agency precedent for allowing certain

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logos or endorsements on labels. types of information would be necessary risks associated with the use of the Specifically, endorsements by the to allow the Agency to evaluate such an pesticide, among other characteristics. Organic Material Review Institute and application. In recognition of concerns EPA expects that, in general, it would be the Soil and Mulch Council were cited. about such claims’ potential impact on difficult to convince EPA to approve They also proposed that approving public health and their potential burden applications to add most types of cause- standards established by third-party on EPA resources, the Agency will marketing claims or third-party certification programs such as Design expect applicants to supply a complete endorsements. for the Environment and Green Seal justification to support the proposed Based on the experience with the would alleviate burden on EPA during additions. While it is difficult for the cause marketing claim proposed by the application review process while Agency to identify the exact types of Clorox, EPA expects that there would be providing information to consumers to information it will need in every a high level of public concern about assist them in differentiating between circumstance, applicants should future requests for consideration of such products based on environmental, understand that they must submit claims. Given the controversial and efficacy-based and other quantitative sufficient information to allow the complicated nature of these types of characteristics. Agency to determine that the desired claims, EPA believes it would benefit from consultation with states and a VI. Agency Action statements will not mislead pesticide users, especially vulnerable public comment period. Although it has The Agency has decided to withdraw subpopulations, and will not detract not been historical practice, if EPA the PR Notice describing framework for from other important language on the receives applications to add cause evaluating cause marketing claims or label. Ultimately, the applicant has the marketing claims or third-party third-party endorsements. After responsibility to provide the Agency endorsements that have enough reviewing public comments, the Agency with sufficient information to allow the information to support the approval of agrees that cause marketing claims and Agency to make the necessary findings. such a claim, it would likely offer its third-party endorsements as outlined in See 40 CFR part 158. If, upon initial state partners, as well as the public, an the draft PR Notice generally would not review, the Agency finds that the opportunity to comment. Any public contribute meaningfully to improving applicant has not met its burden, EPA engagement would be conducted in a protection of human health and the may request additional information manner consistent with FIFRA environment. The addition of such from the applicant to facilitate further requirements to protect Confidential statements is not likely to enhance consideration of the proposal. 40 CFR Business Information (CBI). users’ ability to understand the labeling 158.75. Failure to provide requested In light of the significant interest in required to inform the user about how information could lead EPA to deny the improving users’ understanding of and to use the product safely and effectively. ability to use products safely and application. In fact, the addition of such statements effectively, EPA agrees with public could interfere with that goal. In The Agency will also review and comments that comparative safety addition, EPA recognizes that its decide on a case-by-case basis whether statements, or ‘‘green labeling,’’ on resources are limited and should be to approve such applications. As pesticide labels should be further targeted towards activities that will indicated above, the legal standards for considered as a tool. Companies have enhance the level of protection of such reviews appear in FIFRA section found that consumers are interested in human health and the environment 3(c)(5), as informed by the definition of having labeling on products indicating from pesticides. Thus, although EPA ‘‘misbranding’’ in FIFRA section 2(q). that the products meet a specific set of will review any future application it Also, as discussed above, product criteria, for example that they are safer receives, it generally discourages the labeling plays a critical role in the or environmentally preferable according submission of applications to add cause effective regulation of pesticides, and to a specific standard. Programs to set marketing claims or third-party the Agency thinks clear, simple, and standards for such green labeling endorsements. enforceable labeling is essential to include: Energy Star, Design for the In reviewing the legal framework on ensuring pesticides do not cause Environment, and Green Seal. which the PR Notice was based, the unreasonable adverse effects on the Experience also suggests that some Agency concluded that FIFRA and its environment. Since most cause consumers will alter their behavior to implementing regulations do not marketing claims or third-party use products bearing such green explicitly prohibit the inclusion of endorsements ordinarily do not provide labeling. cause marketing claims or third-party information that contributes to the safe As a first step, the Office of Pesticide endorsements in labeling, nor do they and effective use of a pesticide, EPA Programs will engage a work group differentiate between the two types of will approve applications to add cause under the Pesticide Program Dialogue claims. Therefore, EPA will continue to marketing claims or third-party Committee on comparative safety review and make decisions on endorsements only if the applicant statements or logos for pesticide product applications to for new or amended provides information to show that the labeling. This work group will address pesticide labeling using the standards in inclusion of such text will neither create interest being expressed by the public FIFRA section 3(c)(5)(A)–(D). Consistent a misleading impression in any for possible development of Agency or with existing policy, EPA will not significant subgroup of the population third-party standards regarding approve a statement in the labeling of a of people who might use or otherwise comparative product safety. The work pesticide product unless the applicant come into contact with the product nor group will make recommendations to can demonstrate that the statement is interfere with the ability of people who the full Pesticide Program Dialogue not false or misleading and that the use the product to understand how to Committee as to whether the presence of the statement detracts from use the product properly. The decision government should pursue revision of other information required on the about whether to approve the proposed the current regulations at 40 CFR labeling. addition of such labeling text would 156.10(a)(5) in order to develop or allow If EPA receives applications to add likely depend on the proposed content these types of statements or logos. such labeling to product labeling, EPA and placement of the text, the nature of EPA anticipates that these types of will decide on a case-by-case basis what the existing labeling, and the potential comparative safety statements would be

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used by consumers as tools, to assist FOR FURTHER INFORMATION CONTACT: port-related ships, trains, drayage them in differentiating between similar Roland E. Smith, Secretary to the Farm trucks, terminal equipment and harbor types of products based on distinct, Credit Administration Board, (703) 883– craft by at least 45 percent in five years. verifiable criteria. For example, a logo 4009, TTY (703) 883–4056. To that end, each port has adopted a from the National Organic Standards ADDRESSES: Farm Credit Clean Truck Program (‘‘CTP’’) as a Board could assist a grower seeking to Administration, 1501 Farm Credit Drive, component of the CAAP to address air obtain or maintain organic certification McLean, Virginia 22102–5090. pollution caused by the short haul for his/her farm. Labels could provide SUPPLEMENTARY INFORMATION: Parts of truckers that transport containers to and information about the comparative this meeting of the Board will be open from the ports, i.e., the harbor truck safety of the product as well as about its to the public (limited space available), drayage system. Each port’s CTP potential environmental impact, and parts will be closed to the public. becomes effective on October 1, 2008. allowing consumers to choose among In order to increase the accessibility to The Federal Maritime Commission products based on their preferences. Board meetings, persons requiring (‘‘Commission’’) is responsible for Along with the recommendations from assistance should make arrangements in enforcing the requirements of the Shipping Act of 1984, as amended by the PPDC work group, EPA will advance. The matters to be considered the Ocean Shipping Reform Act of 1998 consider the potential risks associated at the meeting are: with including these types of statements (‘‘Shipping Act’’). 46 U.S.C. 40101 et on pesticide labeling and the proper role Open Session seq. As the ports of Los Angeles and Long Beach operate as marine terminal of government in this type of program A. Approval of Minutes operators (‘‘MTOs’’) under the Shipping before deciding whether or not to revise • the current regulations. September 11, 2008. Act, their actions, to the extent they In summary, the Agency is committed B. New Business—Regulation impact international transportation, are subject to the Commission’s jurisdiction to ensuring that pesticide labeling is • Disclosure and Accounting utilized as a tool to communicate and, in particular, to the requirements of Requirements—Proposed Rule—12 CFR section 10 of the Shipping Act.1 critical information to the user how to Parts 619, 620, and 621. use the product safely and effectively. In While the Commission appreciates order to ensure that protection of public C. Reports the significant environmental and health and the environment remain the • public health benefits of the San Pedro OE Quarterly Report and Funding Ports CAAP, it is concerned that certain top priorities for EPA, we are not the Farm Credit System (FCS): encouraging submissions of any label Æ aspects of the ports’ CTPs may violate Financial Condition of FCS. the Shipping Act. Accordingly, the claims that detract or distract from the Æ Funding the FCS. use and safety instructions or that could Commission has determined to initiate be considered false or misleading. We Closed Session * an Investigation and Hearing of the remain committed to programs and • Supervisory and Oversight Ports’ Clean Truck Programs under section 11 of the Shipping Act with initiatives designed to improve the Activities of FCS Institutions. respect to possible violations under content, organization and enforceability Dated: September 26, 2008. section 10 of the Shipping Act. of pesticide labeling. Roland E. Smith, Secretary, Farm Credit Administration Board. San Pedro Bay Ports List of Subjects [FR Doc. E8–23077 Filed 9–26–08; 4:15 pm] The Port of Los Angeles (‘‘POLA’’), Environmental protection, BILLING CODE 6705–01–P referred to as the Los Angeles Harbor Administrative practice and procedure, Department, is a self-supporting Agricultural commodities, Pesticides department of the City of Los Angeles, and pests. FEDERAL MARITIME COMMISSION California. POLA is under the control of a five-member Board of Harbor Dated: September 24, 2008. [Docket No. 08–05] Commissioners appointed by the mayor Debra Edwards, of Los Angeles and approved by the City Director, Office of Pesticide Programs. City of Los Angeles, CA, Harbor Council, and is administered by an [FR Doc. E8–22938 Filed 9–29–08; 8:45 am] Department of the City of Los Angeles, executive director.2 POLA is the largest Board of Harbor Commissioners of the BILLING CODE 6560–50–S container port in the United States. City of Los Angeles, City of Long POLA’s annual loaded container volume Beach, California, Harbor Department for 2007 was 5.7 million twenty-foot of the City of Long Beach, and the FARM CREDIT ADMINISTRATION equivalent units (‘‘TEUs’’). Board of Harbor Commissioners of the The Port of Long Beach (‘‘POLB’’) has Farm Credit Administration Board; City of Long Beach—Possible an administrative structure similar to Regular Meeting Violations of Sections 10(B)(10), 10(D)(1) and 10(D)(4) of the Shipping 1 Section 10(d)(1) requires MTOs to establish, AGENCY: Farm Credit Administration. Act of 1984; Order of Investigation and observe, and enforce just and reasonable regulations SUMMARY: Notice is hereby given, Hearing and practices relating to or connected with receiving, handling, storing, or delivering property. pursuant to the Government in the On November 20, 2006, the governing 46 U.S.C. 41102(c). Section 10(d)(4) provides that Sunshine Act (5 U.S.C. 552b(e)(3)), of boards of the Ports of Los Angeles and an MTO may not give any undue or unreasonable preference or advantage or impose any undue or the regular meeting of the Farm Credit Long Beach voted to approve the San Administration Board (Board). unreasonable prejudice or disadvantage with Pedro Bay Ports Clean Air Action Plan respect to any person. 46 U.S.C. 41106(2). An MTO DATES AND TIME: The regular meeting of (‘‘CAAP’’). The CAAP is a broad effort may not unreasonably refuse to deal or negotiate. the Board will be held at the offices of aimed at significantly reducing the 46 U.S.C. 41106(3). the Farm Credit Administration in 2 For the purposes of this order, the City of Los health risks posed by air pollution from Angeles, the Harbor Department of the City of Los McLean, Virginia, on October 9, 2008, Angeles and the Board of Harbor Commissioners of from 9 a.m. until such time as the Board * Session Closed-Exempt pursuant to 5 U.S.C. the City of Los Angeles will be referred to as the concludes its business. 552b(c)(8) and (9). Port of Los Angeles or POLA.

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POLA. POLB is a public agency concerning the truck; ensures lease-to-own plans. State and port managed and operated by the City of compliance with parking ordinances; funds, as well as funds derived from a Long Beach Harbor Department. POLB agrees to hiring preferences for drivers Clean Truck Fee, will be used to finance is governed by the Long Beach Board of with port experience; and agrees to the truck replacement programs through Harbor Commissioners, whose five travel only on specified truck routes a Clean Truck Fund maintained by each members are appointed by the mayor of established by local municipalities or port. Long Beach and confirmed by the City the ports. Commencing October 1, 2008, a fee of Council. POLB is administered by an There are certain differences between $35 per loaded TEU, or $70 per FEU, executive director.3 POLB is the second the CTPs of the two ports. POLA will be collected from the beneficial largest port in the United States. POLB’s requires that all approved cargo owner on every container entering annual loaded container volume for concessionaires transition to providing or exiting the terminals by truck. 2007 was more than 4.9 million TEUs. port service only with company- Containers entering or leaving the ports POLA and POLB are located side-by- employee drivers. This requirement is by rail and those moving between side in San Pedro Bay and together are phased in over a 5-year period terminals at the ports are not subject to referred to as the San Pedro Bay Ports. commencing January 1, 2009. By the fee. Both ports will exempt Together they would constitute the 5th December 31, 2013, all concession collection of the fee where the truck largest container port in the world. drivers at POLA must be company hauling the container was privately While the two ports compete for employees. Independent owner- financed and is compliant with the 2007 business, they cooperate on operators will not be permitted entry to federal EPA standards and meets certain infrastructure projects and the container terminals. POLB has no conditions. Each port maintains slight environmental issues pursuant to similar mandate and will permit variations with respect to eligibility for agreements filed with the Commission. concessionaires to continue to provide the exemption depending on whether It is reported that approximately 16,800 service with either employee drivers, the truck’s fuel is diesel or an trucks, affiliated with an estimated 600– independent owner-operators or a alternative fuel such as LNG; when the combination of both, as is presently 1,200 licensed motor carriers (‘‘LMCs’’), vehicle was purchased; whether an old allowed. POLA also requires concession transport containers to and from the truck was scrapped; and whether it was applicants to submit for approval a plan ports. At present, nearly all of the trucks purchased with program funds. that limits parking to off-street are operated by independent owner Verification of eligibility and locations. No on-street parking will be operators. enforcement of access to the terminals allowed for trucks not in service. POLB, as well as collection of the Clean Truck The Clean Truck Programs on the other hand, requires applicants to Fee are to be the responsibilities of the submit a parking plan that demonstrates Central to each port’s CTP is a system MTO tenants of the ports. Provisions either the availability of off-street to control truck access to the container governing these requirements are terminals through the issuance of port parking or legal on-street parking. POLA also requires applicants to submit published in the respective tariffs of the concessions to LMCs. Each CTP ports. presently provides that after October 1, financial statements and a statement of 2008, entry to container terminals at the business experience at the port, in The Port of Los Angeles Incentive ports will be limited to licensed motor drayage service, and with owner- Program operators or driver employees, together carriers that have a concession On August 21, 2008, POLA adopted agreement.4 Carriers serving both ports with references to verify this information. POLB does not have a two additional incentives to encourage must have a separate concession from companies operating 2007 or newer each port. To obtain a concession, an similar requirement. The applications of both ports provide compliant trucks to become LMC must file an application (with a concessionaires and commit to a stated $2,500 fee for POLA, and $250 for that submission of an application does not guarantee an award of a concession. minimum of service at POLA. One POLB, plus an annual fee of $100 per incentive offers a cash payment of truck in both ports) in which it presents There are no published criteria or standards governing the granting or $20,000 for each 2007 EPA-compliant an appropriate maintenance plan for truck that is privately funded and trucks used at the port; ensures that all denial of concessions. Both ports require the LMC to register its drayage committed to service in the port drayage trucks comply with safety, regulatory market at a minimum frequency of 6 and security requirements, and that vehicles in a Drayage Truck Registry (DTR) identifying the vehicle and all of trips per week for 5 years. Carriers drivers have obtained their interested in participating were required Transportation Worker Identification its pertinent details, including the model year of the truck and its engine. to submit a letter of interest by Credential; agrees to searches; maintains September 19, 2008, stating the number prescribed insurance levels; equips Only vehicles registered in the DTR will be permitted entry to the container of eligible trucks operated, the number trucks with prescribed devices to allow to be initially committed to port service, for the electronic reading of certain data terminals. Also as part of their CTPs, both ports and the number to be added monthly. have adopted a truck ban by which The other incentive provides for a cash 3 For the purposes of this order, the City of Long Beach, California, the Harbor Department of the trucks older than model year 1989 will payment of $10 per dray by a 2007 EPA- City of Long Beach and the Board of Harbor be prohibited from entering terminal compliant truck, if the truck achieves a Commissioners of the City of Long Beach will be premises on and after October 1, 2008. minimum target of 600 qualified drays referred to as the Port of Long Beach or POLB. Thereafter, the program progressively per year in and out of POLA and POLB, 4 The concession requirement has been challenged in federal court. See American Trucking bans trucks that do not meet 2007 and 300 of those drays are for POLA Associations v. City of Los Angeles, et al., No. 08– federal Environmental Protection cargo. There is a per truck limit on this 04920, C.D. Calif. The district court has denied a Agency (‘‘EPA’’) emission standards by incentive of $10,000 for the year request for preliminary injunction, and this January 1, 2012. Each port has adopted commencing October 1, 2008. Incentive decision has been appealed. The outcome of the legal action by the American Trucking Associations truck replacement programs to assist payments for both programs will be does not affect the Commission’s authority to truckers to purchase or upgrade to 2007- made from the Clean Truck Fund and institute this investigation. compliant trucks through grants and other port funds. Successful applicants

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for the payment will be selected at the LMCs providing drayage service to the application for a concession, but not sole discretion of the port staff. Port utilize only employee drivers; publishing standards or criteria by 2. Whether Respondent Port of Los which such application will be granted Commission Authority Angeles provides an undue or or denied; A marine terminal operator is defined unreasonable preference or advantage or 7. Whether Respondent Port of Los as ‘‘a person engaged in the United imposes any undue or unreasonable Angeles violated section 10(b)(10) of the States in the business of furnishing prejudice or disadvantage with respect Shipping Act by refusing to deal or wharfage, dock, warehouse or other to any person in violation of section negotiate with motor carriers otherwise terminal facilities in connection with a 10(d)(4) of the Shipping Act by authorized to provide drayage service at common carrier, or in connection with implementing, on a phased-in basis, a the port who conduct their port a common carrier and a water carrier ban on independent owner operators operations using independent owner- subject to sub-chapter 11 of chapter 135 providing drayage service at the Port; operators; of title 49, United States Code.’’ 46 3. Whether Respondent Port of Los 8. Whether, in the event one or more U.S.C. 40102(14). Section 10(d)(1) of the Angeles has failed to establish, observe violations of section 10 of the Shipping Shipping Act states that a ‘‘[c]ommon and enforce just and reasonable Act are found, civil penalties should be carrier, ocean transportation regulations and practices in violation of assessed and, if so, the identity of the intermediary, or marine terminal section 10(d)(1) of the Shipping Act or entities against whom the penalties operator may not fail to establish, provides an undue or unreasonable should be assessed and the amount of observe, and enforce just and reasonable preference or advantage or imposes any the penalties to be assessed; regulations and practices relating to or undue or unreasonable prejudice or 9. Whether, in the event violations are connected with receiving, handling, disadvantage with respect to any person found, appropriate cease and desist storing, or delivering property.’’ 46 in violation of section 10(d)(4) of the orders should be issued. U.S.C. 41102(c). Under section 10(d)(4), Shipping Act, by making payments to It is further ordered, That a public ‘‘[a] marine terminal operator may not certain selected motor carriers as hearing be held in this proceeding and give any undue or unreasonable incentive to provide drayage service at that this matter be assigned for hearing preference or advantage or impose any the port, but not to others; before an Administrative Law Judge of undue or unreasonable preference or 4. Whether Respondent Port of Los the Commission’s Office of advantage or impose any undue or Angeles has failed to establish, observe Administrative Law Judges at a date and unreasonable prejudice or disadvantage and enforce just and reasonable place to be hereafter determined by the with respect to any person;’’ 46 U.S.C. regulations and practices in violation of Administrative Law Judge in 41106(2). Section 10(b)(10) of the section 10(d)(1) of the Shipping Act or compliance with Rule 61 of the Shipping Act prohibits a marine provides an undue or unreasonable Commission’s Rules of Practice and terminal operator from unreasonably preference or advantage or imposes any Procedure, 46 CFR 502.61. The hearing refusing to deal or negotiate. 46 U.S.C. undue or unreasonable prejudice or shall include oral testimony and cross- 41106(3). disadvantage with respect to any person examination in the discretion of the The Commission is responsible for in violation of section 10(d)(4) of the presiding Administrative Law Judge ensuring that the practices and Shipping Act, by denying access to only after consideration has been given regulations of marine terminal operators terminal facilities to drayage carriers by the parties and the presiding are just and reasonable. Under Section absent port-approved arrangements to Administrative Law Judge to the use of 10(d), a regulation or practice must be park their vehicles on off-street alternative forms of dispute resolution, tailored to meet its intended purpose. It premises; and upon a proper showing that there may have a valid purpose and yet be 5. Whether Respondents Port of Long are genuine issues of material fact that unreasonable because it goes beyond Beach and Port of Los Angeles have cannot be resolved on the basis of sworn what is necessary to achieve that failed to establish, observe and enforce statements, affidavits, depositions, or purpose. Distribution Services, Ltd. v. just and reasonable regulations and other documents or that the nature of TransPacific Freight Confer. of Japan, practices in violation of section 10(d)(1) the matters in issue is such that an oral 24 SRR 714, 722 (FMC, 1988). The test of the Shipping Act, or give an undue hearing and cross-examination are of reasonableness as applied to MTOs or unreasonable preference or advantage necessary for the development of an requires that actions and practices ‘‘be or impose any undue or unreasonable adequate record; otherwise lawful, not excessive and prejudice or disadvantage with respect It is further ordered, That the reasonably related, fit and appropriate to any person in violation of section following entities be designated as to the ends in view.’’ Exclusive Tug 10(d)(4) of the Shipping Act, by Respondents in this proceeding: Arrangements in Port Canaveral, 29 SRR exempting from the $35/TEU Clean City of Los Angeles, California; 487, 489 (FMC, 2002) and West Coast Truck Fee those beneficial cargo owners Harbor Department of the City of Los Maritime Association v. Port of whose cargo is moved by privately Angeles; Board of Harbor Houston, 18 SRR 783, 790 (1978), 610 financed, 2007 compliant trucks, while Commissioners of the City of Los F2d 100 (D.C. Cir. 1979), cert. denied, imposing fees on those beneficial cargo Angeles; City of Long Beach, California; 449 U.S. 822 (1980). owners whose cargo is moved by Harbor Department of the City of Long Now therefore, it is ordered, That publicly financed 2007 compliant trucks Beach; Board of Harbor Commissioners pursuant to section 11(c) of the and trucks manufactured between 1989 of the City of Long Beach; Shipping Act of 1984, 46 U.S.C. and 2006; It is further ordered, That the 41303(c), an investigation is instituted 6. Whether Respondents Port of Long Commission’s Bureau of Enforcement be to determine: Beach and Port of Los Angeles have designated a party to this proceeding; 1. Whether Respondent Port of Los failed to establish, observe and enforce It is further ordered, That notice of Angeles has failed to establish, observe, just and reasonable regulations and this Order be published in the Federal and enforce just and reasonable practices in violation of section 10(d)(1) Register, and a copy be served on all regulations and practices in violation of of the Shipping Act by requiring motor parties of record; section 10(d)(1) of the Shipping Act by carriers providing container drayage It is further ordered, That other mandating, on a phased-in basis, that service at the ports to submit an persons having an interest in

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participating in this proceeding may file acquire voting shares of CenterBank of Board of Governors of the Federal Reserve petitions for leave to intervene in Jacksonville, N.A., both of Jacksonville, System, September 25, 2008. accordance with Rule 72 of the Florida. Robert deV. Frierson, Commission’s Rules of Practice and Board of Governors of the Federal Reserve Deputy Secretary of the Board. Procedure, 46 CFR 502.72; System, September 25, 2008. [FR Doc.E8–22929 Filed 9–29–08; 8:45 am] It is further ordered, That all further Robert deV. Frierson, BILLING CODE 6210–01–S notices, orders, or decisions issued by or Deputy Secretary of the Board. on behalf of the Commission in this [FR Doc. E8–22930 Filed 9–29–08; 8:45 am] proceeding, including notice of the time and place of hearing or prehearing BILLING CODE 6210–01–S DEPARTMENT OF HEALTH AND conference, shall be served on all parties HUMAN SERVICES of record; FEDERAL RESERVE SYSTEM It is further ordered, That all Agency Information Collection documents submitted by any party of Request; 30–Day Public Comment Formations of, Acquisitions by, and Request, Grants.Gov; 30-day Notice record in this proceeding shall be Mergers of Bank Holding Companies directed to the Secretary, Federal AGENCY: Office of the Secretary, HHS. Maritime Commission, Washington, DC The companies listed in this notice In compliance with the requirement 20573,in accordance with Rule 118 of have applied to the Board for approval, of section 3506(c)(2)(A) of the the Commission’s Rules of Practice and pursuant to the Bank Holding Company Paperwork Reduction Act of 1995, the Procedure, 46 CFR 502.118, and shall be Act of 1956 (12 U.S.C. 1841 et seq.) Office of the Secretary (OS), Department served on parties of record; and (BHC Act), Regulation Y (12 CFR Part of Health and Human Services, is It is further ordered, That in 225), and all other applicable statutes publishing the following summary of a accordance with Rule 61 of the and regulations to become a bank proposed collection for public Commission’s Rules of Practice and holding company and/or to acquire the comment. Interested persons are invited Procedure, the initial decision of the assets or the ownership of, control of, or to send comments regarding this burden Administrative Law Judge shall be the power to vote shares of a bank or estimate or any other aspect of this issued by September 24, 2009 and the bank holding company and all of the collection of information, including any final decision of the Commission shall banks and nonbanking companies of the following subjects: (1) The be issued by January 22, 2010. owned by the bank holding company, necessity and utility of the proposed Karen V. Gregory, including the companies listed below. information collection for the proper Secretary. The applications listed below, as well performance of the agency’s functions; (2) the accuracy of the estimated [FR Doc. E8–22942 Filed 9–29–08; 8:45 am] as other related filings required by the burden; (3) ways to enhance the quality, BILLING CODE 6730–01–P Board, are available for immediate inspection at the Federal Reserve Bank utility, and clarity of the information to indicated. The applications also will be be collected; and (4) the use of automated collection techniques or FEDERAL RESERVE SYSTEM available for inspection at the offices of the Board of Governors. Interested other forms of information technology to Change in Bank Control Notices; persons may express their views in minimize the information collection Acquisition of Shares of Bank or Bank writing on the standards enumerated in burden. Holding Companies the BHC Act (12 U.S.C. 1842(c)). If the To obtain copies of the supporting proposal also involves the acquisition of statement and any related forms for the The notificants listed below have a nonbanking company, the review also proposed paperwork collections applied under the Change in Bank includes whether the acquisition of the referenced above, e-mail your request, Control Act (12 U.S.C. 1817(j)) and nonbanking company complies with the including your address, phone number, § 225.41 of the Board’s Regulation Y (12 standards in section 4 of the BHC Act OMB number, and OS document CFR 225.41) to acquire a bank or bank (12 U.S.C. 1843). Unless otherwise identifier, to holding company. The factors that are noted, nonbanking activities will be [email protected], or call considered in acting on the notices are conducted throughout the United States. the Reports Clearance Office on (202) set forth in paragraph 7 of the Act (12 Additional information on all bank 690–5683. Send written comments and U.S.C. 1817(j)(7)). holding companies may be obtained recommendations for the proposed The notices are available for from the National Information Center information collections within 30 days immediate inspection at the Federal website at www.ffiec.gov/nic/. of this notice directly to the OS OMB Desk Officer; faxed to OMB at 202–395– Reserve Bank indicated. The notices Unless otherwise noted, comments 6974. also will be available for inspection at regarding each of these applications Proposed Project: SF–424 Short the office of the Board of Governors. must be received at the Reserve Bank Organizational—Revision—OMB No. Interested persons may express their indicated or the offices of the Board of 4040–0003—Grants.gov. views in writing to the Reserve Bank Governors not later than October 24, Abstract: This is a request for a indicated for that notice or to the offices 2008. of the Board of Governors. Comments revision of a previously approved must be received not later than October A. Federal Reserve Bank of Atlanta collection. The SF–424 Short 15, 2008. (Steve Foley, Vice President) 1000 organizational form is used by the 26 A. Federal Reserve Bank of Atlanta Peachtree Street, N.E., Atlanta, Georgia Federal grant-making agencies as a (Steve Foley, Vice President) 1000 30309: simplified alternative to the SF–424 Peachtree Street, NE., Atlanta, Georgia 1. Broward Financial Holdings, Inc., standard form. Agencies may use the 30309: to become a bank holding company by SF–424 Short Organizational form for 1. James C. France, Daytona Beach, acquiring 100 percent of the voting grant programs not required to collect Florida, to acquire voting shares of shares of Broward Bank of Commerce, all the data that is required on the SF– CenterBank, Inc., and thereby indirectly both of Fort Lauderdale, Florida. 424 standard form.

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The form is being revised with request, we reviewed the usefulness of by the Agencies. Therefore, no portion changes to the data field that collects collection of a portion of the SSN, by of the SSN will be collected as part of the Social Security Number (SSN). The polling the Agencies that used the SF– the electronic grant application process. SSN field is an optional field. The 424 Short Organizational form; Frequency of data collection varies by current collection pre-fills the first five however, it was determined that the Federal agency. digits with ‘‘xxx-xx’’ and only collects partial SSN is not useful for processing the last four digits of the SSN. At OMB’s the SF–424 Short Organizational form

ESTIMATED ANNUALIZED BURDEN TABLE

Average burden Number of Number of per Total burden Agency respondents responses per response hours respondent (in hours)

NEA ...... 4130 1 20/60 1377 NEH ...... 2328 1 30/60 1,164 DOI ...... 148 2.81 18/60 125 HHS ...... 3903 1 30/60 1952 DOS ...... 800 1 20/60 267

Total ...... 4,885

Seleda Perryman, proposed paperwork collections of Human Subjects. The June 18, 1991 Office of the Secretary, Paperwork Reduction referenced above, e-mail your request, adoption of the common Federal Policy Act Reports Clearance Officer. including your address, phone number, (56 FR 28003) by 15 departments and [FR Doc. E8–22975 Filed 9–29–08; 8:45 am] OMB number, and OS document agencies implements a recommendation BILLING CODE 4151–AE–P identifier, to of the President’s Commission for the [email protected], or call Study of Ethical Problems in Medicine the Reports Clearance Office on (202) and Biomedical and Behavioral DEPARTMENT OF HEALTH AND 690–5683. Written comments and Research which was established on HUMAN SERVICES recommendations for the proposed November 9, 1974, by Public Law 95– [Document Identifier: OS–0990–0260] information collections must be directed 622. The Common Rule is based on HHS to the OS Paperwork Clearance Officer regulations at 45 CFR part 46, subpart A, Agency Information Collection at the above e-mail address within 60 the basic HHS Policy for the Protection Request; 60-Day Public Comment days. of Human Subjects. Request Proposed Project: Protection of The respondents for this collection Human Subjects: Assurance of are institutions engaged in such AGENCY: Office of the Secretary. Compliance with Federal Policy/IRB research. Institutional adherence to the In compliance with the requirement Review/IRB Recordkeeping/Informed Common Rules also is required by other of section 3506(c)(2)(A) of the Consent/Consent Documentation—OMB federal departments and agencies that Paperwork Reduction Act of 1995, the No. 0990–0260—Office for Human have codified or follow the Common Office of the Secretary (OS), Department Research Protections. Rule which is identical to 45 CFR part of Health and Human Services (HHS), is Abstract: Section 491(a) of Public Law 46, subpart A. publishing the following summary of a 99–158 states that the Secretary of HHS proposed information collection request shall by regulation require that each The information being requested for public comment. Interested persons entity applying for HHS support (e.g., a related to the Common Rule should be are invited to send comments regarding grant, contract, or cooperative readily available to the institution or this burden estimate or any other aspect agreement) to conduct research organization that registers the IRB. of this collection of information, involving human subjects submit to The burden estimates for the Common including any of the following subjects: HHS assurances satisfactory to the Rule include those recently approved (1) The necessity and utility of the Secretary that it has established an for use of the Federalwide Assurance proposed information collection for the institutional review board (IRB) to (FWA) form under Control Number proper performance of the agency’s review the research in order to ensure 0990–0278 and for the IRB Registration functions; (2) the accuracy of the protection of the rights and welfare of Form that was recently approved under estimated burden; (3) ways to enhance the human research subjects. IRBs are Control Number 0990–0279, and for the the quality, utility, and clarity of the boards, committees, or groups formally institutional review board (IRB) information to be collected; and (4) the designated by an entity to review, verification (former Optional Form 310). use of automated collection techniques approve, and have continuing oversight The burden estimate for the sections or other forms of information of research involving human subjects. of the Common Rule that require technology to minimize the information Pursuant to the requirement of the reporting or recordkeeping are shown in collection burden. Public Law 99–158, HHS promulgated the burden table below. The number of To obtain copies of the supporting regulations at 45 CFR part 46, subpart A, respondents is the number of IRBs statement and any related forms for the the basic HHS Policy for the Protection registered utilizing OMB 0990–0279.

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TOTAL ESTIMATED ANNUALIZED BURDEN HOURS

Average Number of Number of burden per Total burden Title respondents responses per response hours respondent (in hours)

.103(b)(4), .109(d) IRB Actions, .116 and .117 Informed Consent ...... 6,000 39 .33 1 235,980 .115(a) IRB Recordkeeping ...... 6,000 15 10 900,000 .103(b)(5) Incident Reporting, .113 Suspension or Termination Reporting .. 6,000 0 .5 45/60 2,250

Total ...... 1,138,230

Seleda Perryman, information collection for the proper Abstract: This is a request for a Office of the Secretary, Paperwork Reduction performance of the agency’s functions; revision of a previously approved Act Reports Clearance Officer. (2) the accuracy of the estimated collection. It is a simplified, alternative [FR Doc. E8–22976 Filed 9–29–08; 8:45 am] burden; (3) ways to enhance the quality, government-wide data set and BILLING CODE 4150–36–P utility, and clarity of the information to application cover page for use by be collected; and (4) the use of Federal grant-making agencies that automated collection techniques or award grants to individuals. The form is DEPARTMENT OF HEALTH AND other forms of information technology to being revised with changes to the data HUMAN SERVICES minimize the information collection field that collects the Social Security burden. Number (SSN). The SSN field is an Agency Information Collection To obtain copies of the supporting Request, 30-Day Public Comment statement and any related forms for the optional field. The current collection Request, Grants.Gov; 30-Day Notice proposed paperwork collections pre-fills the first five digits with ‘‘xxx- referenced above, e-mail your request, xx’’ and only collects the last four digits AGENCY: Office of the Secretary, HHS. including your address, phone number, of the SSN. At OMB’s request, we In compliance with the requirement OMB number, and OS document reviewed the usefulness of collection of of section 3506(c)(2)(A) of the identifier, to a portion of the SSN, by polling the Paperwork Reduction Act of 1995, the [email protected], or call Agencies that used the SF–424 Office of the Secretary (OS), Department the Reports Clearance Office on (202) Individual form; however, it was of Health and Human Services, is 690–5683. Send written comments and determined that the partial SSN is not publishing the following summary of a recommendations for the proposed useful for processing the SF–424 proposed collection for public information collections within 30 days Individual form by the Agencies. comment. Interested persons are invited of this notice directly to the OS OMB Therefore, no portion of the SSN will be to send comments regarding this burden Desk Officer; faxed to OMB at 202–395– collected as part of the electronic grant estimate or any other aspect of this 6974. application process. Frequency of data collection of information, including any Proposed Project: SF–424 collection varies by Federal agency. of the following subjects: (1) The Individual—Revision—OMB No. 4040– necessity and utility of the proposed 0005—Grants.gov.

ESTIMATED ANNUALIZED BURDEN TABLE

Average Number of Number of burden per Total burden Agency respondents responses per response hours respondent (in hours)

NEA ...... 1,150 1 10/60 192 NEH ...... 2,593 1 30/60 1,297 USDA ...... 4,069 1 30/60 2,035 HHS ...... 600 1 30/60 300

Total ...... 3,824

Seleda Perryman, DEPARTMENT OF HEALTH AND ACTION: Notice, FACA Committee Office of the Secretary, Paperwork Reduction HUMAN SERVICES Meeting Announcement. Act Reports Clearance Officer. [FR Doc. E8–22977 Filed 9–29–08; 8:45 am] Administration for Children and SUMMARY: Pursuant to Public Law 92– BILLING CODE 4151–AE–P Families 463, the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), Notice of Meeting; National notice is hereby given of the First Commission on Children and Disasters Meeting of the National Commission on Children and Disasters, Department of AGENCY: Administration for Children Health and Human Services. The and Families, Department of Health and meeting will be held from Human Services. approximately 8:30 a.m. to 5 p.m. on Tuesday, October 14, 2008, at the

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Administration for Children and 4618 as soon as possible and no later commitments include annually posting Families, 370 L’Enfant Promenade, SW., than October 6, 2008. a list of guidance documents that CDRH Washington, DC. The meeting will be Dated: September 24, 2008. is considering for development and providing stakeholders an opportunity open to the public; however, seating is Charles Keckler, limited and pre-registration is to provide comments and/or draft Deputy Assistant Secretary for Policy for language for those topics, or suggestions encouraged (see below). Children and Families. for new or different guidances. This FOR FURTHER INFORMATION CONTACT: [FR Doc. E8–22939 Filed 9–29–08; 8:45 am] Roberta Lavin, Office of Human Services notice announces the Web location of BILLING CODE 4184–01–P Emergency Preparedness and Response, the list of guidances (see § 10.115(c)(1) e-mail [email protected] or (21 CFR 10.115(c)(1))) on which CDRH is intending to work over the next FY. (202) 401–9306. DEPARTMENT OF HEALTH AND We note that the agency is not required SUPPLEMENTARY INFORMATION: The HUMAN SERVICES National Commission on Children and to issue every guidance on the list, nor Disasters (henceforth ‘‘the Food and Drug Administration is it precluded from issuing guidance Commission’’) is a commission that documents that are not on the list. The [Docket No. FDA–2007–N–0270] (formerly list includes topics that currently have shall independently conduct a Docket No. 2007N–0357) no guidance associated with them, comprehensive study to examine and topics where updated guidance may be assess the needs of children as they Medical Device User Fee and helpful, and topics for which CDRH has relate to preparation for, response to, Modernization Act; Notice to Public of already issued level 1 drafts that may be and recovery from all hazards, building Web Location of 2009 Proposed finalized following review of public upon the evaluations of other entities Guidance Development comments. We will consider and avoiding unnecessary duplication AGENCY: stakeholder comments as we prioritize by reviewing the findings, conclusions, Food and Drug Administration, our guidance efforts. and recommendations of these entities. HHS. ACTION: Notice. FDA and CDRH priorities are subject The Commission shall then submit a to change at any time. Topics on this report to the President, the Secretary of SUMMARY: The Food and Drug and past guidance priority lists may be Health and Human Services, and the Administration (FDA) is announcing the removed or modified based on current Congress on the Commission’s Web location where the agency will post priorities. We also note that CDRH’s independent and specific findings, a list of guidance documents the Center experience over the years has shown conclusions, and recommendations to for Devices and Radiological Health that there are many reasons CDRH staff address the needs of children as they (CDRH) is considering for development does not complete the entire annual relate to preparation for, response to, in fiscal year (FY) 2009. In addition, agenda of guidances it undertakes. Staff and recovery from all hazards, including FDA has established a docket where are frequently diverted from guidance major disasters and emergencies. The stakeholders may provide comments development to other activities, Commission implements the intent of and/or draft language for those topics as including review of premarket Congress as expressed in The well as suggestions for new or different submissions or postmarket problems. In Consolidated Appropriations Act, 2008 guidances. addition, the Center is required each (Pub. L. 110–161), Division G, Title VI, DATES: Submit written or electronic year to issue a number of guidances that (henceforth ‘‘the Act’’) signed into law comments at any time. it cannot anticipate at the time the on December 26, 2007, authorizing ADDRESSES: Submit written comments annual list is generated. These may funds for a body performing the involve newly identified public health functions here assigned to the to the Division of Dockets Management (HFA–305), Food and Drug issues as well as special control Commission. guidance documents for de novo The Commission will hear Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit classifications of devices. It will be presentations on and discuss: (1) The helpful, therefore, to receive comments Department of Health and Human electronic comments to http:// www.regulations.gov. Identify that indicate the relative priority of Services’ efforts to support the needs of different guidance topics to interested comments with the docket number children in disaster situations; (2) the stakeholders. found in brackets in the heading of this Federal Emergency Management Through feedback from stakeholders, Administration’s efforts to support the document. including draft language for guidance needs of children in disaster situations; FOR FURTHER INFORMATION CONTACT: documents, CDRH expects to be able to (3) White House perspectives on the Deborah A. Wolf, Center for Devices and better prioritize and more efficiently Administration’s efforts to support the Radiological Health (HFZ–215), Food draft guidances that will be useful to needs of children in disaster situations; and Drug Administration, 1350 Piccard industry and other stakeholders. This and (4) plans for future work of the Dr., Rockville, MD 20850, 240–276– will be the second annual list CDRH has Commission. 2350. posted. FDA intends to update the list The meeting will be open to the SUPPLEMENTARY INFORMATION: each year. public; however, seating is limited and FDA invites interested persons to pre-registration is encouraged. To pre- I. Background submit comments on any or all of the register, please e-mail During negotiations over the guidance documents on the list. FDA [email protected] with ‘‘Meeting reauthorization of the Medical Device has established a specific docket (see Registration’’ in the subject line, or call User Fee and Modernization Act docket number found in brackets in the Carol Apelt at (202) 205–4618 by 5 p.m. (MDUFMA), FDA agreed, in return for heading of this document) where EST, October 9, 2008. Registration must additional funding from industry, to comments about the FY 2009 list, draft include your name, affiliation, phone meet a variety of quantitative and language for guidance documents on number. If you require a sign language qualitative goals intended to help get those topics, and suggestions for new or interpreter or other special assistance, safe and effective medical devices to different guidances may be submitted. please call Carol Apelt at (202) 205– market more quickly. These FDA believes this docket is an

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important tool for receiving information This notice announces a forthcoming present data, information, or views, from interested parties and for sharing meeting of a public advisory committee orally or in writing, on issues pending this information with the public. of the Food and Drug Administration before the committee. Written Similar information about planned (FDA). At least one portion of the submissions may be made to the contact guidance development is included in meeting will be closed to the public. person on or before October 16, 2008. the annual agency-wide notice issued by Name of Committee: Antiviral Drugs Oral presentations from the public will FDA under its good guidance practices Advisory Committee. be scheduled between approximately 8 General Function of the Committee: (§ 10.115(f)(5)). The CDRH list, however, a.m. and 9 a.m. Those desiring to make To provide advice and will be focused exclusively on device- formal oral presentations should notify recommendations to the agency on related guidances and will be made the contact person and submit a brief available on FDA’s Web site prior to the FDA’s regulatory issues. Date and Time: The meeting will be statement of the general nature of the beginning of each FY from 2008 to 2012. evidence or arguments they wish to To access the list of the guidance held on October 30, 2008, from 9 a.m. present, the names and addresses of documents CDRH is considering for to 1 p.m. proposed participants, and an development in 2009, visit the FDA Location: Hilton Washington DC/ Web Site at http://www.fda.gov/cdrh/ Silver Spring, The Ballrooms, 1750 indication of the approximate time mdufma/guidance/agenda/fy09.html. Rockville Pike, Rockville, MD, 301– requested to make their presentation on 468–1100. or before October 7, 2008. Time allotted II. Request for Comments Contact Person: Paul Tran, Center for for each presentation may be limited. If Interested persons may submit to the Drug Evaluation and Research (HFD– the number of registrants requesting to Division of Dockets Management (see 21), Food and Drug Administration, speak is greater than can be reasonably 5600 Fishers Lane (for express delivery, ADDRESSES) written or electronic accommodated during the scheduled 5630 Fishers Lane, rm. 1093), Rockville, comments regarding this document. open public hearing session, FDA may MD 20857, 301–827–6793, FAX: 301– Submit a single copy of electronic conduct a lottery to determine the 827–6776, e-mail: comments or two paper copies of any speakers for the scheduled open public [email protected], or FDA mailed comments, except that hearing session. The contact person will Advisory Committee Information Line, individuals may submit one paper copy. 1–800–741–8138 (301–443–0572 in the notify interested persons regarding their Comments are to be identified with the Washington, DC area), code request to speak by October 8, 2008. docket number found in brackets in the 3014512531. Please call the Information Closed Committee Deliberations: On heading of this document. Received Line for up-to-date information on this October 30, 2008, from 9 a.m. to 1 p.m., comments may be seen in the Division meeting. A notice in the Federal the meeting will be closed to permit of Dockets Management between 9 a.m. Register about last minute modifications and 4 p.m., Monday through Friday. discussion and review of trade secret that impact a previously announced Comments submitted to this docket may and/or confidential information (5 advisory committee meeting cannot include draft guidance documents that U.S.C. 552b(c)(4)). During this session, always be published quickly enough to stakeholders have prepared for FDA’s the committee will be updated on provide timely notice. Therefore, you consideration. current and future advances on antiviral should always check the agency’s Web Please note that on January 15, 2008, drugs. site and call the appropriate advisory the FDA Division of Dockets committee hot line/phone line to learn Persons attending FDA’s advisory Management Web site transitioned to about possible modifications before committee meetings are advised that the the Federal Dockets Management coming to the meeting. agency is not responsible for providing System (FDMS). FDMS is a Agenda: The meeting will be open to access to electrical outlets. Government-wide, electronic docket the public from 8 a.m. to 9 a.m., unless FDA welcomes the attendance of the management system. Electronic public participation does not last that comments or submissions will be public at its advisory committee long, from 9 a.m. to 1 p.m., the meeting accepted by FDA only through FDMS at meetings and will make every effort to will be closed to permit discussion of http://www.regulations.gov. accommodate persons with physical current and future advances on antiviral disabilities or special needs. If you Dated: September 24, 2008. drugs which will include the review of require special accommodations due to Jeffrey Shuren, trade secret and/or confidential a disability, please contact Paul Tran at Associate Commissioner for Policy and information. least 7 days in advance of the meeting. Planning. FDA intends to make background [FR Doc. E8–22911 Filed 9–29–08; 8:45 am] material available to the public no later FDA is committed to the orderly conduct of its advisory committee BILLING CODE 4160–01–S than 2 business days before the meeting. If FDA is unable to post the background meetings. Please visit our Web site at material on its Web site prior to the http://www.fda.gov/oc/advisory/ DEPARTMENT OF HEALTH AND meeting, the background material will default.htm for procedures on public HUMAN SERVICES be made publicly available at the conduct during advisory committee location of the advisory committee meetings. Food and Drug Administration meeting, and the background material Notice of this meeting is given under will be posted on FDA’s Web site after [Docket No. FDA–2008–N–0038] the Federal Advisory Committee Act (5 the meeting. Background material is U.S.C. app. 2). available at http://www.fda.gov/ohrms/ Antiviral Drugs Advisory Committee; dockets/ac/acmenu.htm, click on the Dated: September 19, 2008. Notice of Meeting year 2008 and scroll down to the Randall W. Lutter, AGENCY: Food and Drug Administration, appropriate advisory committee link. Deputy Commissioner for Policy. HHS. Procedure: On October 30, 2008, from [FR Doc. E8–22912 Filed 9–29–08; 8:45 am] 8 a.m. to 9 a.m., the meeting is open to ACTION: Notice. BILLING CODE 4160–01–S the public. Interested persons may

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DEPARTMENT OF HEALTH AND Organization Quality Assessment/ Dated: September 23, 2008. HUMAN SERVICES Performance; Status of OPTN Living Elizabeth M. Duke, Donor Follow Up; Risks for Disease Administrator. Health Resources and Services Transmission; Factors Affecting Future [FR Doc. E8–22821 Filed 9–29–08; 8:45 am] Administration Donor Potential; Reimbursement and BILLING CODE 4165–15–P the Changing Nature of the Donor Pool; Notice of Meeting of the Advisory Projected Growth in End-Stage Renal Committee on Organ Transplantation Disease and Implications for Future DEPARTMENT OF HEALTH AND AGENCY: Health Resources and Services Demand for Kidney Transplants; HUMAN SERVICES Administration, HHS. Economic Impact of Transplantation; Office of Inspector General ACTION: Notice of Meeting of the and Briefing on OPTN White Paper on Charges for Pancreata Recovered for Advisory Committee on Organ OIG Supplemental Compliance Transplantation. Islet Transplantation. The three ACOT work groups also will update the full Program Guidance for Nursing SUMMARY: Pursuant to Public Law 92– Committee on their deliberations on Facilities 463, the Federal Advisory Committee living donor advocacy and post- AGENCY: Office of Inspector General Act, as amended (5 U.S.C. Appendix 2), donation complications, sources of (OIG), HHS. notice is hereby given of the fourteenth funding for additional data collection, ACTION: Notice. meeting of the Advisory Committee on and reducing pediatric deaths on the Organ Transplantation (ACOT), waitlist. SUMMARY: This Federal Register notice Department of Health and Human The draft meeting agenda will be sets forth the supplemental compliance Services (HHS). The meeting will be available on October 31 on the program guidance (CPG) for nursing held from approximately 8:30 a.m. to 5 facilities developed by the Office of p.m. on November 13, 2008, and from Department’s donation Web site at http://www.organdonor.gov/acot.html. Inspector General (OIG). OIG is 8:30 a.m. to 3 p.m. on November 14, supplementing its prior CPG for nursing 2008, at the Hilton Washington DC/ A registration form will be available facilities issued in 2000. The Rockville Executive Meeting Center, on or about October 15. Registration can supplemental CPG contains new 1750 Rockville Pike, Rockville, MD be completed electronically at http:// compliance recommendations and an 20852. The meeting will be open to the www.team-psa.com/dot/acot2008/. expanded discussion of risk areas. The public; however, seating is limited and Registration also can be completed supplemental CPG takes into account pre-registration is encouraged (see through the Department’s donation Web Medicare and Medicaid nursing facility below). site at http://www.organdonor.gov/ payment systems and regulations, SUPPLEMENTARY INFORMATION: Under the acot.html. The completed registration evolving industry practices, current authority of 42 U.S.C. 217a, Section 222 form should be submitted by facsimile enforcement priorities (including the of the Public Health Service Act, as to Professional and Scientific Associates Government’s heightened focus on amended, and 42 CFR 121.12 (2000), (PSA), the logistical support contractor quality of care), and lessons learned in ACOT was established to assist the for the meeting, at fax number (703) the area of nursing facility compliance. Secretary in enhancing organ donation, 234–1701. Individuals without access to The supplemental CPG provides ensuring that the system of organ the Internet who wish to register may voluntary guidelines to assist nursing transplantation is grounded in the best call Sowjanya Kotakonda with PSA at facilities in identifying significant risk available medical science, and assuring (703) 234–1737. Individuals who plan to areas and in evaluating and, as the public that the system is as effective attend the meeting and need special necessary, refining ongoing compliance and equitable as possible, and, thereby, assistance, such as sign language efforts. interpretation or other reasonable increasing public confidence in the FOR FURTHER INFORMATION CONTACT: accommodations, should notify the integrity and effectiveness of the Amanda Walker, Associate Counsel, ACOT Executive Secretary, Remy transplantation system. ACOT is Office of Counsel to the Inspector Aronoff, in advance of the meeting. Mr. composed of up to 25 members, General, (202) 619–0335; or Catherine Aronoff may be reached by telephone at including the Chair. Members are Hess, Senior Counsel, Office of Counsel 301–443–3300, e-mail: serving as Special Government to the Inspector General, (202) 619– [email protected] or in writing Employees and have diverse 1306. backgrounds in fields such as organ at the address provided below. donation, health care public policy, Management and support services for Background transplantation medicine and surgery, ACOT functions are provided by the Beginning in 1998, OIG embarked on critical care medicine and other medical Division of Transplantation, Healthcare a major initiative to engage the private specialties involved in the identification Systems Bureau, Health Resources and health care community in preventing and referral of donors, non-physician Services Administration, 5600 Fishers the submission of erroneous claims and transplant professions, nursing, Lane, Parklawn Building, Room 12C–06, in combating fraud and abuse in the epidemiology, immunology, law and Rockville, Maryland 20857; telephone Federal health care programs through bioethics, behavioral sciences, number 301–443–7577. voluntary compliance efforts. As part of economics and statistics, as well as After the presentations and ACOT that initiative, OIG has developed a representatives of transplant candidates, discussions, members of the public will series of CPGs directed at the following transplant recipients, organ donors, and have an opportunity to provide segments of the health care industry: family members. comments. Because of the Committee’s Hospitals; clinical laboratories; home ACOT will hear presentations on the full agenda and the timeframe in which health agencies; third-party billing Report on New York State Transplant to cover the agenda topics, public companies; the durable medical Council’s Committee on Quality comment will be limited. All public equipment, prosthetics, orthotics, and Improvement in Living Kidney comments will be included in the supply industry; hospices; Medicare Donation; Organ Procurement record of the ACOT meeting. Advantage (formerly known as

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Medicare+Choice) organizations; members of residents’ care teams, in B. Regular Review of Compliance Program nursing facilities; ambulance suppliers; achieving appropriate medication Effectiveness physicians; and pharmaceutical management in nursing facilities. Other V. Self-Reporting manufacturers.1 It is our intent that commenters suggested modifications to VI. Conclusion CPGs encourage the development and other aspects of the draft supplemental I. Introduction use of internal controls to monitor CPG, including physician roles and Continuing its efforts to promote adherence to applicable statutes, contractual issues. The final voluntary compliance programs for the regulations, and program requirements. supplemental CPG incorporates health care industry, the Office of The suggestions made in the CPGs are clarifications responsive to these Inspector General (OIG) of the not mandatory, and nursing facilities comments. Several commenters Department of Health and Human should not view the CPGs as exhaustive suggested legislative or policy changes Services (Department) publishes this discussions of beneficial compliance outside the scope of the supplemental Supplemental Compliance Program practices or relevant risk areas. CPG, and those comments are not Guidance (CPG) for Nursing Facilities.5 OIG originally published a CPG for addressed by the final supplemental This document supplements, rather the nursing facility industry on March CPG. than replaces, OIG’s 2000 Nursing 16, 2000.2 Since that time, there have In the draft supplemental CPG, we Facility CPG, which addressed the been significant changes in the way specifically solicited suggestions fundamentals of establishing an nursing facilities deliver, and receive regarding specific measures of effective compliance program for this reimbursement for, health care services, compliance program effectiveness industry.6 as well as significant changes in the tailored to nursing facilities. We did not Neither this supplemental CPG, nor Federal enforcement environment and receive suggestions proposing such the original 2000 Nursing Facility CPG, increased concerns about quality of care measures, and therefore did not include is a model compliance program. Rather, in nursing facilities, which continues to an effectiveness measures section in the the two documents collectively offer a be a high priority of OIG. In response to final supplemental CPG. set of guidelines that nursing facilities these developments, and in an effort to should consider when developing and OIG Supplemental Compliance receive initial input on this guidance implementing a new compliance Program Guidance for Nursing from interested parties, OIG published a program or evaluating an existing one. Facilities notice in the Federal Register on We are mindful that many nursing January 24, 2008, seeking stakeholder This document is organized in the 3 facilities have already devoted comments. After consideration of the following manner: substantial time and resources to public comments and the issues raised, I. Introduction compliance efforts. For those nursing OIG published a draft supplemental facilities with existing compliance CPG for Nursing Facilities in the A. Benefits of a Compliance Program B. Application of Compliance Program programs, this document may serve as a Federal Register on April 16, 2008, to Guidance roadmap for updating or refining their ensure that that all parties had a II. Reimbursement Overview compliance plans. For facilities with reasonable and meaningful opportunity A. Medicare emerging compliance programs, this 4 to provide input into the final product. B. Medicaid supplemental CPG, read in conjunction We received seven comments on the III. Fraud and Abuse Risk Areas with the 2000 Nursing Facility CPG, draft document, all from trade A. Quality of Care should facilitate discussions among 1. Sufficient Staffing associations. We also held stakeholder facility leadership regarding the meetings with the commenters who 2. Comprehensive Resident Care Plans 3. Medication Management inclusion of specific compliance chose to meet with us. OIG considered components and risk areas. the written comments and input from 4. Appropriate Use of Psychotropic Medications In drafting this supplemental CPG, we the meetings during the development of 5. Resident Safety considered, among other things, public the final supplemental CPG. (a) Promoting Resident Safety comments; relevant OIG and Centers for Commenters uniformly supported OIG’s (b) Resident Interactions Medicare & Medicaid Services (CMS) efforts to update the 2000 Nursing (c) Staff Screening statutory and regulatory authorities Facility CPG. Some of the commenters B. Submission of Accurate Claims (including CMS’s regulations governing suggested that OIG clarify the draft 1. Proper Reporting of Resident Case-Mix long-term care facilities at 42 CFR part supplemental CPG to reflect more fully by SNFs 483; CMS transmittals, program 2. Therapy Services the role consultant pharmacists can memoranda, and other guidance; and play, in conjunction with other 3. Screening for Excluded Individuals and Entities the Federal fraud and abuse statutes, 4. Restorative and Personal Care Services together with the anti-kickback safe 1 Copies of the CPGs are available on our Web site C. The Federal Anti-Kickback Statute at http://www.oig.hhs.gov/fraud/ 1. Free Goods and Services 5 For purposes of convenience in this guidance, complianceguidance.html. the term ‘‘nursing facility’’ or ‘‘facility’’ includes a 2 2. Service Contracts See 65 FR 14289 (March 16, 2000), ‘‘Publication skilled nursing facility (SNF) and a nursing facility of the OIG Compliance Program Guidance for (a) Non-Physician Services (b) Physician Services (NF) that meet the requirements of sections 1819 Nursing Facilities’’ (2000 Nursing Facility CPG), and 1919 of the Social Security Act (Act) (42 U.S.C. available on our Web site at http://oig.hhs.gov/ 3. Discounts 1395i–3, 1396r), respectively, as well as entities that authorities/docs/cpgnf.pdf. (a) Price Reductions own or operate such facilities. Where appropriate, 3 See 73 FR 4248 (January 24, 2008), ‘‘Solicitation (b) Swapping we distinguish SNFs from NFs. While long-term of Information and Recommendations for Revising 4. Hospices care providers other than SNFs or NFs, such as the Compliance Program Guidance for Nursing 5. Reserved Bed Payments assisted living facilities, should find this CPG Facilities,’’ available on our Web site at http:// D. Other Risk Areas useful, we recognize that they may be subject to oig.hhs.gov/authorities/docs/08/ 1. Physician Self-Referrals different laws, rules, and regulations and, CPG_Nursing_Facility_Solicitation.pdf. accordingly, may have different or additional risk 2. Anti-Supplementation 4 See 73 FR 20680 (April 16, 2008), ‘‘Draft OIG areas and may need to adopt different compliance Supplemental Compliance Program Guidance for 3. Medicare Part D strategies. We encourage all long-term care Nursing Facilities,’’ available on our Web site at E. HIPAA Privacy and Security Rules providers to establish and maintain effective http://oig.hhs.gov/fraud/docs/complianceguidance/ IV. Other Compliance Considerations compliance programs. NurseCPGIIFR.pdf. A. An Ethical Culture 6 See 2000 Nursing Facility CPG, supra note 2.

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harbor regulations and preambles); other • Increasing the likelihood of this guidance to its own particular OIG guidance (such as OIG advisory preventing unlawful and unethical circumstances. opinions, special fraud alerts, bulletins, behavior or identifying and correcting In section II below, for contextual and other public documents); such behavior at an early stage; purposes, we provide a brief overview experience gained from investigations • Encouraging employees and others of the reimbursement system. In section conducted by OIG’s Office of to report potential problems, which III, entitled ‘‘Fraud and Abuse Risk Investigations, the Department of Justice permits appropriate internal inquiry and Areas,’’ we present several fraud and (DOJ), and the State Medicaid Fraud corrective action and reduces the risk of abuse risk areas that are particularly Control Units; and relevant reports False Claims Act lawsuits, and relevant to the nursing facility industry. issued by OIG’s Office of Audit Services administrative sanctions (e.g., penalties, Each nursing facility should carefully and Office of Evaluation and assessments, and exclusion), as well as examine these risk areas and identify Inspections. We also consulted with State actions; those that potentially affect it. Next, in CMS, DOJ, and nursing facility resident • Minimizing financial loss to the section IV, ‘‘Other Compliance advocates. Government and taxpayers, as well as Considerations,’’ we offer This supplemental CPG responds to corresponding financial loss to the recommendations for establishing an developments in the nursing facility nursing facility; ethical culture and for assessing and • industry, including significant changes Enhancing resident satisfaction and improving an existing compliance in the way nursing facilities deliver, and safety through the delivery of improved program. Finally, in section V, ‘‘Self- receive reimbursement for, health care quality of care; and • Reporting,’’ we set forth the actions services, evolving business practices, Improving the nursing facility’s nursing facilities should take if they and changes in the Federal enforcement reputation for integrity and quality, discover credible evidence of environment. Moreover, this increasing its market competitiveness misconduct. supplemental CPG reflects OIG’s and reputation in the community. continued focus on quality of care in OIG recognizes that implementation II. Reimbursement Overview nursing facilities. Together with our law of a compliance program may not We begin with a brief overview of enforcement partners, we have used, entirely eliminate improper or unethical Medicare and Medicaid reimbursement with increasing frequency, Federal civil conduct from nursing facility for nursing facilities as context for the fraud remedies to address cases operations. However, an effective subsequent risk areas section. This involving poor quality of care, including compliance program demonstrates a overview is intended to be a summary troubling failure of care on a systemic nursing facility’s good faith effort to only. It does not establish or interpret level in some organizations. To promote comply with applicable statutes, any program rules or regulations. compliance and prevent fraud and regulations, and other Federal health Nursing facilities are advised to consult abuse, OIG is supplementing the 2000 care program requirements, and may the relevant program’s payment, Nursing Facility CPG with specific risk significantly reduce the risk of unlawful coverage, and participation rules, areas related to quality of care, claims conduct and corresponding sanctions. regulations, and guidance, which submissions, the Federal anti-kickback B. Application of Compliance Program change over time. Any questions statute, and other emerging areas. Guidance regarding payment, coverage, or participation in the Medicare or A. Benefits of a Compliance Program Given the diversity of the nursing Medicaid programs should be directed facility industry, there is no single Nursing facilities are vital to the to the relevant contractor, carrier, CMS ‘‘best’’ nursing facility compliance health and welfare of millions of office, or State Medicaid agency. Americans. OIG recognizes that most program. OIG recognizes the facilities and the people who work in complexities of the nursing facility A. Medicare them strive daily to provide high industry and the differences among Medicare reimbursement to SNFs and quality, compassionate, cost-effective facilities. Some nursing facilities are NFs depends on several factors, care to residents. A successful small and may have limited resources to including the character of the facility, compliance program addresses the devote to compliance measures; others the beneficiary’s circumstances, and the public and private sectors’ common are affiliated with well-established, type of items and services provided. goals of reducing fraud and abuse, large, multi-facility organizations with a Generally speaking, SNFs are Medicare- enhancing health care providers’ widely dispersed work force and certified facilities that provide extended operations, improving the quality of significant resources to devote to skilled nursing or rehabilitative care health care services, and reducing their compliance. under Medicare Part A. They are overall cost. Meeting these goals Accordingly, OIG does not intend this typically reimbursed under Part A for benefits the nursing facility industry, supplemental CPG to be a ‘‘one-size-fits- the costs of most items and services, the Government, and residents alike. all’’ guidance. OIG strongly encourages including room, board, and ancillary Compliance programs help nursing nursing facilities to identify and focus items and services. In some facilities fulfill their legal duty to their compliance efforts on those areas circumstances (discussed further provide quality care; to refrain from of potential concern or risk that are most below), SNFs may receive payment submitting false or inaccurate claims or relevant to their organizations. A under Medicare Part B. Facilities that cost information to the Federal health nursing facility should tailor its are not SNFs are not reimbursed under care programs; and to avoid engaging in compliance measures to address Part A. They may be reimbursed for other illegal practices. identified risk areas and to fit the some items and services under Part B. A nursing facility may gain important unique environment of the facility Medicare pays SNFs under a additional benefits by voluntarily (including its structure, operations, prospective payment system (PPS) for implementing a compliance program, resources, the needs of its resident beneficiaries covered by the Part A including: population, and prior enforcement extended care benefit.7 Covered • Demonstrating the nursing facility’s experience). In short, OIG recommends commitment to honest and responsible that each nursing facility adapt the 7 Section 1888(e) of the Act (42 U.S.C. 1395yy(e)) corporate conduct; objectives and principles underlying (noting the PPS rate applied to services provided on

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beneficiaries are those who require covered by this consolidated billing resident for Medicare billing skilled nursing or rehabilitation services requirement include, by way of purposes.25 Accordingly, ancillary and receive the services from a example, physical therapy, occupational services, including therapy services, are Medicare-certified SNF after a therapy, and speech therapy services; not subject to consolidated billing.26 qualifying hospital stay of at least 3 certain non-self-administered drugs and Either the supplier of the ancillary days.8 The PPS rate is a fixed, per diem supplies furnished ‘‘incident to’’ a service or the facility may bill the rate.9 The maximum benefit is 100 days physician’s services (e.g., ointments, Medicare carrier for the Part B items and per ‘‘spell of illness.’’ 10 bandages, and oxygen); braces and services directly.27 In these CMS adjusts the PPS per diem rate orthotics; and the technical component circumstances, it is the joint per resident to ensure that the level of of most diagnostic tests.17 These items responsibility of the facility and the payment made for a particular resident and services must be billed to Medicare supplier to ensure that only one of them reflects the resource intensity that by the SNF.18 bills Medicare. would typically be associated with that The consolidated billing requirement Part B coverage for durable medical resident’s clinical condition.11 This does not apply to a small number of equipment (DME) presents special methodology, referred to as the excluded services, such as physician circumstances because the benefit Resource Utilization Group (RUG) professional fees and certain ambulance extends only to items furnished for use classification system, currently in services.19 These excluded services are in a patient’s home.28 DME furnished version RUG-III, uses beneficiary separately billable to Part B by the for use in an SNF or in certain other assessment data extrapolated from the individual or entity furnishing the facilities providing skilled care is not Minimum Data Set (MDS) to assign service. For example, professional covered by Part B. Instead, such DME is beneficiaries to one of the RUG-III services furnished personally by a covered by the Part A PPS payment or groups.12 The MDS is composed of data physician to a Part A SNF resident are applicable inpatient payment.29 In some variables for each resident, including excluded from consolidated billing and cases, NFs that are not SNFs can be diagnoses, treatments, and an evaluation are billed by the physician to the Part considered a ‘‘home’’ for purposes of of the resident’s functional status, B carrier.20 DME coverage under Part B.30 which are collected via a Resident Some Medicare beneficiaries reside in B. Medicaid Assessment Instrument (RAI).13 Such a Medicare-certified SNF, but are not assessments are conducted at eligible for Part A extended care benefits Medicaid provides another means for established intervals throughout a (e.g., a beneficiary who did not have a nursing facility residents to pay for resident’s stay. The resident’s RUG qualifying hospital stay of at least 3 days skilled nursing care, as well as room assignment and payment rate are then or a beneficiary who has exhausted his and board in a nursing facility certified adjusted accordingly for each interval.14 or her Part A benefit). These by the Government to provide services The PPS payments cover virtually all beneficiaries—sometimes described as to Medicaid beneficiaries. Medicaid is a of the SNF’s costs for furnishing being in ‘‘non-covered Part A stays’’— State and Federal program that covers services to Medicare beneficiaries may still be eligible for Part B coverage certain groups of low-income and covered under Part A. Under the of certain individual services. medically needy people. Medicaid also ‘‘consolidated billing’’ rules, SNFs bill Consolidated billing would not apply to helps residents dually eligible for Medicare for most of the services such individual services, with the Medicare and Medicaid pay their provided to Medicare beneficiaries in exception of therapy services.21 Medicare premiums and cost-sharing SNF stays covered under Part A, Physical therapy, occupational therapy, amounts. Because Medicaid eligibility including items and services that and speech language pathology services criteria, coverage limitations, and outside practitioners and suppliers furnished to SNF residents are always reimbursement rates are established at provide under arrangement with the subject to consolidated billing.22 Claims the State level, there is significant SNF.15 The SNF is responsible for for therapy services furnished during a variation across the nation. Many States, paying the outside practitioners and non-covered Part A stay must be however, pay nursing facilities a flat suppliers for these services.16 Services submitted to Medicare by the SNF daily rate that covers room, board, and itself.23 Thus, according to CMS routine care for Medicaid beneficiaries. or after July 1, 1998). See also CMS, ‘‘Consolidated guidance, the SNF is reimbursed under III. Fraud and Abuse Risk Areas Billing,’’ available on CMS’s Web site at http:// the Medicare fee schedule for the www.cms.hhs.gov/SNFPPS/ This section should assist nursing 05_ConsolidatedBilling.asp. therapy services, and is responsible for 24 facilities in their efforts to identify 8 Sections 1812(a)(2) and 1861(i) of the Act (42 reimbursing the therapy provider. U.S.C. 1395d(a)(2), 1395x(i)). When a beneficiary resides in a operational areas that present potential 9 Section 1888(e) of the Act (42 U.S.C. 1395yy(e)). nursing facility (or part thereof) that is liability risks under several key Federal 10 Section 1812(a)(2)(A) of the Act (42 U.S.C. not certified as an SNF by Medicare, the fraud and abuse statutes and 1395d(a)(2)(A)). beneficiary is not considered an SNF regulations. This section focuses on 11 Section 1888(e)(4)(G)(i) of the Act (42 U.S.C. areas that are currently of concern to the 1395yy(e)(4)(G)(i)). 17 enforcement community. It is not 12 Id. Section 1888(e) of the Act (42 U.S.C. 1395yy); Consolidated Billing, supra note 7. intended to address all potential risk 13 Sections 1819(b)(3) and 1919(b)(3) of the Act 18 (42 U.S.C. 1395i–3(b)(3), 1396r(b)(3)), and their Id. areas for nursing facilities. Identifying a implementing regulation, 42 CFR 483.20, require 19 Id. particular practice or activity in this nursing facilities participating in the Medicare or 20 Id. section is not intended to imply that the Medicaid programs to use a standardized RAI to 21 Section 1888(e)(2)(A) of the Act (42 U.S.C. practice or activity is necessarily illegal assess each nursing facility resident’s strengths and 1395yy(e)(2)(A)); CMS, ‘‘Skilled Nursing Facilities needs. (SNF) Consolidated Billing (CB) as It Relates to 25 14 See id. Therapy Services,’’ MLN Matters Number: SE0518 Id. 26 15 Sections 1842(b)(6)(E) and 1862(a)(18) of the (MLN Matters SE0518), available on CMS’s Web site Id. Act (42 U.S.C. 1395u, 1395aa); Section 1888(e) of at http://www.cms.hhs.gov/MLNMattersArticles/ 27 Id. the Act (42 U.S.C. 1395yy(e)) (noting the PPS rate downloads/SE0518.pdf. 28 Section 1861(n) of the Act (42 U.S.C. 1395x(n)). applied to services provided on or after July 1, 22 Id. 29 Section 1861(h)(5) of the Act (42 U.S.C. 1998). See also Consolidated Billing, supra note 7. 23 MLN Matters SE0518, supra note 21. 1395x(h)(5)). 16 See id. 24 Id. 30 Section 1861(n) of the Act (42 U.S.C. 1395x(n)).

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in all circumstances or that it may not compliance with applicable quality of 1. Sufficient Staffing have a valid or lawful purpose. This care standards and regulations is OIG is aware of facilities that have section addresses the following areas of essential for the lawful behavior and systematically failed to provide staff in significant concern for nursing facilities: success of nursing facilities. sufficient numbers and with appropriate Quality of care, submission of accurate Nursing facilities that fail to make clinical expertise to serve their claims, Federal anti-kickback statute, quality a priority, and consequently fail residents. Although most facilities strive other risk areas, and Health Insurance to deliver quality health care, risk to provide sufficient staff, nursing becoming the target of governmental Portability and Accountability Act of facilities must be mindful that Federal investigations. Highlighted below are 1996 (HIPAA) privacy and security law requires sufficient staffing necessary common risk areas associated with the rules. to attain or maintain the highest delivery of quality health care to This guidance does not create any practicable physical, mental, and nursing facility residents that frequently new law or legal obligations, and the psychosocial well-being of residents.35 arise in enforcement cases. These discussions in this guidance are not Thus, staffing numbers and staff include sufficient staffing, intended to present detailed or competency are critical. comprehensive summaries of lawful or comprehensive care plans, medication The relationship between staff ratios, unlawful activity. This guidance is not management, appropriate use of staff competency, and quality of care is psychotropic medications, and resident intended as a substitute for consultation complex.36 No single staffing model will safety. This list is not exhaustive. with CMS, a facility’s fiscal suit every facility. A staffing model that Moreover, nursing facilities should intermediary or Program Safeguard works in a nursing facility today may recognize that these issues are often Contractor, a State Medicaid agency, or not meet the facility’s needs in the inter-related. Nursing facilities that other relevant State agencies with future. Nursing facilities, therefore, are attempt to address one issue will often respect to the application and strongly encouraged to assess their find that they must address other areas interpretation of payment, coverage, staffing patterns regularly to evaluate as well. The risk areas identified in licensure, or other provisions that are whether they have sufficient staff sections III.B. (Submission of Accurate subject to change. Rather, this guidance members who are competent to care for Claims), III.C. (Anti-Kickback), and III.D. should be used as a starting point for a the unique acuity levels of their nursing facility’s legal review of its (Other Risk Areas) below are also intertwined with quality of care risk residents. particular practices and for Important considerations for assessing areas and should be considered as well. development or refinement of policies staffing models include, among others, and procedures to reduce or eliminate As a starting point, nursing facilities should familiarize themselves with 42 resident case-mix, staff skill levels, staff- potential risk. 37 CFR part 483 (part 483), which sets forth to-resident ratios, staff turnover, A. Quality of Care the principal requirements for nursing staffing schedules, disciplinary records, payroll records, timesheets, and adverse By 2030, the number of older facility participation in the Medicare and Medicaid programs. It is essential Americans is estimated to rise to 71 _ _ that key members of the organization 25 ODF SNFLTC.asp; CMS, ‘‘State Operations million,31 making the aging of the U.S. Manual,’’ Pub. No. 100–07, available on CMS’s Web population ‘‘one of the major public understand these requirements and site at http://www.cms.hhs.gov/Manuals/IOM/ support their facility’s commitment to list.asp; see also Medicare Quality Improvement health challenges we face in the 21st Community, ‘‘MedQIP—Medicare Quality century.’’ 32 In addressing this compliance with these regulations. Targeted training for care providers, Improvement Community,’’ available on CMS’s challenge, a national focus on the Web site at http://www.medqic.org. Nursing quality of health care is emerging. managers, administrative staff, officers, facilities may also find it useful to review the CMS In cases that involve failure of care on and directors on the requirements of Quality Improvement Organizations Statement of part 483 will help nursing facilities Work, available at http://www.cms.hhs.gov/ a systemic and widespread basis, the _ ensure that they are fulfilling their QualityImprovementOrgs/04 9thsow.asp. In nursing facility may be liable for addition, facilities may wish to stay abreast of obligation to provide quality health submitting false claims for emerging best practices, which are often promoted care.34 reimbursement to the Government by industry associations. 35 Sections 1819(b)(4)(A) and 1919(b)(4)(A) of the under the Federal False Claims Act, the (concerning obstruction of a Federal audit); the Act (42 U.S.C. 1395i–3(b)(4)(A), 1396r(b)(4)(A)); 42 Civil Monetary Penalties Law (CMPL), Federal False Claims Act (31 U.S.C. 3729–3733); CFR 483.30. or other authorities that address false section 1128A of the Act (42 U.S.C. 1320a–7a) 36 For example, State nursing facility staffing and fraudulent claims or statements (concerning civil monetary penalties); section standards, which exist for the majority of States, 33 1128B(c) of the Act (42 U.S.C. 1320a–7b(c)) vary in types of regulated staff, the ratios of staff, made to the Government. Thus, (concerning false statements or representations with and the facilities to which the regulations apply. respect to condition or operation of institutions). In See Jane Tilly, et al., ‘‘State Experiences with 31 Centers for Disease Control and Prevention addition to the Federal criminal, civil, and Minimum Nursing Staff Ratios for Nursing (CDC), ‘‘The State of Aging and Health in America administrative liability for false claims and Facilities: Findings from Case Studies of Eight 2007,’’ available on CDC’s Web site at http:// kickback violations outlined in this CPG, nursing States’’ (November 2003) (joint paper by The Urban www.cdc.gov/aging/pdf/saha_2007.pdf. facilities also face exposure under State laws, Institute and the Department), available at http:// 32 Id. (quoting Julie Louise Gerberding, M.D., including criminal, civil, and administrative aspe.hhs.gov/daltcp/reports/8statees.htm. MPH, Director, CDC, U.S. Department of Health and sanctions. 37 Nursing facilities operate in an environment of Human Services). 34 The requirement to deliver quality health care high staff turnover where it is difficult to attract, 33 ‘‘Listening Session: Abuse of Our Elders: How is a continuing obligation for nursing facilities. As train, and retain an adequate workforce. Turnover We Can Stop It: Hearing Before the Senate Special regulations change, so too should the training. among nurse aides, who provide most of the hands- Committee on Aging,’’ 110th Congress (2007) Therefore, this recommendation envisions more on care in nursing facilities, means that residents (testimony of Gregory Demske, Assistant Inspector than an initial employee ‘‘orientation’’ training on are constantly receiving care from new staff who General for Legal Affairs, Office of Inspector the nursing facility’s obligations to provide quality often lack experience and knowledge of individual General, U.S. Department of Health and Human health care. CMS has multiple resources available residents. Furthermore, research correlates staff Services), available at http://aging.senate.gov/ to assist nursing facilities in developing training shortages and insufficient training with substandard events/hr178gd.pdf; see also 18 U.S.C. 287 programs. See CMS, ‘‘Sharing Innovations in care. See OIG, OEI Report OEI–01–04–00070, (concerning false, fictitious, or fraudulent claims); Quality, Resources for Long Term Care,’’ available ‘‘Emerging Practices in Nursing Homes,’’ March 18 U.S.C. 1001 (concerning statements or entries on CMS’s Web site at http://siq.air.org/default.aspx; 2005, available on our Web site at http:// generally); 18 U.S.C. 1035 (concerning false CMS, ‘‘Skilled Nursing Facilities/Long-Term Care oig.hhs.gov/oei/reports/oei-01-04-00070.pdf statements relating to health care matters); 18 U.S.C. Open Door Forum,’’ available on CMS’s Web site at (reviewing emerging practices that nursing facility 1347 (concerning health care fraud); 18 U.S.C. 1516 http://www.cms.hhs.gov/OpenDoorForums/ administrators believe reduce their staff turnover).

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event reports (e.g., falls or adverse drug accommodate the full interdisciplinary 3. Medication Management events), as well as interviews with staff, team, completing all clinical The Act requires nursing facilities to residents, and residents’ family or legal assessments before the meeting is provide ‘‘pharmaceutical services guardians. Facilities should ensure that convened,41 opening lines of (including procedures that assure the methods used to assess staffing communication between direct care accurate acquiring, receiving, accurately measure actual ‘‘on-the- providers and interdisciplinary team dispensing, and administering of all floor’’ staff rather than theoretical ‘‘on- members, involving the resident and the drugs and biologicals) to meet the needs paper’’ staff. For example, payroll residents’ family members or legal of each resident.’’ 47 Nursing facilities records that reflect actual hours and guardian,42 and documenting the length should be mindful of potential quality days worked may be more useful than and content of each meeting, may assist of care problems when adopting and prospectively generated staff schedules. facilities with meeting this requirement. implementing policies and procedures 2. Comprehensive Resident Care Plans Another risk area related to care plans to provide these services. A failure to manage pharmaceutical services Development of comprehensive includes the involvement of attending properly can seriously jeopardize resident care plans is essential to physicians in resident care. Although resident safety and even result in reducing risk. Prior OIG reports revealed specific regulations govern the role and resident deaths. that a significant percentage of resident responsibilities of attending Nursing facilities can promote care plans did not reflect residents’ physicians,43 the nursing facility also compliance by having in place proper actual care needs.38 Through its has a critical role—ensuring that a medication management processes that enforcement and compliance physician supervises each resident’s advance patient safety, minimize monitoring activities, OIG continues to 44 care. Facilities must also include the adverse drug interactions, and ensure see insufficient care plans and their attending physician in the development that irregularities in a resident’s drug impact on residents as a risk area for 45 of the resident’s care plan. Thus, an regimen are promptly discovered and nursing facilities. effective compliance program would Medicare and Medicaid regulations addressed. Nursing facilities should ensure physician involvement in these implement policies and procedures for require nursing facilities to develop a 46 processes. For example, many maintaining accurate drug records and comprehensive care plan for each facilities schedule meetings to discuss a resident that addresses the medical, tracking medications. Nursing facilities particular resident’s care plan. Facilities should provide appropriate training on nursing, and mental and psychosocial may wish to develop policies and needs for each resident and includes a regular basis to familiarize all staff 39 procedures to facilitate participation by involved in the pharmaceutical care of reasonable objectives and timetables. attending physicians, who often are not Nursing facilities should ensure that residents with proper medication physically present at the nursing facility care planning includes all disciplines management. To this end, the facility’s on a daily basis. Facilities may improve involved in the resident’s care.40 consultant pharmacist is an important communication with physicians by Perfunctory meetings or plans resource. Consultant pharmacists, who developed without the full clinical team providing advance notice of care specialize in the medication needs may create less than comprehensive planning meetings. Nursing facilities specific to older adults or resident-centered care plans. should evaluate, in conjunction with the institutionalized individuals, can help Inadequately prepared plans make it attending physician, how best to ensure facilities ‘‘identify, evaluate, and less likely that residents will receive physician participation—whether via address medication issues that may consultation and post-meeting affect resident care, medical care, and coordinated, multidisciplinary care. 48 Insufficient plans jeopardize residents’ debriefing, or telephone or personal quality of life.’’ CMS regulations require that nursing well-being and risk the provision of attendance at meetings—with a focus on facilities employ or obtain the services inadequate care, medically unnecessary serving the best interests of the resident of a licensed pharmacist to ‘‘provide[] care services, or medically and complying with applicable consultation on all aspects of the inappropriate services. regulations. To reduce these risks, nursing provision of pharmacy services in the facility * * *.’’ 49 The pharmacist must facilities should design measures to 41 Nursing facilities with residents with mental ensure an interdisciplinary and illness or mental retardation should ensure that review the drug regimen of each comprehensive approach to developing they have the Preadmission Screening and Resident resident at least once a month and Review (PASRR) screens for their residents. See 42 care plans. Basic steps, such as CFR 483.20(m). In addition, for residents who do 47 Sections 1819(b)(4)(A)(iii) and appropriately scheduling meetings to not require specialized services, facilities should 1919(b)(4)(A)(iii) of the Act (42 U.S.C. 1395i– ensure that they are providing the ‘‘services of 3(b)(4)(A)(iii) and 1396r(b)(4)(A)(iii)). In addition, 38 See, e.g., OIG, OEI Report OEI–02–99–00040, lesser intensity’’ as set forth in CMS regulations. under 42 CFR 483.60, SNFs and NFs must ‘‘provide ‘‘Nursing Home Resident Assessment Quality of See 42 CFR 483.120(c). Care plan meetings can routine and emergency drugs and biologicals to Care,’’ January 2001, available on our Web site at provide nursing facilities with an ideal opportunity [their] residents, or obtain them under an agreement http://oig.hhs.gov/oei/reports/oei-02–99–00040.pdf. to ensure that these obligations are met. described in [section] 483.75(h) * * *’’ Nursing 42 39 42 CFR 483.20(k). An effective compliance Where possible, residents and their family facilities must meet this obligation even if a program would also monitor discharge and transfer members or legal guardians should be included in pharmacy charges a Medicare Part D copayment to of residents for compliance with Federal and State the development of care and treatment plans. a dual eligible beneficiary who cannot afford to pay regulations. See, e.g., 42 CFR 483.12 (detailing Unless the resident has been declared incompetent the copayment. See CMS, ‘‘Part D Questions re: Co- transfer and discharge obligations). Because many or otherwise found to be incapacitated under State pays for Institutionalized Individuals April 19, of the legitimate reasons for transfer or discharge law, the resident has a right to participate in his or 2006,’’ Question 2. and Response, in ‘‘Medicare Part relate to the medical or psychosocial needs of the her care planning and treatment. 42 CFR D Claims Filing Window Extended to 180 Days,’’ resident, the care plan team may be in a position 483.10(d)(3). Medicare Rx Update: May 9, 2006, available on to provide recommendations on discharge or 43 See, e.g., 42 CFR 483.40(b), (c), (e). CMS’s Web site at http://www.cms.hhs.gov/ transfer of a resident. 44 42 CFR 483.40(a). Pharmacy/downloads/update050906.pdf. 40 42 CFR 483.20(k)(2)(ii) (requiring an 45 42 CFR 483.20(k)(2)(ii). 48 CMS, ‘‘State Operations Manual,’’ Pub. No. interdisciplinary team, including the physician, a 46 See 42 CFR 483.40(a) (obligating a facility to 100–07, Appendix PP, section 483.60, available on registered nurse with responsibility for the resident, ensure a physician supervises resident care); 42 CMS’s Web site at http://cms.hhs.gov/manuals/ and other disciplines involved in the resident’s CFR 483.40(b) (requiring physicians to review the Downloads/som107ap_pp_guidelines_ltcf.pdf. care). resident’s ‘‘total program of care’’). 49 42 CFR 483.60(b)(1).

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report any irregularities discovered in a for the quality of drug therapy provided from these risks.62 Of particular concern resident’s drug regimen to the attending in the facility. Federal law prohibits is harm caused by staff and fellow physician and the director of nursing.50 facilities from using any medication as residents.63 These pharmacists are also required to: a means of chemical restraint for (a) Promoting Resident Safety (1) ‘‘[e]stablish[] a system of records of ‘‘purposes of discipline or convenience, receipt and disposition of all controlled and not required to treat the resident’s Federal regulations mandate that drugs * * * ;’’ and (2) ‘‘[d]etermine[] medical symptoms.’’ 55 In addition, nursing facilities develop and that drug records are in order and that resident drug regimens must be free implement policies and procedures to an account of all controlled drugs is from unnecessary drugs.56 For residents prohibit mistreatment, neglect, and maintained and periodically who specifically require antipsychotic abuse of residents.64 Facilities must also reconciled.’’ 51 As indicated in CMS medications, CMS regulations also thoroughly investigate and report guidance, ‘‘[t]he facility may provide for require, unless contraindicated, that incidents to law enforcement, as this service through any of several residents receive gradual dose required by State laws.65 Although methods (in accordance with [S]tate reductions and behavioral interventions experts continue to debate the most requirements) such as direct aimed at reducing medication use.57 effective systems for enhancing the employment or contractual agreement In light of these requirements, nursing reporting, investigation, and 52 with a pharmacist.’’ Some of the facilities should ensure that there is an prosecution of nursing facility resident consultant pharmacists obtained by adequate indication for the use of the abuse, an effective compliance program nursing facilities are employed by long- medication and should carefully recognizes the value of a demonstrated term care pharmacies that furnish drugs monitor, document, and review the use internal commitment to eliminating 53 and supplies to nursing facilities. of each resident’s psychotropic drugs. resident abuse.66 An effective Whatever the arrangement or method Working together, the attending compliance program will include used, the nursing facility and consultant physicians, medical director, consultant policies, procedures, and practices to pharmacist should work together to pharmacist, and other resident care prevent, investigate, and respond to achieve proper medication management providers play a critical role in instances of potential resident abuse, in the facility. achieving these objectives. Compliance neglect, or mistreatment, including 4. Appropriate Use of Psychotropic measures could include educating care injuries resulting from staff-on-resident Medications providers regarding appropriate abuse and neglect, resident-on-resident monitoring and documentation abuse, and abuse from unknown causes. Based on our enforcement and Confidential reporting is a key compliance monitoring activities, OIG practices and auditing drug regimen reviews 58 and resident care plans to component of an effective resident has identified inappropriate use of safety program. Such a mechanism psychotropic medications for residents determine if they incorporate an assessment of the resident’s ‘‘medical, enables staff, contractors, residents, as a risk area in at least two ways—the family members, visitors, and others to prohibition against inappropriate use of nursing, and mental and psychosocial needs,’’ 59 including the need for report threats, abuse, mistreatment, and chemical restraints and the requirement other safety concerns confidentially to to avoid unnecessary drug usage. psychotropic medications for a specific 60 senior staff empowered to take Facilities have affirmative obligations medical condition. The attending immediate action. Posters, brochures, to ensure appropriate use of physicians, the medical director, the and online resources that encourage psychotropic medications. Specifically, consultant pharmacist, and other care readers to report suspected safety nursing facilities must ensure that providers should collaborate to analyze problems to senior facility staff are psychopharmacological practices the outcomes of care using the results of comport with Federal regulations and the drug regimen reviews, progress commonly used. Another commonly generally accepted professional notes, and monitoring of the resident’s 62 See id. 54 behaviors. standards. The facility is responsible 63 For an overview of research relating to resident 5. Resident Safety abuse and neglect, see Catherine Hawes, Ph.D., 50 42 CFR 483.60(c). ‘‘Elder Abuse in Residential Long-Term Care 51 42 CFR 483.60(b)(2), (3). Nursing facility residents have a legal Settings: What is Known and What Information is 52 CMS, ‘‘State Operations Manual,’’ Pub. No. right to be free from abuse and neglect.61 Needed?,’’ in Elder Mistreatment: Abuse, Neglect, and Exploitation in an Aging America (National 100–07, Appendix PP, section 483.60, available on Facilities should take steps to ensure CMS’s Web site at http://cms.hhs.gov/manuals/ Research Council, 2003); U.S. Government Downloads/som107ap_pp_guidelines_ltcf.pdf. In that they are protecting their residents Accountability Office (GAO), GAO Report GAO– cases where the nursing facilities employ or 02–312, ‘‘Nursing Homes: More Can Be Done to Protect Residents from Abuse,’’ March 2002, contract directly with pharmacists to provide CFR 483.75(b) (requiring facilities to provide available on GAO’s Web site at http://www.gao.gov/ consultant pharmacist services, the nursing facility services in compliance ‘‘with all applicable Federal, new.items/d02312.pdf; Administration on Aging, should ensure that the pharmacist’s compensation State, and local laws, regulations, and codes, and Elder Abuse Web site, available at http:// is not structured in any manner that reflects the with accepted professional standards and principles www.aoa.gov/eldfam/elder_rights/elder_abuse/ volume or value of drugs prescribed for, or * * *’’). administered to, patients. elder_abuse.aspx. 55 42 CFR 483.13(a). 53 Nursing facilities that receive consultant 64 42 CFR 483.13(c); see also 42 CFR 483.13(a). 56 42 CFR 483.25(l)(1). An unnecessary drug pharmacist services under contract with a long-term 65 Id. includes any medication, including psychotropic care pharmacy should be mindful that the provision 66 medications, that is excessive in dose, used Under State mandatory reporting statutes, or receipt of free services or services at non-fair- excessively in duration, used without adequate persons such as health care professionals, human market value rates between actual or potential monitoring, used without adequate indications for service professionals, clergy, law enforcement, and referral sources present a heightened risk of fraud its use, used in the presence of adverse financial professionals may have a legal obligation and abuse. For further discussion of the anti- consequences, or any combination thereof. Id. to make a formal report to law enforcement officials kickback statute and service arrangements, see or a central reporting agency if they suspect that a 57 42 CFR 483.25(l)(2). sections III.C.1. and III.C.2. nursing facility resident is being abused or 58 54 See, e.g., 42 CFR 483.20(k)(3) (requiring 42 CFR 483.60(c). neglected. To ensure compliance with these services that are ‘‘provided or arranged by the 59 42 CFR 483.20(k). statutes, nursing facilities should consider training facility’’ to comport with professional standards of 60 42 CFR 483.25(l)(2). relating to compliance with their relevant States’ quality); 42 CFR 483.25 (requiring facilities to 61 Sections 1819 and 1919 of the Act (42 U.S.C. laws. Nursing facilities can also assist by providing provide necessary care and services, including the 1351i–3 and 1396r); 42 CFR 483.10; see also 42 CFR ready access to law enforcement contact resident’s right to be free of unnecessary drugs); 42 483.15 and 483.25. information.

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used compliance component for facilities in their mission to provide a mechanisms in place to identify which reporting violations is a dedicated safe environment for residents. State registries they must examine. hotline that allows staff, contractors, (c) Staff Screening B. Submission of Accurate Claims residents, family members, visitors, and others with concerns to report Nursing facilities cannot employ Nursing facilities must submit suspicions. Regardless of the reporting individuals ‘‘[f]ound guilty of abusing, accurate claims to Federal health care vehicle, ideally coverage for reporting neglecting, or mistreating residents,’’ or programs. Examples of false or and addressing resident safety issues individuals with ‘‘a finding entered into fraudulent claims include claims for would be on a constant basis (i.e., 24 [a] State nurse aide registry concerning items not provided or not provided as hours per day/7 days per week). abuse, neglect, mistreatment of residents claimed, claims for services that are not Moreover, nursing facilities should or misappropriation of their medically necessary, and claims when make clear to caregivers, facility staff, property.’’ 68 Effective recruitment, there has been a failure of care. and residents that the facility is screening, and training of care providers Submitting a false claim, or causing a committed to protecting those who are essential to ensure a viable false claim to be submitted, to a Federal make reports from retaliation. workforce. Although no pre- health care program may subject the Facilities may also want to consider a employment background screening can individual, the entity, or both to program to engage everyone who comes provide nursing facilities with absolute criminal prosecution, civil liability in contact with nursing facility assurance that a job applicant will not (including treble damages and penalties) residents—whether health care commit a crime in the future, nursing under the False Claims Act, and professionals, administrative and facilities must make reasonable efforts exclusion from participation in Federal custodial staff, family and friends, to ensure that they have a workforce health care programs. visiting therapists, or community that will maintain the safety of their Common and longstanding risks members—in the mission of protecting residents. associated with claim preparation and residents. Such a program could include Commonly, nursing facilities screen submission include duplicate billing, specialized training for everyone who potential employees against criminal insufficient documentation, and false or interacts on a regular basis with record databases. OIG is aware that fraudulent cost reports. While nursing residents on recognizing warning signs there is a ‘‘great diversity in the way facilities should continue to be vigilant of neglect or abuse and on effective States systematically identify, report, with respect to these important risk methods to communicate with and investigate suspected abuse.’’ 69 areas, we believe these risk areas are potentially fearful residents in a way Nonetheless, a comprehensive relatively well understood in the likely to induce candid self-reporting of examination of a prospective industry, and therefore they are not neglect or abuse.67 employee’s criminal record in all States specifically addressed in this section. in which the person has worked or As reimbursement systems have (b) Resident Interactions resided may provide a greater degree of evolved, OIG has uncovered other types The nursing facility industry, resident protection for residents.70 of fraudulent transactions related to the advocacy groups, and law enforcement Verification of education, licensing, provision of health care services to are becoming increasingly concerned certifications, and training for care residents of nursing facilities about resident abuse committed by providers can also assist nursing reimbursed by Medicare and Medicaid. fellow residents. Abuse can occur as a facilities in their efforts to ensure they In this section, we will discuss some of result of the failure to properly screen provide patients with qualified and these risk areas. This list is not and assess, or the failure of staff to skilled caregivers. Many States have exhaustive. It is intended to assist monitor, residents at risk for aggressive requirements that nursing facilities facilities in evaluating their own risk behavior. Such failures can jeopardize conduct these checks for all professional areas. In addition, section III.A. above both the resident with aggressive care providers, such as therapists, outlines other regulatory requirements behaviors and the victimized resident. medical directors, and nurses. Federal that, if not met, may subject nursing Heightened awareness and monitoring regulations require a nursing facility to facilities to potential liability for for abuse are crucial to eradicating check its State nurse aide registry to submission of false or fraudulent claims. resident-on-resident abuse. Nursing ensure that potential hires for nurse aide facilities can advance their mission to positions have met competency 1. Proper Reporting of Resident Case- provide a safe environment for residents evaluation requirements or are Mix by SNFs through targeted education relating to otherwise exempted from registration We are aware of instances in which resident-on-resident abuse (particularly requirements.71 In addition, the facility SNFs have improperly upcoded resident for staff with responsibilities for must also check every State nurse aide RUG assignments.73 Classifying a admission evaluations). Thorough registry it ‘‘believes will include resident into the correct RUG, through resident assessments, comprehensive information’’ on the individual.72 To resident assessments, requires accurate care plans, periodic resident ensure compliance with this and comprehensive reporting about the assessments, and proper staffing requirement, facilities should have resident’s conditions and needs. assignments would also assist nursing Inaccurate reporting of data could result 68 42 CFR 483.13(c)(1)(ii). in the misrepresentation of the 69 67 Facilities could explore partnering with the OIG, Audit Report A–12–12–97–0003, resident’s status, the submission of false ‘‘Safeguarding Long-Term Care Residents,’’ ombudsmen and other consumer advocates in claims, and potential enforcement sponsoring or participating in special training September 1998, available on our Web site at programs designed to prevent abuse. See ‘‘Elder http://oig.hhs.gov/oas/reports/aoa/d9700003.pdf. actions. Therefore, we have identified Justice: Protecting Seniors from Abuse and Neglect: 70 Because there is no one central repository for Hearing Before the Senate Committee on Finance,’’ criminal records, there is a significant limitation to 73 A 2006 OIG report found that 22 percent of 107th Congress (2002) (testimony of Catherine searching the criminal record databases only for the claims were upcoded, representing $542 million in Hawes, Ph.D., titled ‘‘Elder Abuse in Residential State in which the facility is located. A better potential overpayments for FY 2002. OIG, OEI Long-Term Care Facilities: What is Known About practice may be to search databases for all States in Report OEI–02–02–00830, ‘‘A Review of Nursing the Prevalence, Causes, and Prevention’’), available which the applicant resided or was employed. Facility Resource Utilization Groups,’’ February at http://finance.senate.gov/hearings/testimony/ 71 42 CFR 483.75(e)(5). 2006, available on our Web site at http:// 061802chtest.pdf. 72 42 CFR 483.75(e)(6). oig.hhs.gov/oei/reports/oei-02–02–00830.pdf.

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the assessment, reporting, and services may expose residents to risk of prior to engaging their services against evaluation of resident case-mix data as physical injury or decline in condition, OIG’s List of Excluded Individuals/ a significant risk area for SNFs.74 resulting in potential failure of care Entities (LEIE) on OIG’s Web site,85 as Because of the critical role resident problems. well as the U.S. General Services case-mix data play in resident care OIG strongly advises nursing facilities Administration’s Excluded Parties List planning and reimbursement, training to develop policies, procedures, and System.86 In addition, facilities should on the collection and use of case-mix measures to ensure that residents are consider implementing a process that data is important. An effective receiving medically appropriate therapy requires job applicants to disclose, compliance program will include services.80 Some practices that may be during the pre-employment process (or, training of responsible staff to ensure beneficial include: Requirements that for vendors, during the request for that persons collecting the data and therapy contractors provide complete proposal process), whether they are those charged with analyzing and and contemporaneous documentation of excluded. Facilities should strongly responding to the data are each resident’s services; regular and consider periodically screening their knowledgeable about the purpose and periodic reconciliation of the current owners, officers, directors, utility of the data. Facilities must also physician’s orders and the services employees, contractors, and agents to ensure that data reported to the Federal actually provided; interviews with the ensure that they have not been excluded Government are accurate. Both internal residents and family members to be sure since the initial screening. and external periodic validation of data services are delivered; and assessments Facilities should also take steps to may prove useful. Moreover, as of the continued medical necessity for ensure that they have policies and authorities continue to scrutinize services during resident care planning procedures that require removal of any quality-reporting data,75 nursing meetings at which the attending owner, officer, director, employee, facilities are well-advised to review physician attends. contractor, or agent from responsibility such data regularly to ensure their for, or involvement with, a facility’s 3. Screening for Excluded Individuals accuracy and to identify and address business operations related to the and Entities potential quality of care issues.76 Federal health care programs if the No Federal health care program facility has actual notice that such a 2. Therapy Services payment may be made for items or person is excluded. Facilities may also The provision of physical, services furnished by an excluded wish to consider appropriate training for occupational, and speech therapy individual or entity.81 This payment human resources personnel on the services continues to be a risk area for ban applies to all methods of Federal effects of exclusion. Exclusion nursing facilities. Potential problems health care program reimbursement. continues to apply to an individual even include: (i) Improper utilization of Civil monetary penalties (CMP) may be if he or she changes from one health therapy services to inflate the severity of imposed against any person who care profession to another while RUG classifications and obtain arranges or contracts (by employment or excluded. That exclusion remains in additional reimbursement; (ii) otherwise) with an individual or entity effect until OIG has reinstated the overutilization of therapy services billed for the provision of items or services for individual, which is not automatic.87 A on a fee-for-service basis to Part B under which payment may be made under a useful tool for the training is OIG’s consolidated billing; and (iii) stinting on Federal health care program,82 if the Special Advisory Bulletin, titled ‘‘The therapy services provided to patients person knows or should know that the Effect of Exclusion From Participation covered by the Part A PPS payment.77 employee or contractor is excluded from in Federal Health Care Programs.’’ 88 These practices may result in the participation in a Federal health care 4. Restorative and Personal Care submission of false claims.78 program.83 Services In addition, unnecessary therapy To prevent hiring or contracting with services may place frail but otherwise an excluded person, OIG strongly Facilities must ensure that residents functioning residents at risk for physical advises nursing facilities to screen all receive appropriate restorative and injury, such as muscle fatigue and prospective owners, officers, directors, 84 the nursing facility. Although a nursing facility broken bones, and may obscure a employees, contractors, and agents would not avoid liability for violating Medicare’s resident’s true condition, leading to prohibition on payment for services rendered by the inadequate care plans and inaccurate 80 See OIG, OEI Report OEI–09–99–00563, excluded staff person merely by including such a RUG classifications.79 Too few therapy ‘‘Physical, Occupational, and Speech Therapy for provision, requiring the vendors to screen staff may Medicare Nursing Home Patients: Medical help a nursing facility avoid engaging the services Necessity and Quality of Care Based on Treatment of excluded persons, and could be taken into 74 To the extent a State Medicaid program relies Diagnosis,’’ August 2001, available on our Web site account in the event of a Government enforcement upon RUG classification, or a variation of this at http://oig.hhs.gov/oei/reports/oei-09–99– action. system, to calculate its reimbursement rate, nursing 00563.pdf. 85 Available on our Web site at http://oig.hhs.gov/ facilities, as defined in section 1919 of the Act (42 81 42 CFR 1001.1901. Exclusions imposed prior to fraud/exclusions/listofexcluded.html. U.S.C. 1396r), should be aware of this risk area as August 5, 1997, cover Medicare and all State health 86 Available at http://www.epls.gov/. well. care programs (including Medicaid), but not other 87 Reinstatement of excluded entities and 75 See, e.g., CMS, ‘‘2007 Action Plan for (Further Federal health care programs. See The Balanced individuals is not automatic. Those wishing to Improvement of) Nursing Home Quality,’’ Budget Act of 1997 (Pub. L. 105–33) (amending again participate in the Medicare, Medicaid, and all September 2006, available on CMS’s Web site at section 1128 of the Act (42 U.S.C. 1320a–7) to Federal health care programs must apply for http://www.cms.hhs.gov/SurveyCertificationGen expand the scope of exclusions imposed by OIG). reinstatement and receive authorized notice from Info/downloads/2007ActionPlan.pdf. 82 Such items or services could include OIG that reinstatement has been granted. Obtaining 76 In addition to assisting facilities with ensuring administrative, clerical, and other activities that do a provider number from a Medicare contractor, a that claims data are accurate, monitoring MDS data not directly involve patient care. See section State agency, or a Federal health care program does may assist facilities in recognizing common 1128A(a)(6) of the Act (42 U.S.C. 1320a–7a(a)(6)). not reinstate eligibility to participate in those warning signs of a systemic care problem (e.g., 83 Id. programs. There are no provisions for retroactive increase in or excessive pressure ulcers or falls). 84 A nursing facility that relies upon third-party reinstatement. See 42 CFR 1001.1901. 77 There may be additional risk areas for outside agencies to provide temporary or contract staffing 88 OIG, ‘‘The Effect of Exclusion From therapy suppliers. should consider including provisions in its Participation in Federal Health Care Programs,’’ 78 Additional risks related to the anti-kickback contracts that require the vendors to screen staff September 1999, available on our Web site at statute are discussed below in section III.C. against OIG’s List of Excluded Individuals/Entities http://oig.hhs.gov/fraud/docs/alertsandbulletins/ 79 See 42 CFR 483.20(b) and (k). before determining that they are eligible to work at effected.htm.

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personal care services to allow residents made purposefully to induce or reward Although liability under the anti- to attain and maintain their highest the referral or generation of Federal kickback statute ultimately turns on a practicable level of functioning.89 These health care program business. The anti- party’s intent, it is possible to identify services include, among others, care to kickback statute prohibits offering or arrangements or practices that may avoid pressure ulcers, active and paying anything of value for patient present a significant potential for abuse. passive range of motion, ambulation, referrals. It also prohibits offering or For purposes of identifying potential fall prevention, incontinence paying of anything of value in return for kickback risks under the anti-kickback management, bathing, dressing, and purchasing, leasing, ordering, or statute, the following inquiries are grooming activities.90 arranging for or recommending the useful: OIG is aware of facilities that have purchase, lease, or order of any item or • Does the nursing facility (or its billed Federal health care programs for service reimbursable in whole or in part affiliates or representatives) provide restorative and personal care services by a Federal health care program. The anything of value to persons or entities despite the fact that the services were statute also covers the solicitation or in a position to influence or generate not provided or were so wholly acceptance of remuneration for referrals Federal health care program business for deficient that they amounted to no care for, or the generation of, business the nursing facility (or its affiliates) at all. Federal health care programs do payable by a Federal health care directly or indirectly? • not reimburse for restorative and program. Liability under the anti- Does the nursing facility (or its personal care services under these kickback statute is determined affiliates or representatives) receive circumstances. Nursing facilities that separately for each party involved. In anything of value from persons or fail to provide necessary restorative and addition to criminal penalties, violators entities for which the nursing facility personal care services risk billing for may be subject to CMPs and exclusion generates Federal health care program business, directly or indirectly? services not rendered as claimed, and from the Federal health care programs. • therefore may be subject to liability Nursing facilities should also be aware Could one purpose of an under fraud and abuse statutes and that compliance with the anti-kickback arrangement be to induce or reward the generation of business payable in whole regulations. statute is a condition of payment under or in part by a Federal health care To avoid this risk, nursing facilities Medicare and other Federal health care program? Importantly, under the anti- are strongly encouraged to have programs.93 As such, liability may arise kickback statute, neither a legitimate comprehensive procedures in place to under the False Claims Act if the anti- business purpose for an arrangement ensure that services are of an kickback statute violation results in the nor a fair-market value payment will appropriate quality and level and that submission of a claim for payment legitimize a payment if there is also an services are in fact delivered to nursing under a Federal health care program. facility residents. To accomplish this, illegal purpose (i.e., inducing Federal Nursing facilities make and receive health care program business). facilities may wish to engage in resident referrals of Federal health care program Any arrangement for which the answer and staff interviews; medical record business. Nursing facilities need to to any of these inquiries is affirmative reviews; 91 consultations with attending ensure that these referrals comply with implicates the anti-kickback statute and physicians, the medical director, and the anti-kickback statute. Nursing consultant pharmacists; and personal requires careful scrutiny. facilities may obtain referrals of Federal Several potentially aggravating observations of care delivery. Moreover, health care program beneficiaries from a complete and contemporaneous considerations are useful in identifying variety of health care sources, including, arrangements at greatest risk of documentation of services is critical to for example, physicians and other ensuring that services are rendered. prosecution. In particular, in assessing health care professionals, hospitals and risk, nursing facilities should ask the C. The Federal Anti-Kickback Statute hospital discharge planners, hospices, following questions, among others, home health agencies, and other nursing about any potentially problematic The Federal anti-kickback statute, facilities. Physicians, pharmacists, and 92 arrangements or practices they identify: section 1128B(b) of the Act, places other health care professionals may • constraints on business arrangements Does the arrangement or practice generate referrals for items and services have a potential to interfere with, or related directly or indirectly to items or reimbursed to the nursing facilities by services reimbursable by Federal health skew, clinical decision-making? Federal health care programs. In • Does the arrangement or practice care programs, including, but not addition, when furnishing services to have a potential to increase costs to limited to, Medicare and Medicaid. The residents, nursing facilities often direct Federal health care programs or anti-kickback statute prohibits the or influence referrals to others for items beneficiaries? health care industry from engaging in and services reimbursable by Federal • Does the arrangement or practice some practices that are common in other health care programs. For example, have a potential to increase the risk of business sectors, such as offering or nursing facilities may refer patients to, overutilization or inappropriate receiving gifts to reward past or or order items or services from, utilization? potential new referrals. hospices; DME companies; laboratories; • Does the arrangement or practice The anti-kickback statute is a criminal diagnostic testing facilities; long-term raise patient safety or quality of care prohibition against remuneration (in care pharmacies; hospitals; physicians; concerns? any form, whether direct or indirect) other nursing facilities; and physical, Nursing facilities should be mindful of occupational, and speech therapists. All these concerns when structuring and 89 42 CFR 483.25 (requiring facilities to provide care and services necessary to ensure a resident’s of these circumstances call for vigilance reviewing arrangements. An affirmative ability to participate in activities of daily living do under the anti-kickback statute. answer to one or more of these not diminish unless a clinical condition makes the questions is a red flag signaling an decline unavoidable). 93 See, e.g., CMS, Form 855A, ‘‘Medicare Federal 90 arrangement or practice that may be Id. Health Care Provider/Supplier Application,’’ particularly susceptible to fraud and 91 Indicators to watch for include, but are not Certification Statement at section 15, paragraph limited to, bedsores, falls, unexplained weight loss, A.3., available on CMS’s Web site at http:// abuse. and dehydration. www.cms.hhs.gov/CMSForms/downloads/ Nursing facilities that have identified 92 42 U.S.C. 1320a–7b(b). CMS855a.pdf. potentially problematic arrangements or

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practices can take a number of steps to or in part because of their past or facilities identify, address, and avoid reduce or eliminate the risk of an anti- anticipated referrals? problematic arrangements. kickback violation. Most importantly, • Manner in which the remuneration Available OIG guidance on the anti- the anti-kickback statute and the is determined. Does the remuneration kickback statute includes OIG Special corresponding regulations establish a take into account, directly or indirectly, Fraud Alerts and advisory bulletins. number of ‘‘safe harbors’’ for common the volume or value of business OIG also issues advisory opinions to business arrangements. The safe harbors generated? Is the remuneration specific parties about their particular protect arrangements from liability conditioned in whole or in part on business arrangements.95 A nursing under the statute. The following safe referrals or other business generated facility concerned about an existing or harbors are of most relevance to nursing between the parties? Is the arrangement proposed arrangement may request a facilities: itself conditioned, directly or indirectly, binding OIG advisory opinion regarding • Investment interests safe harbor (42 on the volume or value of Federal health whether the arrangement violates the CFR 1001.952(a)), care program business? Is there any Federal anti-kickback statute or other • Space rental safe harbor (42 CFR service provided other than referrals? OIG fraud and abuse authorities. 1001.952(b)), • Value of the remuneration. Is the Procedures for requesting an advisory • Equipment rental safe harbor (42 remuneration fair-market value in an opinion are set out at 42 CFR part 1008. CFR 1001.952(c)), arm’s-length transaction for legitimate, The safe harbor regulations (and • Personal services and management reasonable, and necessary services that accompanying Federal Register contracts safe harbor (42 CFR are actually rendered? Is the nursing preambles), fraud alerts and bulletins, 1001.952(d)), advisory opinions (and instructions for • facility paying an inflated rate to a Discount safe harbor (42 CFR potential referral source? Is the nursing obtaining them, including a list of 1001.952(h)), frequently asked questions), and other • facility receiving free or below-market- Employee safe harbor (42 CFR rate items or services from a provider or guidance are available on our Web site 1001.952(i)), • supplier? Is compensation tied, directly at http://oig.hhs.gov. Electronic health records items and or indirectly, to Federal health care The following discussion highlights services safe harbors (42 CFR program reimbursement? Is the several known areas of potential risk 1001.952(y)), and determination of fair-market value based under the anti-kickback statute. The • Managed care and risk sharing upon a reasonable methodology that is propriety of any particular arrangement arrangements safe harbors (42 CFR uniformly applied and properly can only be determined after a detailed 1001.952(m), (t), and (u)). examination of the attendant facts and To receive protection, an arrangement documented? • Nature of items or services circumstances. The identification of a must fit squarely in a safe harbor. Safe given practice or activity as ‘‘suspect’’ or harbor protection requires strict provided. Are items and services actually needed and rendered, as an area of risk does not mean it is compliance with all applicable necessarily illegal or unlawful, or that it conditions set out in the relevant commercially reasonable, and necessary 94 to achieve a legitimate business cannot be properly structured to fit in a regulation. Compliance with a safe safe harbor. It also does not mean that harbor is voluntary. Failure to comply purpose? • Potential Federal program impact. the practice or activity is not beneficial with a safe harbor does not mean an from a clinical, cost, or other arrangement is illegal per se. Does the remuneration have the potential to affect costs to any of the perspective. Instead, the areas identified Nevertheless, we recommend that below are practices that have a potential nursing facilities structure arrangements Federal health care programs or their beneficiaries? Could the remuneration for abuse and that should receive close to fit in a safe harbor whenever possible. scrutiny from nursing facilities. Nursing facilities should evaluate lead to overutilization or inappropriate utilization? potentially problematic arrangements • 1. Free Goods and Services with referral sources and referral Potential conflicts of interest. Would acceptance of the remuneration OIG has a longstanding concern about recipients that do not fit into a safe the provision of free goods or services harbor by reviewing the totality of the diminish, or appear to diminish, the objectivity of professional judgment? to an existing or potential referral facts and circumstances, including the source. There is a substantial risk that intent of the parties. Depending on the Are there patient safety or quality-of- care concerns? If the remuneration free goods or services may be used as a circumstances, some relevant factors vehicle to disguise or confer an include: relates to the dissemination of • information, is the information unlawful payment for referrals of Nature of the relationship between Federal health care program business. the parties. What degree of influence do complete, accurate, and not misleading? • Manner in which the arrangement For example, OIG gave the following the parties have, directly or indirectly, warning about free computers in the on the generation of business for each is documented. Is the arrangement properly and fully documented in preamble to the 1991 safe harbor other? regulations: • Manner in which participants were writing? Are the nursing facilities and selected. Were parties selected to outside providers and suppliers A related issue is the practice of giving participate in an arrangement in whole documenting the items and services away free computers. In some cases the they provide? Is the nursing facility computer can only be used as part of a particular service that is being provided, for 94 monitoring items and services provided Parties to an arrangement cannot obtain safe example, printing out the results of harbor protection by entering into a sham contract by outside providers and suppliers? Are laboratory tests. In this situation, it appears that complies with the written agreement arrangements actually conducted requirement of a safe harbor and appears, on paper, to meet all of the other safe harbor requirements, according to the terms of the written 95 While informative for guidance purposes, an but does not reflect the actual arrangement between agreements? It is the substance, not the OIG advisory opinion is binding only with respect the parties. In other words, in assessing compliance written form, of an arrangement that is to the particular party or parties that requested the with a safe harbor, the question is not whether the determinative. opinion. The analyses and conclusions set forth in terms in a written contract satisfy all of the safe OIG advisory opinions are fact-specific. harbor requirements, but whether the actual These inquiries—and appropriate Accordingly, different facts may lead to different arrangement satisfies the requirements. follow-up inquiries—can help nursing results.

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that the computer has no independent value • Equipment, computers, or software documented contemporaneously and apart from the service being provided and applications 98 that have independent prior to payment to the provider of the that the purpose of the free computer is not value to the nursing facility; supplies or services. To eliminate their to induce an act that is prohibited by the • DME or supplies offered by DME risk, nursing facilities should structure statute * * *. In contrast, sometimes the suppliers for patients covered by the services arrangements to comply with computer that is given away is a regular personal computer, which the physician is SNF Part A benefit; the personal services and management • 99 free to use for a variety of purposes in A laboratory phlebotomist contracts safe harbor whenever addition to receiving test results. In that providing administrative services; possible. situation the computer has a definite value to • A hospice nurse providing nursing Nursing facilities should also adopt the physician, and, depending on the services for non-hospice patients; and and implement policies and procedures circumstances, may well constitute an illegal • A registered nurse provided by a to minimize the risk of improper inducement.96 hospital. pharmaceutical decisions tainted by Similarly, with respect to free services, Nursing facilities should be mindful kickbacks. For example, depending on OIG observed in a Special Fraud Alert that, depending on the circumstances, the circumstances, a consultant that: these and similar arrangements may pharmacist employed by a long-term While the mere placement of a laboratory subject the parties to liability under the care pharmacy may face a potential employee in the physician’s office would not anti-kickback statute, if the requisite conflict of interest when making necessarily serve as an inducement intent is present. recommendations about a resident’s prohibited by the anti-kickback statute, the drug regimen if a drug that is not on the statute is implicated when the phlebotomist 2. Services Contracts pharmacy’s formulary is prescribed.100 performs additional tasks that are normally (a) Non-Physician Services Nursing facilities should establish the responsibility of the physician’s office Often kickbacks are disguised as policies that make clear that all staff. These tasks can include taking vital prescribing decisions must be based on signs or other nursing functions, testing for otherwise legitimate payments or are the physician’s office laboratory, or the best interests of the individual hidden in business arrangements that 101 performing clerical services. Where the appear, on their face, to be appropriate. patient. Drug switches may only be phlebotomist performs clerical or medical In addition to the provision of free made upon authorization of the functions not directly related to the goods and services, the provision or attending physician, medical director, collection or processing of laboratory or other licensed prescriber (except in specimens, a strong inference arises that he receipt of goods or services at non-fair- market value rates presents a heightened certain limited circumstances where or she is providing a benefit in return for the permitted by State law, e.g., permissible physician’s referrals to the laboratory. In risk of fraud and abuse. Nursing facilities often arrange for certain generic substitutions or changes allowed such a case, the physician, the phlebotomist, under a collaborative practice agreement and the laboratory may have exposure under services and supplies to be provided to the anti-kickback statute. This analysis residents by outside suppliers and between a physician and a pharmacist). applies equally to the placement of providers, such as pharmacies; clinical Nursing facilities should consider phlebotomists in other health care settings, laboratories; DME suppliers; ambulance implementing policies and procedures including nursing homes, clinics and providers; parenteral and enteral to monitor drug records for patterns that hospitals.97 nutrition (PEN) suppliers; diagnostic may indicate inappropriate drug switching or steering. All staff and The principles illustrated by each of testing facilities; rehabilitation practitioners involved in prescribing, the above examples also apply in the companies; and physical, occupational, administering, and managing nursing facility context. The provision and speech therapists. These pharmaceuticals should be educated on of goods or services that have relationships need to be scrutinized the legal prohibition against accepting independent value to the recipient or closely under the anti-kickback statute anything of value from a pharmacy or that the recipient would otherwise have to ensure that they are not vehicles to pharmaceutical manufacturer to to provide at its own expense confers a disguise kickbacks from the suppliers influence the choice of drug or to switch benefit on the recipient. This benefit and providers to the nursing facility to a resident from one drug to another. may constitute prohibited remuneration influence the nursing facility to refer under the anti-kickback statute, if one Federal health care program business to (b) Physician Services purpose of the remuneration is to the suppliers and providers. Nursing facilities also arrange for generate referrals of Federal health care To minimize their risk, nursing physicians to provide medical director, program business. facilities should periodically review quality assurance, and other services. Examples of suspect free goods and contractor and staff arrangements to Such physician oversight and services arrangements that warrant ensure that: (i) There is a legitimate careful scrutiny include: need for the services or supplies; (ii) the 99 42 CFR 1001.952(d). • Pharmaceutical consultant services, services or supplies are actually 100 Long-term care pharmacies, many of which medication management, or supplies provided and adequately documented; employ consultant pharmacists, have purchasing offered by a pharmacy; (iii) the compensation is at fair-market agreements with pharmaceutical manufacturers and value in an arm’s-length transaction; contracts with health plans. In addition, long-term • Infection control, chart review, or care pharmacies typically employ their own other services offered by laboratories or and (iv) the arrangement is not related formularies for some residents. As a result of these other suppliers; in any manner to the volume or value arrangements and contracts, long-term care of Federal health care program business. pharmacies may prefer that nursing facility Nursing facilities are well-advised to customers and residents use some drugs over 96 56 FR 35952, 35978 (July 29, 1991), ‘‘Medicare others. and State Health Care Programs: Fraud and Abuse; have all of the preceding facts 101 In all cases, prescribing decisions should be OIG Anti-Kickback Provisions,’’ available on our based upon the unique needs of the patients being Web site at http://oig.hhs.gov/fraud/docs/ 98 There is a safe harbor for electronic health served in that facility, established clinical safeharborregulations/072991.htm. records software arrangements at 42 CFR guidelines, and evidence of cost effectiveness. The 97 59 FR 65372, 65377 (December 19, 1994), 1001.952(y), which can be used by nursing determination of clinical efficacy and ‘‘Publication of OIG Special Fraud Alerts,’’ facilities. The safe harbor is available if all of its appropriateness of the particular drugs should available on our Web site at http://oig.hhs.gov/ conditions are satisfied. The safe harbor does not precede, and be paramount to, the consideration of fraud/docs/alertsandbulletins/121994.html. protect free hardware or equipment. costs.

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involvement at the nursing facility familiarize themselves with the is not determinative of an anti-kickback contributes to the quality of care discount safe harbor at 42 CFR statute violation. Rather, the appropriate furnished to the residents. These 1001.952(h). In particular, nursing question to ask is whether the discount physicians, however, may also be in a facilities should ensure that all is tied or linked, directly or indirectly, position to generate Federal health care discounts—including any rebates—are to referrals of other Federal health care program business for the nursing properly disclosed and accurately program business. When evaluating facility. For instance, these physicians reflected on their cost reports (and in whether an improper connection exists may refer patients for admission. They any claims as appropriate) filed with a between a discount offered to a nursing may order items and services that result Federal program. In addition, some facility and referrals of Federal health in an increased RUG or that are billable nursing facilities purchase products care program business billed by a separately by the nursing facility. through group purchasing organizations supplier or provider, suspect Physician arrangements need to be (GPO) to which they belong. Any arrangements include below-cost closely monitored to ensure that they discounts received from vendors who arrangements or arrangements at prices are not vehicles to pay physicians for sell their products under a GPO contract lower than the prices offered by the referrals. As with other services should be properly disclosed and supplier or provider to other customers contracts, nursing facilities should accurately reported on the nursing with similar volumes of business, but periodically review these arrangements facility’s cost reports. Although there is without Federal health care program to ensure that: (i) There is a legitimate a safe harbor for administrative fees referrals. Other suspect practices need for the services; (ii) the services are paid by a vendor to a GPO,103 that safe include, but are not limited to, provided; (iii) the compensation is at harbor does not protect discounts discounts that are coupled with fair-market value in an arm’s-length provided by a vendor to purchasers of exclusive provider agreements and transaction; and (iv) the arrangement is products. discounts or other pricing schemes made in conjunction with explicit or not related in any manner to the volume (b) Swapping or value of Federal health care program implicit agreements to refer other business. In addition, prudent nursing Nursing facilities often obtain facility business. In sum, if any direct or facilities will maintain discounts from suppliers and providers indirect link exists between a price contemporaneous documentation of the on items and services that the nursing offered by a supplier or provider to a arrangement, including, for example, facilities purchase for their own nursing facility for items or services that the compensation terms, time logs or account. In negotiating arrangements the nursing facility pays for out-of- other accounts of services rendered, and with suppliers and providers, a nursing pocket and referrals of Federal business the basis for determining compensation. facility should be careful that there is no for which the supplier or provider can Prudent facilities will also take steps to link or connection, explicit or implicit, bill a Federal health care program, the ensure that they have not engaged more between discounts offered or solicited anti-kickback statute is implicated. for business that the nursing facility medical directors or other physicians 4. Hospices than necessary for legitimate business pays for and the nursing facility’s purposes. They will also ensure that referral of business billable by the Hospice services for terminally ill compensation is commensurate with the supplier or provider directly to patients are typically provided in the skill level and experience reasonably Medicare or another Federal health care patients’ homes. In some cases, necessary to perform the contracted program. For example, nursing facilities however, a nursing facility is the services. To eliminate their risk, nursing should not engage in ‘‘swapping’’ patient’s home. In such cases, nursing facilities should structure services arrangements by accepting a low price facilities often arrange for the provision arrangements to comply with the from a supplier or provider on an item of hospice services in the nursing personal services and management or service covered by the nursing facility if the resident meets the hospice eligibility criteria and elects the hospice contracts safe harbor 102 whenever facility’s Part A per diem payment in benefit. These arrangements pose possible. exchange for the nursing facility referring to the supplier or provider several fraud and abuse risks. For 3. Discounts other Federal health care program example, to induce referrals, a hospice (a) Price Reductions business, such as Part B business may offer a nursing facility excluded from consolidated billing, that remuneration in the form of free nursing Public policy favors open and the supplier or provider can bill directly services for non-hospice patients; legitimate price competition in health to a Federal health care program. Such additional room and board care. Thus, the anti-kickback statute ‘‘swapping’’ arrangements implicate the payments; 105 or inflated payments for contains an exception for discounts anti-kickback statute and are not providing hospice services to the offered to customers that submit claims protected by the discount safe harbor. to the Federal health care programs, if Nursing facility arrangements with ‘‘Medicare and State Health Care Programs: Fraud the discounts are properly disclosed and clinical laboratories, DME suppliers, and Abuse; OIG Anti-Kickback Provisions,’’ available on our Web site at http://oig.hhs.gov/ accurately reported. However, to qualify and ambulance providers are some for the exception, the discount must be fraud/docs/safeharborregulations/072991.htm. examples of arrangements that may be 105 The Medicare reimbursement rate for routine in the form of a reduction in the price prone to ‘‘swapping’’ problems. hospice services provided in a nursing facility does of the good or service based on an arm’s- As we have previously explained in not include room and board expenses, so payment length transaction. In other words, the other guidance,104 the size of a discount for room and board may be the responsibility of the exception covers only reductions in the patient. CMS, ‘‘Medicare Benefit Policy Manual,’’ Pub. No. 100–02, chapter 9, section 20.3, available product’s or service’s price. 103 42 CFR 1001.952(j). on CMS’s Web site at http://www.cms.hhs.gov/ In conducting business, nursing 104 See, e.g., OIG’s September 22, 1999, letter Manuals/IOM/list.asp. For Medicaid patients, the facilities routinely purchase items and regarding ‘‘Discount Arrangements Between State will pay the hospice at least 95 percent of the services reimbursable by Federal health Clinical Laboratories and SNFs’’ (referencing OIG State’s Medicaid daily nursing facility rate, and the Advisory Opinion No. 99–2 issued February 26, hospice is then responsible for paying the nursing care programs. Therefore, they should 1999), available on our Web site at http:// facility for the beneficiary’s room and board. oig.hhs.gov/fraud/docs/safeharborregulations/ Section 1902(a)(13)(B) of the Act (42 U.S.C. 102 42 CFR 1001.952(d). rs.htm; 56 FR 35952 at the preamble (July 29, 1991), 1396a(a)(13)(B)).

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hospice’s patients.106 Nursing facilities Arrangements with Hospices.108 stands to forfeit by holding a bed given should be mindful that requesting or Whenever possible, nursing facilities the facility’s occupancy rate and patient accepting remuneration from a hospice should structure their relationships with acuity mix). Reserved bed arrangements may subject the nursing facility and the hospices to fit in a safe harbor, such as should be entered into only when there hospice to liability under the anti- the personal services and management is a bona fide need to have the kickback statute if the remuneration contracts safe harbor.109 arrangement in place. Reserved bed might influence the nursing facility’s 5. Reserved Bed Payments arrangements should serve the limited decision to do business with the purpose of securing needed beds, not hospice.107 Sometimes hospitals enter into future referrals. Some of the practices that are suspect reserved bed arrangements with nursing D. Other Risk Areas under the anti-kickback statute include: facilities to receive guaranteed or • A hospice offering free goods or priority placement for their discharged 1. Physician Self-Referrals patients.110 Under some reserved bed goods at below-fair-market value to Nursing facilities should familiarize induce a nursing facility to refer arrangements, hospitals provide remuneration to nursing facilities to themselves with the physician self- patients to the hospice; referral law (section 1877 of the Act),112 • A hospice paying room and board keep certain beds available and open. These arrangements could be commonly known as the ‘‘Stark’’ law. payments to the nursing facility in The physician self-referral law prohibits excess of what the nursing facility problematic under the anti-kickback statute if one purpose of the entities that furnish ‘‘designated health would have received directly from services’’ (DHS) from submitting—and Medicaid had the patient not been remuneration is to induce referrals of Federal health care program business Medicare from paying—claims for DHS enrolled in hospice. Any additional if the referral for the DHS comes from payment must represent the fair-market from the nursing facility to the hospital.111 Payments should not be a physician with whom the entity has a value of additional services actually prohibited financial relationship. This is provided to that patient that are not determined in any manner that reflects the volume or value of existing or true even if the prohibited financial included in the Medicaid daily rate; relationship is the result of inadvertence • potential referrals of Federal health care A hospice paying amounts to the or error. Violations can result in nursing facility for additional services program business from the nursing facility to the hospital. Examples of refunding of the prohibited payment that Medicaid considers to be included and, in cases of knowing violations, in its room and board payment to the some reserved bed payments that may give rise to an inference that the CMPs, and exclusion from the Federal hospice; arrangement is connected to referrals health care programs. Knowing • A hospice paying above fair-market include: (1) Payments that result in violations of the physician self-referral value for additional services that double-dipping by the nursing facility law can also form the basis for liability Medicaid does not consider to be (e.g., sham payments for beds that are under the False Claims Act. included in its room and board payment actually occupied or for which the Nursing facility services, including to the nursing facility; facility is otherwise receiving SNF services covered by the Part A PPS • A hospice referring its patients to a reimbursement); (2) payments for more payment, are not DHS for purposes of nursing facility to induce the nursing beds than the hospital legitimately the physician self-referral law. However, facility to refer its patients to the needs; and (3) excessive payments (e.g., laboratory services, physical therapy hospice; services, and occupational therapy • payments that exceed the nursing A hospice providing free (or below- facility’s actual costs of holding a bed or services are among the DHS covered by fair-market value) care to nursing the actual revenues a facility reasonably the statute.113 Nursing facilities that bill facility patients, for whom the nursing Part B for laboratory services, physical facility is receiving Medicare payment 108 OIG Special Fraud Alert on Fraud and Abuse therapy services, occupational therapy under the SNF benefit, with the in Nursing Home Arrangements With Hospices, services, or other DHS pursuant to the expectation that after the patient March 1998, available on our Web site at http:// consolidated billing rules are oig.hhs.gov/fraud/docs/alertsandbulletins/ exhausts the SNF benefit, the patient 114 hospice.pdf. considered entities that furnish DHS. will receive hospice services from that 109 42 CFR 1001.952(d). Accordingly, nursing facilities should hospice; and 110 The Provider Reimbursement Manual provides review all financial relationships with • A hospice providing staff at its as follows: physicians who refer or order such expense to the nursing facility. Providers are permitted to enter into reserved bed services to ensure compliance with the For additional guidance on agreements, as long as the terms of that agreement do not violate the provisions of the statute and physician self-referral law. arrangements with hospices, nursing regulations which govern provider agreements, When analyzing potential physician facilities should review OIG’s Special which (1) prohibit a provider from charging the self-referral situations, the following Fraud Alert on Nursing Home beneficiary or other party for covered services; (2) three-part inquiry is useful: prohibit a provider from discriminating against • Medicare beneficiaries, as a class, in admission Is there a referral (including, but not 106 Under the regulations at 42 CFR 418.80, policies; or (3) prohibit certain types of payments limited to, ordering a service for a hospices must generally furnish substantially all of in connection with referring patients for covered resident) from a physician for a the core hospice service themselves. Hospices are services. A provider may jeopardize its provider designated health service? If not, there permitted to furnish non-core services under agreement or incur other penalties if it enters into arrangements with other providers or suppliers, a reserved bed agreement that violates these including nursing facilities. 42 CFR 418.56; CMS, requirements. 112 42 U.S.C. 1395nn. ‘‘State Operations Manual,’’ Pub. No. 100–07, CMS, ‘‘Provider Reimbursement Manual,’’ Pub. 113 The complete list of DHS is found at section chapter 2, section 2082C, available on CMS’s Web No. 15–1, pt. 1, ch. 21, section 2105.3(D), available 1877(h)(6) of the Act (42 U.S.C. 1395nn(h)(6)) and site at http://www.cms.hhs.gov/Manuals/IOM/ on CMS’s Web site at http://www.cms.hhs.gov/ 42 CFR 411.351. list.asp. Manuals/PBM. 114 See 66 FR 856, 923 (January 4, 2001), 107 Under certain circumstances, a nursing facility 111 Nursing facilities should be mindful that ‘‘Medicare and Medicaid Programs; Physicians’ that knowingly refers to hospice patients who do conditioning the offer of reserved beds specifically Referrals to Health Care Entities With Which They not qualify for the hospice benefit may be liable for on referrals of Federal health care program Have Financial Relationships; Final Rule,’’ the submission of false claims. The Medicare beneficiaries by the hospital to the nursing facility available on CMS’s Web site at http:// hospice eligibility criteria are found at 42 CFR would raise concerns under the anti-kickback www.cms.hhs.gov/PhysicianSelfReferral/ 418.20. statute, even if no payments were made. Downloads/66FR856.pdf.

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is no physician self-referral issue. If yes, review their contracting processes to merely because the nursing facility then the next inquiry is: ensure that they obtain and maintain considers the Medicare or Medicaid • Does the physician (or an signed agreements covering all time payment to be inadequate (although a immediate family member) have a direct periods for which an arrangement is in nursing facility may accept donations or indirect financial relationship with place. Second, many exceptions require unrelated to the care of specific the nursing facility? A financial fair-market value compensation for patients). The supplemental payment relationship can be created by items and services actually needed and would be a prohibited charge imposed ownership, investment, or rendered. Thus, nursing facilities by the nursing facility on another party compensation; it need not relate to the should have appropriate processes for for services that are already covered by furnishing of DHS. If there is no making and documenting reasonable, Medicare or Medicaid.118 financial relationship, there is no consistent, and objective determinations 3. Medicare Part D physician self-referral issue. If there is a of fair-market value and for ensuring financial relationship, the next inquiry that needed items and services are Medicare Part D extends voluntary is: furnished or rendered. Nursing facilities prescription drug coverage to all 119 • Does the financial relationship fit in should also implement systems to track Medicare beneficiaries, including an exception? If not, the statute is non-monetary compensation provided individuals who reside in nursing violated. annually to referring physicians (such as facilities. Like all Medicare Detailed regulations regarding the free parking or gifts) and ensure that beneficiaries, nursing facility residents italicized terms are set forth at 42 CFR such compensation does not exceed who decide to enroll in Part D have the 120 411.351 through 411.361 (substantial limits set forth in the physician self- right to choose their Part D plans. additional explanatory material appears referral regulations. Part D plans offer a variety of drug in preambles to the final regulations: 66 Further information about the formularies and have arrangements with FR 856 (January 4, 2001), 69 FR 16054 physician self-referral law and a variety of pharmacies to dispense (March 26, 2004), 72 FR 51012 applicable regulations can be found on drugs to the plan’s enrollees. Nursing (September 5, 2007), and 73 FR 48434 CMS’s Web site at http:// facilities also enter into arrangements (August 19, 2008)).115 www.cms.hhs.gov/ with pharmacies to dispense drugs. Nursing facilities should pay PhysicianSelfReferral/. Information Typically, these are exclusive or semi- particular attention to their regarding CMS’s physician self-referral exclusive arrangements designed to ease relationships with attending physicians advisory opinion process can be found administrative burdens and coordinate accurate administration of drugs to who treat residents and with physicians at http://www.cms.hhs.gov/Physician residents. When a resident is selecting who are nursing facility owners, SelfReferral/07_advisory_opinions.asp# a particular Part D plan, it may be that investors, medical directors, or TopOfPage. consultants. The statutory and the Part D plan that best satisfies a regulatory exceptions are key to 2. Anti-Supplementation beneficiary’s needs does not have an compliance with the physician self- As a condition of its Medicare arrangement with the nursing facility’s referral law. Exceptions exist for many provider agreement and under pharmacy. CMS has stated that it common types of arrangements.116 To fit applicable Medicaid regulations and a expects nursing facilities ‘‘to work with in an exception, an arrangement must criminal provision precluding their current pharmacies to assure that squarely meet all of the conditions set supplementation of Medicaid payment they recognize the Part D plans chosen by that facility’s Medicare beneficiaries, forth in the exception. Importantly, it is rates, a nursing facility must accept the or, in the alternative, to add additional the actual relationship between the applicable Medicare or Medicaid pharmacies to achieve that parties, and not merely the paperwork, payment (including any beneficiary objective.’’ 121 CMS also suggests that a that must fit in an exception. Unlike the coinsurance or copayments authorized nursing facility ‘‘could contract anti-kickback safe harbors, which are under those programs), respectively, for exclusively with another pharmacy that voluntary, fitting in an exception is covered items and services as the contracts more broadly with Part D mandatory under the physician self- complete payment.117 For covered items plans.’’ 122 referral law. Compliance with a and services, a nursing facility may not CMS has explained that ‘‘[n]ursing physician self-referral law exception charge a Medicare or Medicaid homes may, and are encouraged to, does not immunize an arrangement beneficiary, or another person in lieu of provide information and education to under the anti-kickback statute. the beneficiary, any amount in addition residents on all available Part D Therefore, arrangements that implicate to what is otherwise required to be paid plans.’’ 123 When educating residents, the physician self-referral law should under Medicare or Medicaid (i.e., a cost- also be analyzed under the anti- sharing amount). For example, an SNF 118 See id.; see also CMS, ‘‘Skilled Nursing kickback statute. may not condition acceptance of a Facility Manual,’’ Pub. No. 12, chapter 3, sections In addition to reviewing particular beneficiary from a hospital upon 317 and 318, available on CMS’s Web site at arrangements, nursing facilities can receiving payment from the hospital or http://www.cms.hhs.gov/Manuals/PBM/list.asp. implement several systemic measures to the beneficiary’s family in an amount 119 Section 1860D–1 of the Act (42 U.S.C. 1395w– guard against violations. First, many of 101). greater than the SNF would receive 120 the potentially applicable exceptions Id. under the PPS. For Medicare and 121 See CMS Survey and Certification Group’s require written, signed agreements Medicaid beneficiaries, a nursing May 11, 2006, letter to State Survey Agency between the parties. Nursing facilities facility may not accept supplemental Directors, available on CMS’s Web site at http:// should enter into appropriate written payments, including, but not limited to, www.cms.hhs.gov/SurveyCertificationGenInfo/ agreements with physicians. In downloads/SCLetter06–16.pdf. This letter cash and free or discounted items and communicates CMS’s current guidance on these addition, nursing facilities should services, from a hospital or other source Part D issues. As the Part D program evolves, nursing facilities should keep current with any 115 Available on CMS’s Web site at http:// 117 Section 1866(a) of the Act (42 U.S.C. guidance issued by CMS and conform their policies www.cms.hhs.gov/PhysicianSelfReferral/. 1395cc(a)); 42 CFR 489.20; section 1128B(d) of the and procedures accordingly. 116 Section 1877(b)–(e) of the Act (42 U.S.C. Act (42 U.S.C. 1320a–7b(d)); 42 CFR 447.15; 42 CFR 122 Id. 1395nn(b)–(e)). See also 42 CFR 411.351–.357. 483.12(d)(3). 123 Id.

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nursing facilities should ensure that the information about how it applies can be prevention, detection, and resolution of information provided is complete and found on the Web site of the quality of care and compliance objective. It may be helpful for nursing Department’s Office for Civil Rights problems. Good compliance practices facilities to walk residents through the (OCR).127 Questions about the Privacy may include the development of a important details of the plans available Rule should be submitted to OCR.128 mechanism, such as a ‘‘dashboard,’’ 131 to the residents, including items such as The Privacy Rule gives covered designed to communicate effectively premium and cost-sharing structures, nursing facilities and other covered appropriate compliance and and to discuss the extent to which each entities some flexibility to create their performance-related information to a plan does, or does not, provide coverage own privacy procedures. Each nursing nursing facility’s board of directors and of the resident’s medications. Nursing facility should make sure that it is senior officers. The dashboard or other compliant with all applicable provisions facilities must be particularly careful, communication tool should include of the Privacy Rule, including standards however, not to act in ways that would quality of care information. Further frustrate a beneficiary’s freedom of for the use and disclosure of PHI with information and resources about quality choice in choosing a Part D plan. As and without patient authorization and the provisions pertaining to permitted of care dashboards are available on our stated by CMS, ‘‘[u]nder no 132 circumstances should a nursing home and required disclosures. Web site. require, request, coach or steer any The HIPAA Security Rule specifies a When communication tools such as resident to select or change a plan for series of administrative, technical, and dashboards are properly implemented any reason,’’ nor should it ‘‘knowingly physical security safeguards for covered and include quality of care information, and/or willingly allow the pharmacy entities to ensure the confidentiality of the directors and senior officers can, servicing the nursing home’’ to do the electronic PHI.129 Nursing facilities that among other things: (1) Demonstrate a same.124 Providing residents with are covered entities were required to be commitment to quality of care and foster complete and objective information compliant with the Security Rule by an organization-wide culture that values about all of the plans available to the April 20, 2005. The Security Rule quality of care; (2) improve the facility’s residents helps reduce the risk that requirements are flexible and scalable, quality of care through increased efforts to educate residents will lead to which allows each covered entity to awareness of and involvement in the steering. tailor its approach to compliance based oversight of quality of care issues; and on its own unique circumstances. Nursing facilities and their employees (3) track and trend quality of care data Covered entities may consider their and contractors should not accept any (e.g., State agency survey results, organization and capabilities, as well as payments from any plan or pharmacy to outcome care and delivery data, and costs, in designing their security plans influence a beneficiary to select a staff retention and turnover data) to particular plan. Beneficiary freedom of and procedures. Questions about the identify potential quality of care choice in choosing a Part D Plan is HIPAA Security Rule should be problems, identify areas in which the ensured by section 1860D–1 of the submitted to CMS.130 125 organization is providing high quality of Act. Nursing facilities may not limit IV. Other Compliance Considerations this choice in the Part D program. care, and measure progress on quality of A. An Ethical Culture care initiatives. Each dashboard should E. HIPAA Privacy and Security Rules be tailored to meet the specific needs As laid out in the 2000 Nursing and sophistication of the implementing As of April 14, 2003, all nursing Facility CPG, it is important for a facilities that conduct electronic nursing facility to have an nursing facility, its board members, and transactions governed by HIPAA are organizational culture that promotes senior officers. OIG views the use of required to comply with the Privacy compliance. OIG commends nursing dashboards, and similar tools, as a 126 Rule adopted under HIPAA. facilities that have adopted a code of helpful compliance practice that can Generally, the HIPAA Privacy Rule conduct that details the fundamental lead to improved quality of care and addresses the use and disclosure of principles, values, and framework for assist the board members and senior individuals’ personally identifiable action within the organization, and that officers in fulfilling, respectively, their health information (called ‘‘protected articulates the organization’s oversight and management health information’’ or ‘‘PHI’’) by commitment to compliance. OIG responsibilities. covered nursing facilities and other encourages those facilities that have not In summary, the nursing facility covered entities. The Privacy Rule also yet adopted codes of conduct to do so. should endeavor to develop a culture covers individuals’ rights to understand In addition to codes of conduct, an that values compliance from the top and control how their health organization can adopt other measures information is used. The Privacy Rule down and fosters compliance from the to express its commitment to bottom up. Such an organizational also requires nursing facilities to compliance. First, and foremost, a culture is the foundation of an effective disclose PHI to the individual who is nursing facility’s leadership should compliance program. the subject of the PHI or to the Secretary foster an organizational culture that of the Department of Health and Human values, and even rewards, the Services under certain circumstances. 131 Much like the dashboard of a car, a ‘‘dashboard’’ is an instrument that provides the The Privacy Rule and helpful 127 OCR, ‘‘HHS—Office of Civil Rights—HIPAA,’’ recipient with a user-friendly (i.e., presented in an available at http://www.hhs.gov/ocr/hipaa/. appropriate context) snapshot of the key pieces of 124 Id. 128 Nursing facilities can contact OCR by information needed by the recipient to oversee and 125 42 U.S.C. 1395w–101. following the instructions on its Web site, available manage effectively the operation of an organization 126 at http://www.hhs.gov/ocr/contact.html, or by 45 CFR parts 160 and 164, subparts A and E; and forestall potential problems, while avoiding available at http://www.hhs.gov/ocr/hipaa/ calling the HIPAA toll-free number, (866) 627–7748. information overload. finalreg.html. In addition to the HIPAA Privacy and 129 45 CFR parts 160 and 164, subparts A and C, 132 Security Rules, facilities should also take steps to available on CMS’s Web site at http://www.cms.gov/ See, e.g., OIG, ‘‘Driving for Quality in Long- adhere to the privacy and confidentiality SecurityStandard/02_Regulations.asp. Term Care: A Board of Director’s Dashboard— requirements for residents’ personal and clinical 130 Nursing facilities can contact CMS by Government-Industry Roundtable,’’ available on our records, 42 CFR 483.10(e), and any applicable State following the instructions on its Web site, http:// Web site at http://oig.hhs.gov/fraud/docs/ privacy laws. www.cms.hhs.gov/HIPAAGenInfo/. complianceguidance/Roundtable013007.pdf.

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B. Regular Review of Compliance to the appropriate Federal and State Government, a nursing facility should Program Effectiveness authorities.135 The reporting should provide all relevant information occur within a reasonable period, but regarding the alleged violation of Nursing facilities should regularly 136 review the implementation and not longer than 60 days, after applicable Federal or State law(s) and determining that there is credible the potential financial or other impact of execution of their compliance program 137 systems and structures. This review evidence of a violation. Prompt the alleged violation. The compliance should be conducted periodically, voluntary reporting will demonstrate officer, under advice of counsel and typically on annual basis. The the nursing facility’s good faith and with guidance from governmental willingness to work with governmental assessment should include an authorities, may be requested to authorities to correct and remedy the evaluation of the overall success of the continue to investigate the reported problem. In addition, prompt reporting program, as well as each of the basic violation. Once the investigation is of misconduct will be considered a elements of a compliance program completed, and especially if the mitigating factor by OIG in determining individually, which include: investigation ultimately reveals that administrative sanctions (e.g., penalties, • Designation of a compliance officer criminal, civil, or administrative assessments, and exclusion) if the and compliance committee; violations have occurred, the reporting nursing facility becomes the • Development of compliance compliance officer should notify the subject of an OIG investigation.138 policies and procedures, including appropriate governmental authority of To encourage providers to make the outcome of the investigation. This standards of conduct; voluntary disclosures to OIG, OIG • Developing open lines of notification should include a published the Provider Self-Disclosure description of the impact of the alleged communication; Protocol.139 When reporting to the • Appropriate training and teaching; violation on the applicable Federal • health care programs or their Internal monitoring and auditing; 135 • Appropriate Federal and State authorities beneficiaries. Response to detected deficiencies; include OIG, CMS, the Criminal and Civil Divisions and of the Department of Justice, the U.S. Attorney in VI. Conclusion • Enforcement of disciplinary relevant districts, the Food and Drug standards. Administration, the Department’s Office for Civil In today’s environment of increased Rights, the Federal Trade Commission, the Drug scrutiny of corporate conduct and Nursing facilities seeking guidance for Enforcement Administration, the Federal Bureau of establishing and evaluating their Investigation, and the other investigative arms for increasingly large expenditures for compliance operations should review the agencies administering the affected Federal or health care, it is imperative for nursing OIG’s 2000 Nursing Facility CPG, which State health care programs, such as the State facilities to establish and maintain Medicaid Fraud Control Unit, the Defense Criminal effective compliance programs. These explains in detail the fundamental Investigative Service, the Department of Veterans elements of a compliance program.133 Affairs, the Health Resources and Services programs should foster a culture of Nursing facilities may also wish to Administration, and the Office of Personnel compliance and a commitment to Management (which administers the Federal consult quality of care corporate delivery of quality health care that Employee Health Benefits Program). begins at the highest levels and extends integrity agreements (CIA) entered into 136 To qualify for the ‘‘not less than double between OIG and parties settling damages’’ provision of the False Claims Act, the throughout the organization. This specific matters.134 Other issues a provider must provide the report to the Government supplemental CPG is intended as a nursing facility may want to evaluate within 30 days after the date when the provider first resource for nursing facilities to help obtained the information. 31 U.S.C. 3729(a). them operate effective compliance are whether there has been an allocation 137 Some violations may be so serious that they programs that decrease errors, fraud, of adequate resources to compliance warrant immediate notification to governmental initiatives; whether there is a reasonable authorities prior to, or simultaneous with, and abuse and increase quality of care timetable for implementation of the commencing an internal investigation. By way of and compliance with Federal health example, OIG believes a provider should care program requirements for the compliance measures; whether the immediately report misconduct that: (i) Is a clear compliance officer and compliance violation of administrative, civil, or criminal laws; benefit of the nursing facilities and their committee have been vested with (ii) poses an imminent danger to a patient’s safety; residents. (iii) has a significant adverse effect on the quality Dated: September 24, 2008. sufficient autonomy, authority, and of care provided to Federal health care program accountability to implement and enforce beneficiaries; or (iv) indicates evidence of a Daniel R. Levinson, appropriate compliance measures; and systemic failure to comply with applicable laws or Inspector General. whether compensation structures create an existing corporate integrity agreement, regardless of the financial impact on Federal health care [FR Doc. E8–22796 Filed 9–29–08; 8:45 am] undue pressure to pursue profit over programs. BILLING CODE 4152–01–P compliance. 138 OIG has published criteria setting forth those factors that OIG takes into consideration in V. Self-Reporting determining whether it is appropriate to exclude an DEPARTMENT OF HEALTH AND If the compliance officer, compliance individual or entity from program participation pursuant to section 1128(b)(7) of the Act (42 U.S.C. HUMAN SERVICES committee, or a member of senior 1320a–7(b)(7)) for violations of various fraud and management discovers credible abuse laws. See 62 FR 67392 (December 24, 1997), National Institutes of Health evidence of misconduct from any source ‘‘Criteria for Implementing Permissive Exclusion and, after a reasonable inquiry, believes Authority Under Section 1128(b)(7) of the Social Government-Owned Inventions; Security Act.’’ Availability for Licensing that the misconduct may violate 139 For details regarding the Provider Self- criminal, civil, or administrative law, Disclosure Protocol, including timeframes and AGENCY: National Institutes of Health, required information, see 63 FR 58399 (October 30, the nursing facility should promptly Public Health Service, HHS. report the existence of the misconduct 1998), ‘‘Publication of the OIG’s Provider Self- Disclosure Protocol,’’ available on our Web site at ACTION: Notice. http://oig.hhs.gov/authorities/docs/ 133 2000 Nursing Facility CPG, supra note 2, at selfdisclosure.pdf. See also OIG’s April 15, 2008, SUMMARY: The inventions listed below 14289. Open Letter to Health Care Providers, available on 134 OIG, ‘‘HHS—OIG—Fraud Prevention & our Web site at http://oig.hhs.gov/fraud/docs/ are owned by an agency of the U.S. Detection—Corporate Integrity Agreements,’’ openletters/OpenLetter4–15–08.pdf; OIG’s April 24, available on our Web site at http://oig.hhs.gov/ 2006, Open Letter to Health Care Providers, fraud/docs/openletters/ fraud/cias.html. available on our Web site at http://oig.hhs.gov/ Open%20Letter%20to%20Providers%202006.pdf.

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Government and are available for 1. T Fukada et al. Generation of a Relevant Publication: RB Kapust and licensing in the U.S. in accordance with mouse with conditionally activated DS Waugh. Controlled intracellular 35 U.S.C. 207 to achieve expeditious signaling through the BMP receptor, processing of fusion proteins by TEV commercialization of results of federally ALK2. Genesis. 2006;44:159–167. protease. Protein Expr Purif. 2000 funded research and development. 2. L Kan et al. Transgenic mice Jul;19(2):312–318. Foreign patent applications are filed on overexpressing BMP4 develop a Patent Status: HHS Reference No. E– selected inventions to extend market fibrodysplasia ossificans progressiva 139–2008/0—Research Material. Patent coverage for companies and may also be (FOP)-like phenotype. Am J Path. 2004 protection is not being pursued for this available for licensing. Oct;165(4):1107–1115. technology. ADDRESSES: Licensing information and 3. EM Shore et al. A recurrent Licensing Status: Available for non- copies of the U.S. patent applications mutation in the BMP type I receptor exclusive licensing. listed below may be obtained by writing ACVR1 causes inherited and sporadic Licensing Contact: Steve Standley, to the indicated licensing contact at the fibrodysplasia ossificans progressive. PhD; 301–435–4074; Office of Technology Transfer, National Nat Genet. 2006 May;38(5):525–527. [email protected]. Patent Status: HHS Reference No. E– Institutes of Health, 6011 Executive 328–2008/0—Research Material. Patent Association of the ECHDCI/RNF146 Boulevard, Suite 325, Rockville, protection is not being pursued for this Gene Region on Human Chromosome Maryland 20852–3804; telephone: 301– technology. 6q With Breast Cancer Risk and 496–7057; fax: 301–402–0220. A signed Licensing Status: Available for non- Protection Confidential Disclosure Agreement will exclusive licensing. Description of Technology: The be required to receive copies of the Licensing Contact: Steve Standley, technology describes a genetic locus patent applications. Ph.D.; 301–435–4074; (ECHDC l/RNF146 gene region on Transgenic Mice With Conditionally- [email protected]. human chromosome 6q) that may be Enhanced Bone Morphogen Protein Production of Endotoxin Free TEV predictive for risk of breast cancer in (BMP) Signaling: A Model for Human Protease relatives of individuals diagnosed with Bone Diseases breast cancer. Furthermore, the Description of Technology: This Description of Technology: This invention provides evidence that one or technology relates to an efficient more polymorphism alleles in technology relates to novel animal method of purifying proteins. More models of several human bone diseases chromosome 6q22.33 indicates a lower specifically, this technology relates to a risk or increased risk of developing that have been linked to enhanced BMP method of obtaining an endotoxin-free signaling. More specifically, this mouse breast cancer in individuals. ‘TEV protease,’ a common name for a 27 Applications: model expresses a mutant receptor for kDa catalytic domain of the Nuclear • The invention has the potential of BMP, known as Alk2 that is always Inclusion a (NIa) protein from Tobacco being developed into a predictive actively signaling. This receptor is Etch Virus. TEV protease is a site- diagnostic test, for people at a risk of under the control of the Cre-loxP specific protease that can be used to breast cancer, together with other risk system, which allows control of cleave purified fusion proteins that have factors for the disease, such as age, expression of the mutant Alk2 in both been engineered to contain a TEV parity, and other genetic contributions a developmental and tissue-specific protease cleavage site. This is typically especially for predicting risk of breast manner. As a result, the enhanced done to enable stable expression and cancer in individuals free of BRCA1 and signaling conditions exhibited in purification of a protein of interest. The BRCA2 polymorphism. multiple human bone-related diseases technology consists of (a) the DNA • The invention may help to develop can be studied with the same animals. construct (created by Dom Esposito) to pharmaceuticals through elucidation of Applications: The mouse model can allow expression of the protein in insect the contributing biochemical, etiologic be applied to the study of BMP cells, (b) the insect cell line, and (c) the pathway. signaling-related human diseases such purification protocol. TEV protease Advantages: This study was a clinical as fibrodysplasia ossificans progressiva, itself is expressed as a fusion to MBP study in a cohort of individuals. Thus which involves the postnatal (Maltose Binding Protein) to enhance the relevance of the data is of transformation of connective tissue into solubility. considerable significance. bone. Another example of BMP Advantages: TEV protease expressed Development Status: Validation of the signaling-related disease is and produced in E. coli contains correlation between the polymorphisms Craniosynostosis, which involves the substantial amounts of endotoxin, and risk of breast cancer is ongoing premature closing of the sutures in which presents a barrier to use where using different cohorts. childhood so that normal brain and the final purified product is required to Inventors: Bert Gold et al. (NCI). skull growth are inhibited. This mouse be endotoxin-free. It is important to note Patent Status: U.S. Provisional model can potentially be used in other that all proteins which are used for Application No. 61/023,936 filed 28 Jan human diseases where BMP signaling therapeutic purposes must have little or 2008 (HHS Ref. No. E–065–2008/0–US– might play a pivotal role, for example no endotoxin for safety reasons. The 01). cleft lip and cleft palate, breast cancer, method of obtaining an endotoxin-free Licensing Contact: Surekha Vathyam, osteoarthritis, lung fibrosis, multiple TEV protease is to express and purify PhD; 301–435–4076; myeloma, juvenile polyposis, cephalic TEV protease using a baculovirus/insect [email protected]. neural tube closure defects, diabetes and cell expression system, instead of E. coli Novel Chemoattractant-Based Toxins to other types of blood glucose control which results in an endotoxin-free TEV Improve Vaccine Immune Responses problems, and pulmonary hypertension. protease. Development Status: Early-stage Development Status: Early stage for Cancer and Infectious Diseases development. development. Description of Technology: Cancer is Inventors: Yuji Mishina, Manas Ray, Inventors: William K. Gillette, one of the leading causes of death in the Greg Scott (NIEHS). Dominic Esposito, and Ralph Hopkins United States and it is estimated that Relevant Publications: (SAIC/NCI). there will be more than half a million

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deaths caused by cancer in 2008. A expected to increase from $135 million as amended. The grant applications and major drawback of the current in 2007 to more than $8 billion in 2012. the discussions could disclose chemotherapy-based therapeutics is the • The technology platform has confidential trade secrets or commercial cytotoxic side-effects associated with additional market in treating several property such as patentable material, them. Thus there is a dire need to other clinical problems such as and personal information concerning develop new therapeutic strategies with autoimmune diseases. individuals associated with the grant fewer side-effects. Immuno-therapy has Development Status: The technology applications, the disclosure of which taken a lead among the new therapeutic is currently in the pre-clinical stage of would constitute a clearly unwarranted approaches. Enhancing the innate development. invasion of personal privacy. Inventors: Arya Biragyn (NIA), Dolgor immune response of an individual has Name of Committee: National Cancer been a key approach for the treatment Bataar (NIA), et al. Institute Special Emphasis Panel; Review of against different diseases such as cancer Related Publications: Education and Career Development Award and infectious diseases. 1. Copy of manuscript from this Applications. This technology involves the technology can be provided once Date: October 24, 2008. generation of novel chemoattractant accepted for publication. Time: 10 a.m. to 1 p.m. toxins that deplete the T regulatory cells 2. M Coscia, A Biragyn. Cancer Agenda: To review and evaluate grant (Treg) or other immunosuppressive or immunotherapy with chemoattractant applications. hyperactivated cells locally. Treg peptides. Semin Cancer Biol 2004 Place: Sheraton Sand Key Resort, 1160 controls activation of immune responses Jun;14(3):209–218. Gulf Boulevard, Clearwater, FL 33767. by suppressing the induction of 3. R Schiavo et al. Chemokine Contact Person: Robert Bird, PhD, adaptive immune responses, receptor targeting efficiently directs Scientific Review Officer, Resources and particularly T cell responses. antigens to MHC class I pathways and Training Review Branch, Division of Immunosuppressive cells such as tumor elicits antigen-specific CD8+ T-cell Extramural Activities, National Cancer infiltrating macrophages or NKT and responses. Blood 2006 Jun 15;107 Institute, 6116 Executive Boulevard, Room 8113, Bethesda, MD 20892–8328, 301–496– other cells down regulate antitumor (12):4597–4605. 7978, [email protected]. immune responses. The chemoattractant Patent Status: U.S. Patent Application toxins consist of a toxin moiety fused filed 28 Mar 2008, claiming priority to Name of Committee: National Cancer with a chemokine receptor ligand, 30 Sep 2005 (HHS Reference No. Institute Special Emphasis Panel; Cancer E–027–2005/0–US–06). Prevention Research Small Grant Program chemokines and other chemoattractants (R03). that enables specific targeting and Licensing Status: Available for non- exclusive or exclusive licensing. Date: October 30–31, 2008. delivery to the Treg cells. This Time: 8 a.m. to 5 p.m. Licensing Contact: Jennifer Wong; technology is advantageous over the Agenda: To review and evaluate grant more harmful antibodies and chemicals 301–435–4633; [email protected]. applications. that are currently used for the systemic Collaborative Research Opportunity: Place: Renaissance M Street Hotel, Marriot, depletion of Treg cells. The current The NIA Laboratory of Immunology is 1143 New Hampshire Avenue NW., technology can be used therapeutically seeking statements of capability or Washington, DC 20037. in a variety of ways. They can be used interest from parties interested in Contact Person: Irina Gordienko, PhD, together with vaccines to increase collaborative research to further Scientific Review Officer, Scientific Review efficacy of the vaccine for the treatment develop, evaluate, or commercialize and Logistics Branch, Division of Extramural of cancer, and can be used to locally novel chemoattractant-based toxins. Activities, National Cancer Institute, NIH, deplete Treg cells or other immuno Please contact John D. Hewes, Ph.D. at 6116 Executive Blvd., Rm. 7073, Bethesda, suppressive cells to induce cytolytic cell 301–435–3121 or [email protected] MD 20892, 301–594–1566, responses at the tumor site or to for more information. [email protected]. eliminate chronic infectious diseases Dated: September 18, 2008. Name of Committee: National Cancer Institute Special Emphasis Panel; such as HIV and tuberculosis. Richard U. Rodriguez, Community Clinical Oncology Program Applications: Director, Division of Technology Development • New chemoattractant based toxins (CCOP). and Transfer, Office of Technology Transfer, Date: November 5, 2008. targeted towards Treg cells. National Institutes of Health. • New chemoattractant based toxins Time: 8 a.m. to 5 p.m. [FR Doc. E8–22889 Filed 9–29–08; 8:45 am] targeted towards immunosuppressive Agenda: To review and evaluate grant NKT, and macrophages. BILLING CODE 4140–01–P applications. • New chemoattractant based toxins Place: Bethesda Marriott, 5151 Pooks Hill Road, Bethesda, MD 20814. targeted towards local depletion of DEPARTMENT OF HEALTH AND Contact Person: Gerald G. Lovinger, PhD, hyperactivated CD4 T cells to treat HUMAN SERVICES Scientific Review Administrator, Special autoimmune diseases. • Review and Logistics Branch, Division of Chemoattractant based toxins National Institutes of Health Extramural Activities, National Cancer depleting Treg cells or other Institute, 6116 Executive Blvd., Room 8101, immunosuppressive cells causing National Cancer Institute; Notice of Bethesda, MD 20892–8329, 301–496–7987, enhanced vaccine immune responses. Closed Meetings [email protected]. • Novel immunotherapy by (Catalogue of Federal Domestic Assistance increasing vaccine efficacy against Pursuant to section 10(d) of the Federal Advisory Committee Act, as Program Nos. 93.392, Cancer Construction; cancer and infectious diseases. 93.393, Cancer Cause and Prevention Market: amended (5 U.S.C. Appendix 2), notice • Research; 93.394, Cancer Detection and 565,650 deaths from cancer related is hereby given of the following Diagnosis Research; 93.395, Cancer diseases estimated in 2008. meetings. Treatment Research; 93.396, Cancer Biology • The technology platform involving The meetings will be closed to the Research; 93.397, Cancer Centers Support; novel chemo-attractant based toxins can public in accordance with the 93.398, Cancer Research Manpower; 93.399, be used to improve vaccine immune provisions set forth in sections Cancer Control, National Institutes of Health, responses. The cancer vaccine market is 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., HHS)

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Dated: September 23, 2008. Bethesda, MD 20892–5452, (301) 594–8894, DEPARTMENT OF HEALTH AND Jennifer Spaeth, [email protected]. HUMAN SERVICES Director, Office of Federal Advisory Name of Committee: National Institute of Committee Policy. Diabetes and Digestive and Kidney Diseases National Institutes of Health Initial Review Group, Diabetes, [FR Doc. E8–22921 Filed 9–29–08; 8:45 am] Endocrinology and Metabolic Diseases B Eunice Kennedy Shriver National BILLING CODE 4140–01–P Subcommittee. Institute of Child Health & Human Date: October 21–23, 2008. Development; Notice of Closed Open: October 21, 2008, 4 p.m. to 5 p.m. Meeting DEPARTMENT OF HEALTH AND Agenda: To review procedures and discuss HUMAN SERVICES policy. Pursuant to section 10(d) of the Place: Hilton Washington/Rockville, 1750 Federal Advisory Committee Act, as National Institutes of Health Rockville Pike, Rockville, MD 20852. amended (5 U.S.C. Appendix 2), notice Closed: October 22, 2008, 8 a.m. to 5 p.m. National Institute of Diabetes and Agenda: To review and evaluate grant is hereby given of the following Digestive and Kidney Diseases; Notice applications. meeting. of Meetings Place: Hilton Washington/Rockville, 1750 The meeting will be closed to the Rockville Pike, Rockville, MD 20852. public in accordance with the Pursuant to section 10(d) of the Closed: October 23, 2008, 8 a.m. to 5p.m. provisions set forth in sections Federal Advisory Committee Act, as Agenda: To review and evaluate grant 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., amended (5 U.S.C. Appendix 2), notice applications. as amended. The grant applications and is hereby given of the following Place: Hilton Washington/Rockville, 1750 the discussions could disclose meetings. Rockville Pike, Rockville, MD 20852. confidential trade secrets or commercial The meetings will be open to the Contact Person: John F. Connaughton, PhD, property such as patentable material, public as indicated below, with Chief, Chartered Committees Section, Review Branch, DEA, NIDDK, National Institutes of and personal information concerning attendance limited to space available. Health, Room 753, 6707 Democracy individuals associated with the grant Individuals who plan to attend and Boulevard, Bethesda, MD 20892–5452, applications, the disclosure of which need special assistance, such as sign (301)594–7797, would constitute a clearly unwarranted language interpretation or other [email protected]. invasion of personal privacy. reasonable accommodations, should Name of Committee: National Institute of Name of Committee: National Institute of notify the Contact Person listed below Diabetes and Digestive and Kidney Diseases Child Health and Human Development in advance of the meeting. Initial Review Group; Kidney, Urologic and Special Emphasis Panel; Iron / Malaria. The meetings will be closed to the Hematologic Diseases D Subcommittee. Date: October 22, 2008. public in accordance with the Date: October 22–23, 2008. Time: 8 a.m. to 5 p.m. provisions set forth in sections Open: October 22, 2008, 8 a.m. to 8:30 a.m. Agenda: To review and evaluate grant 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Agenda: To review procedures and discuss applications. policy. as amended. The grant applications and Place: Hyatt Regency Bethesda, One Place: Gaithersburg Marriott Bethesda Metro Center, 7400 Wisconsin the discussions could disclose Washingtonian Center, 9751 Washingtonian Avenue, Bethesda, MD 20814. confidential trade secrets or commercial Boulevard, Gaithersburg, MD 20878. Contact Person: Rita Anand, PhD., property such as patentable material, Closed: October 22, 2008, 8:30 a.m. to 5 Scientific Review Administrator, Division of and personal information concerning p.m. Scientific Review, National Institute of Child individuals associated with the grant Agenda: To review and evaluate grant Health, and Human Development, NIH, 6100 applications, the disclosure of which applications. Executive Blvd. Room 5B01, Bethesda, MD would constitute a clearly unwarranted Place: Gaithersburg Marriott 20892, (301) 496–1487, invasion of personal privacy. Washingtonian Center, 9751 Washingtonian [email protected]. Boulevard, Gaithersburg, MD 20878. (Catalogue of Federal Domestic Assistance Name of Committee: National Institute of Closed: October 23, 2008, 8 a.m. to 5 p.m. Program Nos. 93.864, Population Research; Diabetes and Digestive and Kidney Diseases Agenda: To review and evaluate grant 93.865, Research for Mothers and Children; Initial Review Group, Digestive Diseases and applications. 93.929, Center for Medical Rehabilitation Nutrition C Subcommittee. Place: Gaithersburg Marriott Research; 93.209, Contraception and Date: October 15–16, 2008. Washingtonian Center, 9751 Washingtonian Infertility Loan Repayment Program, National Open: October 15, 2008, 8 a.m. to 8:30 a.m. Boulevard, Gaithersburg, MD 20878. Institutes of Health, HHS) Agenda: To review procedures and discuss Contact Person: Barbara A Woynarowska, Dated: September 19, 2008. policy. PhD, Scientific Review Administrator, Place: Crowne Plaza Washington National Review Branch, DEA, NIDDK, National Jennifer Spaeth, Airport, 1480 Jefferson Davis Hwy, Arlington, Institutes of Health, Room 754, 6707 Director, Office of Federal Advisory VA 22202. Democracy Boulevard, Bethesda, MD 20892– Committee Policy. Closed: October 15, 2008, 8:30 a.m. to 5 5452, (301) 402–7172, [FR Doc. E8–22894 Filed 9–29–08; 8:45 am] p.m. [email protected]. BILLING CODE 4140–01–P Agenda: To review and evaluate grant (Catalogue of Federal Domestic Assistance applications. Program Nos. 93.847, Diabetes, Place: Crowne Plaza Washington National Endocrinology and Metabolic Research; Airport, 1480 Jefferson Davis Hwy, Arlington, DEPARTMENT OF HEALTH AND 93.848, Digestive Diseases and Nutrition VA 22202. HUMAN SERVICES Closed: October 16, 2008, 8 a.m. to 12 p.m. Research; 93.849, Kidney Diseases, Urology Agenda: To review and evaluate grant and Hematology Research, National Institutes National Institutes of Health applications. of Health, HHS) Place: Crowne Plaza Washington National Dated: September 19, 2008. Eunice Kennedy Shriver National Airport, 1480 Jefferson Davis Hwy, Arlington, Jennifer Spaeth, Institute of Child Health & Human VA 22202. Development; Notice of Closed Director, Office of Federal Advisory Contact Person: Dan E. Matsumoto, PhD, Committee Policy. Meeting Scientific Review Officer, Review Branch, DEA, NIDDK, National Institutes of Health, [FR Doc. E8–22892 Filed 9–29–08; 8:45 am] Pursuant to section 10(d) of the Room 749, 6707 Democracy Boulevard, BILLING CODE 4140–01–P Federal Advisory Committee Act, as

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amended (5 U.S.C. Appendix 2), notice individuals associated with the grant been assigned to the United States of is hereby given of the following applications, the disclosure of which America. meeting. would constitute a clearly unwarranted The prospective exclusive license The meeting will be closed to the invasion of personal privacy. territory may be the United States and public in accordance with the Name of Committee: National Institute of Europe, and the field of use may be provisions set forth in sections Child Health and Human Development limited to therapeutics based on CNS 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Special Emphasis Panel; Prenatal metastases of extra-CNS origin cancers. as amended. The grant applications and Programming of Reproductive Health and DATES: the discussions could disclose Disease. Only written comments and/or confidential trade secrets or commercial Date: October 9, 2008. license applications which are received property such as patentable material, Time: 1 p.m. to 3 p.m. by the National Institutes of Health on and personal information concerning Agenda: To review and evaluate grant or before December 1, 2008 will be applications. considered. individuals associated with the grant Place: National Institutes of Health, 6100 applications, the disclosure of which Executive Boulevard, Room 5B01, Rockville, ADDRESSES: Requests for copies of the would constitute a clearly unwarranted MD 20852 (Telephone Conference Call). patent and/or patent applications, invasion of personal privacy. Contact Person: Dennis E. Leszczynski, inquiries, comments and other materials Name of Committee: National Institute of PhD, Scientific Review Administrator, relating to the contemplated exclusive Child Health and Human Development Division of Scientific Review, National license should be directed to: Whitney Special Emphasis Panel; Gender Youth and Institute of Child Health and Human A. Hastings, M.S., Technology Licensing HIV RFA Development, NIH, 6100 Executive Blvd., Specialist, Office of Technology Date: October 23–24, 2008. Rm. 5B01, Bethesda, MD 20892, (301) 435– 6884, [email protected]. Transfer, National Institutes of Health, Time: 8 a.m. to 6 p.m. 6011 Executive Boulevard, Suite 325, Agenda: To review and evaluate grant (Catalogue of Federal Domestic Assistance applications. Program Nos. 93.864, Population Research; Rockville, MD 20852–3804. Telephone: Place: Doubletree Hotel, Washington, DC 93.865, Research for Mothers and Children; (301) 451–7337; Facsimile: (301) 402– 20005. 93.929, Center for Medical Rehabilitation 0220; E-mail: [email protected]. Contact Person: Carla T. Walls, PhD, Research; 93.209, Contraception and SUPPLEMENTARY INFORMATION: The Scientific Review Administrator, Division of Infertility Loan Repayment Program, National invention provides a method of treating Scientific Review, National Institute of Child Institutes of Health, HHS) Health and Human Development, NIH, 6100 CNS metastasis of cancers of extra-CNS Executive Blvd., Room 5B01, Bethesda, MD Dated: September 19, 2008. origin. More specifically, the method 20892, (301) 435–6898, [email protected]. Jennifer Spaeth, comprises treating CNS metastasis of (Catalogue of Federal Domestic Assistance Director, Office of Federal Advisory extra-CNS origin originating in one or Program Nos. 93.864, Population Research; Committee Policy. more organs such as lung, breast, liver, 93.865, Research for Mothers and Children; [FR Doc. E8–22896 Filed 9–29–08; 8:45 am] colon, and prostate with a histone 93.929, Center for Medical Rehabilitation BILLING CODE 4140–01–P deacetylase (HDAC) inhibitor. The Research; 93.209, Contraception and HDAC inhibitor can be any HDAC Infertility Loan Repayment Program, National Institutes of Health, HHS) inhibitor that is capable of crossing the DEPARTMENT OF HEALTH AND blood-brain barrier (BBB) such as Dated: September 18, 2008. HUMAN SERVICES vorinostat. Jennifer Spaeth, The prospective exclusive license will National Institutes of Health Director, Office of Federal Advisory be royalty-bearing and will comply with Committee Policy. the terms and conditions of 35 U.S.C. [FR Doc. E8–22895 Filed 9–29–08; 8:45 am] Prospective Grant of an Exclusive License: Therapeutics Based on 209 and 37 CFR 404.7. The prospective BILLING CODE 4140–01–P Histone Deacetylase (HDAC) Inhibitors exclusive license may be granted unless for the Prevention and Treatment of within sixty (60) days from the date of Central Nervous System (CNS) this published notice, the NIH receives DEPARTMENT OF HEALTH AND written evidence and argument that HUMAN SERVICES Metastases of Extra-CNS Origin Cancers establish that the grant of the license National Institutes of Health would not be consistent with the AGENCY: National Institutes of Health, requirements of 35 U.S.C. 209 and 37 Eunice Kennedy Shriver National Public Health Service, HHS. CFR 404.7. Institute of Child Health & Human ACTION: Notice. Applications for a license in the field Development; Notice of Closed of use filed in response to this notice SUMMARY: This notice, in accordance Meeting will be treated as objections to the grant with 35 U.S.C. 209(c)(1) and 37 CFR of the contemplated exclusive license. Part 404.7(a)(1)(i), announces that the Pursuant to section 10(d) of the Comments and objections submitted to Department of Health and Human Federal Advisory Committee Act, as this notice will not be made available Services is contemplating the grant of an amended (5 U.S.C. Appendix 2), notice for public inspection and, to the extent exclusive license to practice the is hereby given of the following permitted by law, will not be released inventions embodied in U.S. Provisional meeting. under the Freedom of Information Act, The meeting will be closed to the Application 60/891,856 filed February 5 U.S.C. 552. public in accordance with the 27, 2007 (E–084–2007/0–US–01) and provisions set forth in sections International Application PCT/US2008/ Dated: September 18, 2008. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., 055149 filed February 27, 2008 (E–084– Richard U. Rodriguez, as amended. The grant applications and 2007/0–PCT–02), entitled ‘‘Use of Director, Division of Technology Development the discussions could disclose Histone Deacetylase Inhibitors for the and Transfer, Office of Technology Transfer, confidential trade secrets or commercial Treatment of Central Nervous System National Institutes of Health. property such as patentable material, Metastases,’’ to Waypharm S.A.S. The [FR Doc. E8–22893 Filed 9–29–08; 8:45 am] and personal information concerning patent rights in these inventions have BILLING CODE 4140–01–P

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DEPARTMENT OF HOMELAND Dated: September 24, 2008. SUPPLEMENTARY INFORMATION: Pursuant SECURITY Hugo Teufel III, to the provisions of the Privacy Act of Chief Privacy Officer, Department of 1974, 5 U.S.C. 552a, and as part of its Office of the Secretary Homeland Security. ongoing integration and management [FR Doc. E8–22996 Filed 9–29–08; 8:45 am] efforts, the Department of Homeland Privacy Act of 1974; Retirement of BILLING CODE 4410–10–P Security (DHS) is retiring the system of System of Records records notices Justice/INS–026 Hiring Tracking Systems (HITS) (66 FR 46816 AGENCY: Privacy Office, DHS. DEPARTMENT OF HOMELAND September 7, 2001), Justice/INS–034 ACTION: Notice of the retirement of one SECURITY Human Resources File Manager System Privacy Act system of records notice. Office of the Secretary (67 FR 56585 September 4, 2002), Treasury/CS.009 Acting Customs SUMMARY: In accordance with the Privacy Act of 1974; Retirement of Inspector (66 FR 52984 October 18, Privacy Act of 1974, the Department of Systems of Records 2001), Treasury/CS.083 Employee Homeland Security is giving notice that Relations Case Files (66 FR 52984 it proposes to retire the following AGENCY: Privacy Office, DHS. October 18, 2001), Treasury/CS.105 Privacy Act system of records notice, ACTION: Notice of the retirement of Former Employees (66 FR 52984 Treasury/CS.123 Injury Notice (66 FR twelve Privacy Act system of records October 18, 2001), Treasury/CS.109 52984, October 18, 2001), from its notices. Handicapped Employee File (66 FR inventory of record systems and rely 52984 October 18, 2001), Treasury/ upon the Government-wide system of SUMMARY: In accordance with the CS.162 Organization (Customs) and records notice issued by the Department Privacy Act of 1974, the Department of Automated Position Management of Labor, DOL/GOVT–1 ESA, Office of Homeland Security is giving notice that System (COAPMS) (66 FR 52984 Workers’ Compensation Programs, it proposes to retire the following October 18, 2001), Treasury/CS.163 Federal Employees Compensation Act Privacy Act system of records notices Outside Employment Requests (66 FR Justice/INS–026 Hiring Tracking File (67 FR 49338, July 30, 2002), which 52984 October 18, 2001), Treasury/ Systems (HITS) (66 FR 46816 September is written to cover all Federal workers’ CS.193 Operating Personnel Folder Files 7, 2001), Justice/INS–034 Human compensation programs. (66 FR 52984 October 18, 2001), Resources File Manager System (67 FR Treasury/CS.196 Preclearance Costs (66 DATES: These changes will take effect on 56585 September 4, 2002), Treasury/ FR 52984 October 18, 2001), and October 30, 2008. CS.009 Acting Customs Inspector (66 FR 52984 October 18, 2001), Treasury/ Treasury/CS.208 Restoration of FOR FURTHER INFORMATION CONTACT: CS.083 Employee Relations Case Files Forfeited Annual Leave Cases (66 FR Hugo Teufel III, Chief Privacy Officer, (66 FR 52984 October 18, 2001), 52984 October 18, 2001), that were Department of Homeland Security, Treasury/CS.105 Former Employees (66 issued by Immigration and Washington, DC 20528, by telephone FR 52984 October 18, 2001), Treasury/ Naturalization Services, Department of (703) 235–0780 or facsimile (703) 235– CS.109 Handicapped Employee File (66 Justice and Customs Service, 0442. FR 52984 October 18, 2001), Treasury/ Department of Treasury prior to the SUPPLEMENTARY INFORMATION: Pursuant CS.162 Organization (Customs) and creation of the Department of Homeland to the provisions of the Privacy Act of Automated Position Management Security. 1974, 5 U.S.C. 552a, and as part of its System (COAPMS) (66 FR 52984 DHS will continue to collect and ongoing integration and management October 18, 2001), Treasury/CS.163 maintain records regarding general efforts, the Department of Homeland Outside Employment Requests (66 FR personnel records and will rely upon Security (DHS) is retiring the system of 52984 October 18, 2001), Treasury/ the existing Federal Government-wide CS.193 Operating Personnel Folder Files records notice, Treasury/CS.123 Injury system of records titled OPM/GOVT–1 (66 FR 52984 October 18, 2001), Notice (66 FR 52984, October 18, 2001), General Personnel Records (71 FR 35342 Treasury/CS.196 Preclearance Costs (66 that was issued by Customs Service, June 19, 2006), which is written to cover FR 52984 October 18, 2001), and Department of the Treasury prior to the Treasury/CS.208 Restoration of all general Federal Government creation of the Department of Homeland Forfeited Annual Leave Cases (66 FR personnel records. Security. 52984 October 18, 2001), from its Eliminating these notices will have no DHS will continue to collect and inventory of record systems and rely adverse impacts on individuals, but will maintain records regarding individuals upon the Government-wide system of promote the overall streamlining and who file for workers’ compensation and records notice issued by the Office of management of DHS Privacy Act record will rely upon the existing Federal Personnel Management, OPM/GOVT–1 systems. Government-wide system of records General Personnel Records (71 FR 35342 Dated: September 24, 2008. titled DOL/GOVT–1 ESA, Office of June 19, 2006), which is written to cover Workers’ Compensation Programs, all general Federal Government Hugo Teufel III, Federal Employees Compensation Act personnel records. Chief Privacy Officer, Department of Homeland Security. File (67 FR 49338, July 30, 2002), which DATES: These changes will take effect on is written to cover all Federal workers’ October 30, 2008. [FR Doc. E8–22998 Filed 9–29–08; 8:45 am] compensation programs. BILLING CODE 4410–10–P FOR FURTHER INFORMATION CONTACT: Eliminating this notice will have no Hugo Teufel III, Chief Privacy Officer, adverse impacts on individuals but will Department of Homeland Security, promote the overall streamlining and Washington, DC 20528, by telephone management of DHS Privacy Act record (703) 235–0780 or facsimile (703) 235– systems. 0442.

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DEPARTMENT OF HOMELAND DEPARTMENT OF HOMELAND DEPARTMENT OF HOMELAND SECURITY SECURITY SECURITY Office of the Secretary Office of the Secretary Office of the Secretary Privacy Act of 1974; Retirement of Privacy Act of 1974; Retirement of Privacy Act of 1974; Retirement of System of Records System of Records System of Records

AGENCY: Privacy Office, DHS. AGENCY: Privacy Office, DHS. AGENCY: Privacy Office, DHS. ACTION: Notice of the retirement of one ACTION: Notice of the retirement of two ACTION: Notice of the retirement of one Privacy Act system of records notice. Privacy Act system of records notices. Privacy Act systems of records notice. SUMMARY: In accordance with the SUMMARY: In accordance with the SUMMARY: In accordance with the Privacy Act of 1974, the Department of Privacy Act of 1974, the Department of Privacy Act of 1974, the Department of Homeland Security is giving notice that Homeland Security is giving notice that Homeland Security is giving notice that it proposes to retire the following it proposes to retire the following it proposes to retire the following Privacy Act systems of records notice, Privacy Act system of records notice Privacy Act system of records notice, FEMA/OC–1 Travel and Transportation Treasury/CS.190 Personnel Case File (66 DOE–33 Personnel Medical Records Accounting (55 FR 37182 September 7, FR 52984 October 18, 2001) and System (60 FR 33510 June 28, 1995), 1990), from its inventory of record partially retire sections of USSS.002 from its inventory of record systems and systems and rely upon the Government- Chief Counsel Record System (66 FR rely upon the Government-wide system wide system of records notice issued by 45362 August 28, 2001) relating to equal of records notice issued by the Office of the General Services Administration, employment opportunities from its Personnel Management, OPM/GOV–10 GSA/GOVT–4 (Contracted Travel inventory of record systems and rely Employee Medical File System Records Service Program (50 FR 20294 April 15, upon the Government-wide system of (71 FR 35360 June 19, 2006), which is 1985), which is written to cover all records notice issued by the Equal written to cover all Federal employee Federal travel service programs. Employment Opportunity Commission, medical file records. DATES: These changes will take effect on EEOC/GOVT–1 (67 FR 49338 July 30, DATES: These changes will take effect on October 30, 2008. 2002), which is written to cover all Federal equal employment opportunity October 30, 2008. FOR FURTHER INFORMATION CONTACT: programs. FOR FURTHER INFORMATION CONTACT: Hugo Teufel III, Chief Privacy Officer, Department of Homeland Security, DATES: These changes will take effect on Hugo Teufel III, Chief Privacy Officer, October 30, 2008. Department of Homeland Security, Washington, DC 20528, by telephone FOR FURTHER INFORMATION CONTACT: Washington, DC 20528, by telephone (703) 235–0780 or facsimile (703) 235– (703) 235–0780 or facsimile (703) 235– 0442. Hugo Teufel III, Chief Privacy Officer, Department of Homeland Security, 0442. SUPPLEMENTARY INFORMATION: Pursuant to the provisions of the Privacy Act of Washington, DC 20528, by telephone SUPPLEMENTARY INFORMATION: Pursuant 1974, 5 U.S.C. 552a, and as part of its (703) 235–0780 or facsimile (703) 235– to the provisions of the Privacy Act of 0442. 1974, 5 U.S.C. 552a, and as part of its ongoing integration and management efforts, the Department of Homeland SUPPLEMENTARY INFORMATION: Pursuant ongoing integration and management to the provisions of the Privacy Act of efforts, the Department of Homeland Security (DHS) is retiring the system of records notice, FEMA/OC–1 Travel and 1974, 5 U.S.C. 552a, and as part of its Security (DHS) is retiring the system of ongoing integration and management records notice, DOE–33 Personnel Transportation Accounting (55 FR 37182 September 7, 1990), that was efforts, the Department of Homeland Medical Records System (60 FR 33510 Security (DHS) is retiring the system of June 28, 1995), that had been issued by issued by the Federal Emergency Management Agency (FEMA) prior to records notice, Treasury/CS.190 the Department of Energy prior to the Personnel Case File (66 FR 52984 creation of the Department of Homeland the creation of DHS. DHS will continue to collect and October 18, 2001), and partially retire Security. maintain records regarding individuals USSS.002 Chief Counsel Record System DHS will continue to collect and who use the Department’s travel and (66 FR 45362 August 28, 2001), that maintain records regarding Federal transportation resources and will rely were issued by the Department of employees medical files and will rely upon the existing Federal Government- Treasury prior to the creation of the upon the existing Federal Government- wide system of records titled GSA/ Department of Homeland Security. wide system of records titled OPM/ GOVT–4 (Contracted Travel Service DHS will continue to collect and GOV-10 Employee Medical File System Program (50 FR 20294 April 15, 1985), maintain records regarding employees Records (71 FR 35360 June 19, 2006), which is written to cover all Federal who file a grievance or complaint and/ which is written to cover all Federal travel service programs. or whom disciplinary action has been employee medical file records. Eliminating this notice will have no proposed or taken under the equal Eliminating this system notice will adverse impacts on individuals, but will opportunity program and will rely upon have no adverse impacts on individuals, promote the overall streamlining and the existing Federal Government-wide but will promote the overall management of DHS Privacy Act record system of records titled EEOC/GOVT–1 streamlining and management of DHS systems. Equal Employment Opportunity Privacy Act record systems. Commission (67 FR 49338 July 30, Dated: September 24, 2008. 2002), which is written to cover all Hugo Teufel III, Hugo Teufel III, Federal equal employment opportunity Chief Privacy Officer, Department of Chief Privacy Officer, Department of programs. Homeland Security. Homeland Security. Eliminating this notice will have no [FR Doc. E8–22999 Filed 9–29–08; 8:45 am] [FR Doc. E8–23000 Filed 9–29–08; 8:45 am] adverse impacts on individuals, but will BILLING CODE 4410–10–P BILLING CODE 4410–10–P promote the overall streamlining and

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management of DHS Privacy Act record the existing Federal Government-wide Records (71 FR 26767 May 8, 2006). The systems. system of records titled EEOC/GOVT–1 routine use is to providing training Dated: September 24, 2008. Equal Employment Opportunity records to employers to the extent Hugo Teufel III, Commission (67 FR 49338 July 30, necessary to obtain information 2002), which is written to cover all pertinent to the individual’s fitness and Chief Privacy Officer, Department of Homeland Security. Federal equal employment opportunity qualifications for training and to [FR Doc. E8–23001 Filed 9–29–08; 8:45 am] programs. provide training status. Eliminating this notice will have no BILLING CODE 4410–10–P DATES: These changes will take effect on adverse impacts on individuals, but will October 30, 2008. promote the overall streamlining and FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF HOMELAND management of DHS Privacy Act record systems. Hugo Teufel III, Chief Privacy Officer, SECURITY Department of Homeland Security, Dated: September 24, 2008. Washington, DC 20528, by telephone Office of the Secretary Hugo Teufel III, (703) 235–0780 or facsimile (703) 235– Privacy Act of 1974; Retirement of Chief Privacy Officer, Department of 0442. Homeland Security. System of Records SUPPLEMENTARY INFORMATION: Pursuant [FR Doc. E8–23002 Filed 9–29–08; 8:45 am] to the provisions of the Privacy Act of AGENCY: Privacy Office, DHS. BILLING CODE 4410–10–P 1974, 5 U.S.C. 552a, and as part of its ACTION: Notice of the retirement of two ongoing integration and management Privacy Act system of records notices. DEPARTMENT OF HOMELAND efforts, the Department of Homeland SUMMARY: In accordance with the SECURITY Security (DHS) is consolidating the Privacy Act of 1974, the Department of system of records notice, Homeland Security is giving notice that Office of the Secretary Treasury/CS.238 Training and Career it proposes to retire the following Individual Development Plans (66 FR Privacy Act system of records notice Privacy Act of 1974; Consolidation of 52984 October 18, 2001), that has been Treasury/CS.190 Personnel Case File (66 Department of Homeland Security issued by Customs Service, Department FR 52984 October 18, 2001) and Training Systems of Records of Treasury prior to the creation of the partially retire sections of USSS.002 Department of Homeland Security. AGENCY: Privacy Office, DHS. Chief Counsel Record System (66 FR DHS will continue to collect and ACTION: 45362 August 28, 2001) relating to equal Notice to consolidate seven maintain records regarding individuals employment opportunities from its Privacy Act system of records notices; who attend DHS-sponsored training inventory of record systems and rely Notice of an additional routine use. programs and will rely upon the upon the Government-wide system of SUMMARY: In accordance with the existing DHS-wide system of records records notice issued by the Equal Privacy Act of 1974, the Department of notice titled DHS/ALL–003 Department Employment Opportunity Commission, Homeland Security is giving notice that of Homeland Security General Training EEOC/GOVT–1 (67 FR 49338 July 30, it proposes to consolidate the following Records (71 FR 26767 May 8, 2006). 2002), which is written to cover all Privacy Act system of records notices, For similar reasons, DHS is Federal equal employment opportunity Treasury/CS.238 Training and Career reclassifying six additional legacy programs. Individual Development Plans (66 FR systems of records notices. The second DATES: These changes will take effect on 52984 October 18, 2001), system, Treasury/CS.239 Training October 30, 2008. Treasury/CS.239 Training Records (66 Records (66 FR 52984 October 18, 2001), FOR FURTHER INFORMATION CONTACT: FR 52984 October 18, 2001), is also maintained by Customs Service, Hugo Teufel III, Chief Privacy Officer, FEMA/NETC–1 Student Application Department of Treasury and records Department of Homeland Security, and Registration Records (55 FR 37182 Customs employees who have Washington, DC 20528, by telephone September 7, 1990), FEMA/NETC–2 completed training. (703) 235–0780 or facsimile (703) 235– Emergency Management Training The third system, FEMA/NETC–1 0442. Program Home Study Courses (55 FR Student Application and Registration SUPPLEMENTARY INFORMATION: Pursuant 37182 September 7, 1990), Records (55 FR 37182 September 7, to the provisions of the Privacy Act of FEMA/NETC–4 Associate Faculty 1990), is maintained by the Federal 1974, 5 U.S.C. 552a, and as part of its Tracking System (55 FR 37182 Emergency Management Agency ongoing integration and management September 7, 1990), Treasury/FLETC. (FEMA). This system records efforts, the Department of Homeland 002 FLETC Trainee Records (66 FR individuals who apply for and complete Security (DHS) is retiring the system of 43955 August 21, 2001), and USSS.009 resident and field emergency records notice, Treasury/CS.190 Training Information System (66 FR management training conducted under Personnel Case File (66 FR 52984 45362 August 28, 2001), into the the auspices of the National Emergency October 18, 2001), and partially retire existing Department of Homeland Training Center. This system also USSS.002 Chief Counsel Record System Security-wide system of records notice records individuals who apply for and (66 FR 45362 August 28, 2001), that titled DHS/ALL–003 Department of complete courses at the National Fire were issued by the Department of Homeland Security General Training Academy and Emergency Management Treasury prior to the creation of the Records (71 FR 26767 May 8, 2006). Institute. Department of Homeland Security. Additionally, the Department of The fourth system, FEMA/NETC–2 DHS will continue to collect and Homeland Security is giving notice that Emergency Management Training maintain records regarding employees it proposes to add a routine use to the Program Home Study Courses (55 FR who file a grievance or complaint and/ existing Department of Homeland 37182 September 7, 1990), is or whom disciplinary action has been Security-wide system of records notice maintained by FEMA and records proposed or taken under the equal titled DHS/ALL–003 Department of individuals who are enrolled in and/or opportunity program and will rely upon Homeland Security General Training have completed home study courses

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offered by the Emergency Management Homeland Security is giving notice that Privacy Act system of records notices, Training Program. it proposes to consolidate the following Treasury/CS.001 Acceptable Level of The fifth system, FEMA/NETC–4 Privacy Act system of records notices, Competence, Negative Determination Associate Faculty Tracking System (55 FEMA/IG–1 General Investigative Files (66 FR 52984 October 18, 2001) and FR 37182 September 7, 1990), is (55 FR 37182 September 7, 1990), into Treasury/CS.286 Electronic Job maintained by FEMA and records the existing Department of Homeland Application Processing System (66 FR individuals who provide instruction in Security-wide system of records notice 52984 October 18, 2001), from its the delivery of Office of Training titled DHS/OIG–002 Office of Inspector inventory of records systems and rely resident and field courses. General (OIG) Investigations Data upon the Government-wide system of The sixth system, Management System (IDMS) (70 FR records notice issued by the Office of Treasury/FLETC.002 FLETC Trainee 58448 October 6, 2005). Personnel Management, OPM/GOVT–5 Records (66 FR 43955 August 21, 2001), DATES: These changes will take effect on Recruiting, Examining, and Placement is maintained by the Federal Law October 30, 2008. Enforcement Training Center (FLETC) Records (71 FR 35351 June 19, 2006) FOR FURTHER INFORMATION CONTACT: and records individuals who attend a which is written to cover all Federal Hugo Teufel III, Chief Privacy Officer, FLETC-sponsored training program, recruiting, examining, and placement Department of Homeland Security, symposium, or similar event. activities. Washington, DC 20528, by telephone The seventh system, USSS.009 (703) 235–0780 or facsimile (703) 235– DATES: These changes will take effect on Training Information System (66 FR 0442. October 30, 2008. 45362 August 28, 2001), is maintained by the United States Secret Service and SUPPLEMENTARY INFORMATION: Pursuant FOR FURTHER INFORMATION CONTACT: records the training records of current to the provisions of the Privacy Act of Hugo Teufel III, Chief Privacy Officer, and former Secret Service employees 1974, 5 U.S.C. 552a, and as part of its Department of Homeland Security, and officers of the Secret Service ongoing integration and management Washington, DC 20528, by telephone Uniformed Division. efforts, the Department of Homeland (703) 235–0780 or facsimile (703) 235– Additionally, the Department of Security (DHS) is consolidating the 0442. Homeland Security is giving notice that system of records notice, FEMA/IG–1 it proposes to add a routine use to the General Investigative Files (55 FR 37182 SUPPLEMENTARY INFORMATION: Pursuant existing Department of Homeland September 7, 1990), that has been issued to the provisions of the Privacy Act of Security-wide system of records notice by the Federal Emergency Management 1974, 5 U.S.C. 552a, and as part of its titled DHS/ALL–003 Department of Agency prior to the creation of the ongoing integration and management Homeland Security General Training Department of Homeland Security. efforts, the Department of Homeland Records (71 FR 26767 May 8, 2006). The DHS will continue to collect and Security (DHS) is retiring the systems of routine use is to providing training maintain records regarding records notices Treasury/CS. 001 records to employers to the extent investigations and will rely upon the Acceptable Level of Competence, necessary to obtain information existing DHS-wide system of records Negative Determination (66 FR 52984 pertinent to the individual’s fitness and notice titled Office of Inspector General October 18, 2001) and Treasury/CS.286 qualifications for training and to (OIG) Investigations Data Management Electronic Job Application Processing provide training status. System (IDMS) (70 FR 58448 October 6, System (66 FR 52984 October 18, 2001), Eliminating these notices and adding 2005). that were issued by Customs Service, this routine use will have no adverse Eliminating this notice will have no Department of the Treasury prior to the adverse impacts on individuals, but will impacts on individuals, but will creation of the Department of Homeland promote the overall streamlining and promote the overall streamlining and Security. management of DHS Privacy Act record management of DHS Privacy Act record systems. systems. DHS will continue to collect and maintain records regarding individuals Dated: September 24, 2008. Dated: September 24, 2008. involved in recruitment, examining and Hugo Teufel III, Hugo Teufel III, placement activities and will rely upon Chief Privacy Officer, Department of Chief Privacy Officer, Department of the existing Federal Government-wide Homeland Security. Homeland Security. system of records titled OPM/GOVT–5 [FR Doc. E8–23003 Filed 9–29–08; 8:45 am] [FR Doc. E8–23004 Filed 9–29–08; 8:45 am] Recruiting, Examining, and Placement BILLING CODE 4410–10–P BILLING CODE 4410–10–P Records, (71 FR 35351 June 19, 2006), which is written to cover all recruiting, DEPARTMENT OF HOMELAND DEPARTMENT OF HOMELAND examining, and placement activities. SECURITY SECURITY Eliminating these notices will have no adverse impacts on individuals, but will Office of the Secretary Office of the Secretary promote the overall streamlining and Privacy Act of 1974; Consolidation of Privacy Act of 1974; Retirement of management of DHS Privacy Act record Department of Homeland Security Systems of Records systems. Office of the Inspector General Dated: September 24, 2008. AGENCY: Privacy Office, DHS. Systems of Records Hugo Teufel III, ACTION: Notice of the retirement of two AGENCY: Privacy Office, DHS. Privacy Act system of records notices. Chief Privacy Officer, Department of Homeland Security. ACTION: Notice to consolidate one Privacy Act system of records notice. SUMMARY: In accordance with the [FR Doc. E8–23005 Filed 9–29–08; 8:45 am] Privacy Act of 1974, the Department of BILLING CODE 4410–10–P SUMMARY: In accordance with the Homeland Security is giving notice that Privacy Act of 1974, the Department of it proposes to retire the following

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DEPARTMENT OF HOMELAND management of DHS Privacy Act record Response to Comments SECURITY systems. On August 15, 2008, the Coast Guard Dated: September 24, 2008. Office of the Secretary initiated a 30-day public comment Hugo Teufel III, period with publication of a Notice of Privacy Act of 1974; Retirement of Chief Privacy Officer, Department of Availability of the Proposed System of Records Homeland Security. Modernization of the Coast Guard Draft [FR Doc. E8–23006 Filed 9–29–08; 8:45 am] PEA in the Federal Register (73 FR AGENCY: Privacy Office, DHS. BILLING CODE 4410–10–P 47959). The Coast Guard received 23 ACTION: Notice of the retirement of one public comments during this period. Privacy Act system of records notice. Summary of Comments and the USCG DEPARTMENT OF HOMELAND SUMMARY: In accordance with the Responses SECURITY Privacy Act of 1974, the Department of Many of the 23 separate comments Homeland Security is giving notice that Coast Guard either acknowledged receipt or noted it proposes to retire the following approval of the Coast Guard’s Privacy Act system of records notice, [Docket No. USCG–2008–0991] modernization proposal. The remaining Treasury/CS.054 Confidential comments fell into the following four Statements of Employment and Proposed Modernization of the Coast groups. Financial Interests (66 FR 52984 Guard; Final Programmatic Several comments focused on the October 18, 2001), from its inventory of Environmental Assessment managerial philosophy and motivation record systems and rely upon the of the Coast Guard in proposing this Government-wide system of records AGENCY: Coast Guard, DHS. modernization. While these comments notice issued by the Office of ACTION: Notice of Availability of Final are useful to decision makers, they are Government Ethics, OGE/GOVT–2 Programmatic Environmental not relevant to the environmental Executive Branch Confidential Financial Assessment and Finding of No impact analyses associated with the Disclosure Reports (68 FR 24722 May 8, Significant Impact. proposed modernization and, therefore, 2003), which is written to cover all will not be addressed in the Final PEA. confidential statements of employment SUMMARY: The Coast Guard announces A second group of comments focused and financial interests record systems the availability of the Final on decisions that are yet to be made, submitted by Federal Government Programmatic Environmental such as exact locations of possible new employees. Assessment (PEA) for Coast Guard facilities or precise organizations that modernization. Based on the PEA’s DATES: These changes will take effect on might or might not be moved. While analysis and the mitigation plan October 30, 2008. these comments are also useful to committed to in the PEA, the Coast FOR FURTHER INFORMATION CONTACT: decision makers, they are not yet ripe Guard determined that an Hugo Teufel III, Chief Privacy Officer, for further analysis and will not be environmental impact statement is not Department of Homeland Security, considered further in the Final PEA. As required, and a Finding of No Washington, DC 20528, by telephone stated in the Draft PEA, NEPA analysis Significant Impact (FONSI) has been (703) 235–0780 or facsimile (703) 235– and documentation may be prepared for issued for the proposed action. 0442. future individual actions and their site- Availability: Electronic copies of the SUPPLEMENTARY INFORMATION: specific impacts if such actions are not Pursuant Final PEA and FONSI, as well as adequately covered by this to the provisions of the Privacy Act of comments received on the Draft PEA programmatic NEPA document. 1974, 5 U.S.C. 552a, and as part of its and FONSI, are available from the The third group of comments ongoing integration and management Federal Docket Management Facility at advocated moving large segments of the efforts, the Department of Homeland Internet Web site address: http:// Coast Guard to various new locations Security (DHS) is retiring the system of www.regulations.gov using the docket around the nation. These alternatives do records notice, Treasury/CS.054 number USCG–2008–0991. Confidential Statements of Employment not meet the purpose and need and Financial Interests (66 FR 52984 FOR FURTHER INFORMATION CONTACT: If described in the PEA to minimize October 18, 2001), that was issued by you have questions on this notice, disruption to the workforce, minimize the Customs Service, Department of the please contact Ms. Kebby Kelley, USCG, costs of modernization (such as, by Treasury prior to the creation of the telephone (202) 475–5690, e-mail: utilizing existing facilities), and Department of Homeland Security. [email protected], or Mr. Frank minimize disruption to mission DHS will continue to collect and Esposito, USCG, telephone (202) 372– execution. These proposals are, maintain records regarding individuals 3746, e-mail: therefore, not evaluated in detail in the who submit confidential statements of [email protected]. If you have Final PEA. employment and financial interests and questions on viewing the docket, please Finally, a fourth group of comments will rely upon the existing Federal call Ms. Renee Wright, Program was not addressed because it raised Government-wide system of records Manager, Docket Operations, telephone matters, such as the Deepwater notice titled OGE/GOVT–2 Executive (202) 366–9826. Replacement contract, that are outside Branch Confidential Financial SUPPLEMENTARY INFORMATION: In the scope of the Coast Guard Disclosure Reports (68 FR 24722 May 8, accordance with the National modernization decision. 2003), which is written to cover Federal Environmental Policy Act of 1969, as Background and Purpose employees who submit confidential implemented by the Council on statements of employment and financial Environmental Quality regulations (40 The Coast Guard intends to interests. CFR parts 1500–1508), the Coast Guard modernize its command structure, Eliminating this notice will have no prepared a Final PEA and FONSI for the support systems, and business practices adverse impacts on individuals, but will Proposed Modernization of the Coast to position itself for sustainable and promote the overall streamlining and Guard. effective mission execution into the

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twenty-first century. The Coast Guard DEPARTMENT OF HOMELAND limited to 75 percent of the total eligible prepared a PEA that identified and SECURITY costs. examined the reasonable alternatives Further, you are authorized to make Federal Emergency Management changes to this declaration to the extent and assessed their potential allowable under the Stafford Act. environmental impacts. The PEA Agency The Federal Emergency Management identified potential direct, indirect, and [FEMA–1793–DR] cumulative impacts associated with Agency (FEMA) hereby gives notice that proposed modernization, including Arkansas; Major Disaster and Related pursuant to the authority vested in the Administrator, under Executive Order Coast Guard mission-related impacts Determinations 12148, as amended, Kenneth M. Riley of and site-specific impacts. AGENCY: Federal Emergency FEMA is appointed to act as the Federal The Coast Guard developed two Management Agency, DHS. Coordinating Officer for this declared action alternatives to achieve ACTION: Notice. disaster. modernization, a full modernization The following areas of the State of alternative and a partial modernization SUMMARY: This is a notice of the Arkansas have been designated as alternative. These two alternatives Presidential declaration of a major adversely affected by this declared represented the upper and lower levels disaster for the State of Arkansas major disaster: of change required to achieve the (FEMA–1793–DR), dated September 18, Ashley, Bradley, Calhoun, Chicot, Clark, purpose and need of the modernization 2008, and related determinations. Cleveland, Conway, Dallas, Drew, Garland, and, therefore, captured the range of DATES: Effective Date: September 18, Grant, Hot Spring, Lincoln, Montgomery, social, economic, and environmental 2008. Perry, Prairie, Saline, and Van Buren impacts that would occur while Counties for Public Assistance. Direct FOR FURTHER INFORMATION CONTACT: Federal assistance is authorized. implementing modernization initiatives. Peggy Miller, Disaster Assistance All counties within the State of Arkansas The full modernization alternative Directorate, Federal Emergency are eligible to apply for assistance under the emphasizes co-location of mission Management Agency, 500 C Street, SW., Hazard Mitigation Grant Program. support and operations resources and Washington, DC 20472, (202) 646–3886. (The following Catalog of Federal Domestic functions and included potential Assistance Numbers (CFDA) are to be used SUPPLEMENTARY INFORMATION: Notice is construction at the Coast Guard Yard, for reporting and drawing funds: 97.030, hereby given that, in a letter dated Community Disaster Loans; 97.031, Cora Curtis Bay, Maryland. The partial September 18, 2008, the President modernization alternative would focus Brown Fund; 97.032, Crisis Counseling; declared a major disaster under the 97.033, Disaster Legal Services; 97.034, on operating from existing locations authority of the Robert T. Stafford Disaster Unemployment Assistance (DUA); rather than co-locating functional Disaster Relief and Emergency 97.046, Fire Management Assistance Grant; resources in a single location and Assistance Act, 42 U.S.C. 5121–5207 97.048, Disaster Housing Assistance to includes no new construction. The (the Stafford Act), as follows: Individuals and Households In Presidentially partial modernization alternative would Declared Disaster Areas; 97.049, I have determined that the damage in Presidentially Declared Disaster Assistance— minimally achieve the purpose and certain areas of the State of Arkansas need for modernization, while the full Disaster Housing Operations for Individuals resulting from severe storms and flooding and Households; 97.050, Presidentially modernization alternative would allow during the period of September 2–8, 2008, Declared Disaster Assistance to Individuals the Coast Guard to reach the fully and continuing, is of sufficient severity and and Households—Other Needs; 97.036, envisioned functionality of magnitude to warrant a major disaster Disaster Grants—Public Assistance modernization. The Coast Guard prefers declaration under the Robert T. Stafford (Presidentially Declared Disasters); 97.039, the full modernization alternative. Disaster Relief and Emergency Assistance Hazard Mitigation Grant. Act, 42 U.S.C. 5121–5207 (the Stafford Act). Either modernization alternative would Therefore, I declare that such a major disaster R. David Paulison, be implemented over at least 5 years. exists in the State of Arkansas. Administrator, Federal Emergency The Coast Guard has determined that In order to provide Federal assistance, you Management Agency. the mitigation committed to in the Final are hereby authorized to allocate from funds [FR Doc. E8–22950 Filed 9–29–08; 8:45 am] Coast Guard-prepared PEA will reduce available for these purposes such amounts as you find necessary for Federal disaster BILLING CODE 9110–10–P all potentially significant environmental assistance and administrative expenses. impacts to a level of insignificance. You are authorized to provide Public Thus, the Final PEA was determined to Assistance in the designated areas, Hazard DEPARTMENT OF HOMELAND adequately and accurately discuss the Mitigation throughout the State, and any SECURITY environmental issues and impacts of the other forms of assistance under the Stafford Federal Emergency Management proposed action and provides sufficient Act that you deem appropriate. Direct Agency evidence and analysis for determining Federal assistance is authorized. Consistent with the requirement that Federal assistance [FEMA–1786–DR] that an environmental impact statement be supplemental, any Federal funds provided is not required. A Finding of No under the Stafford Act for Hazard Mitigation Louisiana; Amendment No. 7 to Notice Significant Impact was, therefore, issued will be limited to 75 percent of the total for the full modernization alternative eligible costs. Federal funds provided under of a Major Disaster Declaration which is the Coast Guard’s preferred the Stafford Act for Public Assistance also AGENCY: Federal Emergency alternative. will be limited to 75 percent of the total Management Agency, DHS. eligible costs, except for any particular Dated: September 24, 2008. projects that are eligible for a higher Federal ACTION: Notice. cost-sharing percentage under the FEMA Clifford I. Pearson, SUMMARY: This notice amends the notice Vice Admiral, U.S. Coast Guard, Chief of Public Assistance Pilot Program instituted pursuant to 6 U.S.C. 777. If Other Needs of a major disaster declaration for the Staff. Assistance under Section 408 of the Stafford State of Louisiana (FEMA–1786–DR), [FR Doc. E8–22934 Filed 9–29–08; 8:45 am] Act is later requested and warranted, Federal dated September 2, 2008, and related BILLING CODE 4910–15–P funding under that program also will be determinations.

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DATES: Effective Date: September 18, SUMMARY: This notice amends the notice SUMMARY: This notice amends the notice 2008. of a major disaster declaration for the of a major disaster declaration for the FOR FURTHER INFORMATION CONTACT: State of Louisiana (FEMA–1792–DR), State of New Hampshire (FEMA–1787– Peggy Miller, Disaster Assistance dated September 13, 2008, and related DR), dated September 5, 2008, and Directorate, Federal Emergency determinations. related determinations. Management Agency, 500 C Street, SW., DATES: Effective Date: September 18, DATES: Effective Date: September 18, Washington, DC 20472, (202) 646–3886. 2008. 2008. SUPPLEMENTARY INFORMATION: The notice FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION CONTACT: of a major disaster declaration for the Peggy Miller, Disaster Assistance Peggy Miller, Disaster Assistance State of Louisiana is hereby amended to Directorate, Federal Emergency Directorate, Federal Emergency include the following areas among those Management Agency, 500 C Street, SW., Management Agency, 500 C Street, SW., areas determined to have been adversely Washington, DC 20472, (202) 646–3886. Washington, DC 20472, (202) 646–3886. affected by the catastrophe declared a SUPPLEMENTARY INFORMATION: The notice SUPPLEMENTARY INFORMATION: The notice major disaster by the President in his of a major disaster declaration for the of a major disaster declaration for the declaration of September 2, 2008. State of Louisiana is hereby amended to State of New Hampshire is hereby Allen, Avoyelles, Beauregard, Cameron, include the following areas among those amended to include the following area East Feliciana, Evangeline, Jefferson Davis, areas determined to have been adversely among those areas determined to have Lafayette, Orleans, Rapides, Sabine, St. affected by the catastrophe declared a been adversely affected by the Charles, St. John the Baptist, St. Martin, St. major disaster by the President in his catastrophe declared a major disaster by Mary, Terrebonne, and Vermilion Parishes declaration of September 13, 2008. for Public Assistance (already designated for the President in his declaration of New Individual Assistance and debris removal Acadia, Beauregard, Calcasieu, Cameron, Hampshire. and emergency protective measures Iberia, Jefferson, Jefferson Davis, Lafourche, Carroll County for Public Assistance. [Categories A and B], including direct Plaquemines, Sabine, St. Mary, Terrebonne, Federal assistance, under the Public Vermilion, and Vernon Parishes for The following Catalog of Federal Domestic Assistance program). emergency protective measures (Category B), Assistance Numbers (CFDA) are to be used Calcasieu, Franklin and St. Tammany including direct Federal assistance, under the for reporting and drawing funds: 97.030, Parishes for Public Assistance (already Public Assistance program (already Community Disaster Loans; 97.031, Cora designated for Individual Assistance and designated for Individual Assistance and Brown Fund; 97.032, Crisis Counseling; emergency protective measures [Category B], debris removal [Category A], including direct 97.033, Disaster Legal Services; 97.034, including direct Federal assistance, under the Federal assistance, under the Public Disaster Unemployment Assistance (DUA); Public Assistance program). Assistance program) 97.046, Fire Management Assistance Grant; The following Catalog of Federal Domestic The following Catalog of Federal Domestic 97.048, Disaster Housing Assistance to Assistance Numbers (CFDA) are to be used Assistance Numbers (CFDA) are to be used Individuals and Households In Presidentially for reporting and drawing funds: 97.030, for reporting and drawing funds: 97.030, Declared Disaster Areas; 97.049, Community Disaster Loans; 97.031, Cora Community Disaster Loans; 97.031, Cora Presidentially Declared Disaster Assistance— Brown Fund; 97.032, Crisis Counseling; Brown Fund; 97.032, Crisis Counseling; Disaster Housing Operations for Individuals 97.033, Disaster Legal Services; 97.034, 97.033, Disaster Legal Services; 97.034, and Households; 97.050 Presidentially Disaster Unemployment Assistance (DUA); Disaster Unemployment Assistance (DUA); Declared Disaster Assistance to Individuals 97.046, Fire Management Assistance Grant; 97.046, Fire Management Assistance Grant; and Households—Other Needs; 97.036; 97.048, Disaster Housing Assistance to 97.048, Disaster Housing Assistance to Disaster Grants—Public Assistance Individuals and Households In Presidentially Individuals and Households In Presidentially (Presidentially Declared Disasters); 97.039, Declared Disaster Areas; 97.049, Declared Disaster Areas; 97.049, Hazard Mitigation Grant. Presidentially Declared Disaster Assistance— Presidentially Declared Disaster Assistance— R. David Paulison, Disaster Housing Operations for Individuals Disaster Housing Operations for Individuals and Households; 97.050 Presidentially and Households; 97.050, Presidentially Administrator, Federal Emergency Declared Disaster Assistance to Individuals Declared Disaster Assistance to Individuals Management Agency. and Households—Other Needs; 97.036, and Households—Other Needs; 97.036, [FR Doc. E8–22947 Filed 9–29–08; 8:45 am] Disaster Grants—Public Assistance Disaster Grants—Public Assistance BILLING CODE 9110–10–P (Presidentially Declared Disasters); 97.039, (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant. Hazard Mitigation Grant R. David Paulison, R. David Paulison, DEPARTMENT OF HOMELAND Administrator, Federal Emergency Administrator, Federal Emergency SECURITY Management Agency. Management Agency. Federal Law Enforcement Training [FR Doc. E8–22948 Filed 9–29–08; 8:45 am] [FR Doc. E8–22949 Filed 9–29–08; 8:45 am] Center BILLING CODE 9110–10–P BILLING CODE 9110–10–P

[Docket No. FLETC–2008–0003] DEPARTMENT OF HOMELAND DEPARTMENT OF HOMELAND SECURITY SECURITY State and Local Training Advisory Committee Federal Emergency Management Federal Emergency Management AGENCY: Federal Law Enforcement Agency Agency Training Center (FLETC), DHS. [FEMA–1792–DR] [FEMA–1787–DR] ACTION: Committee Management; Notice of Federal Advisory Committee Meeting. Louisiana; Amendment No. 2 to Notice New Hampshire; Amendment No. 1 to of a Major Disaster Declaration Notice of a Major Disaster Declaration SUMMARY: The State and Local Training AGENCY: Federal Emergency AGENCY: Federal Emergency Advisory Committee (SALTAC) will Management Agency, DHS. Management Agency, DHS. meet on October 16, 2008, on St. Simons Island, GA. The meeting will be open to ACTION: Notice. ACTION: Notice. the public.

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DATE: The State and Local Training Draft Agenda your information no later than Advisory Committee will meet The draft agenda for this meeting December 1, 2008. However, we will Thursday, October 16, 2008, from 8 a.m. includes briefings to update committee continue to accept new information to 4 p.m. Please note that the meeting members on OSL and FLETC training about any listed species at any time. may close early if the committee has initiatives and to provide feedback on ADDRESSES: For instructions on how to completed its business. committee recommendations. submit information and review the ADDRESSES: The meeting will be held at Committee members will be asked to information that we receive on these the Epworth by the Sea, 100 Arthur J. provide recommendations on populations, see ‘‘Public Solicitation of Moore Drive, St. Simons Island, GA intelligence led policing, rural training New Information.’’ 31522. Send written material, needs, and validation of training FOR FURTHER INFORMATION CONTACT: comments, and/or requests to make an programs. Please contact the appropriate person oral presentation to the contact person under ‘‘Public Solicitation of New Procedural listed below by October 6th. Requests to Information.’’ Individuals who are have a copy of your material distributed This meeting is open to the public. hearing impaired or speech impaired to each member of the committee prior Please note that the meeting may close may call the Federal Relay Service at to the meeting should reach the contact early if all business is finished. 800–877–8337 for TTY (telephone person at the address below by October Visitors must pre-register attendance typewriter or teletypewriter) assistance. 6th. Comments must be identified by to ensure adequate seating. Please SUPPLEMENTARY INFORMATION: We FLETC–2008–0003 and may be provide your name and telephone initiate 5-year reviews of the Atlantic submitted by one of the following number by close of business on October Coast, Great Lakes, and Northern Great methods: 6, 2008, to Reba Fischer (contact Plains populations of the piping plover • Federal eRulemaking Portal: http:// information above). (Charadrius melodus), under the Act. In www.regulations.gov. Follow the Information on Services for our December 11, 1985, final rule listing instructions for submitting comments. Individuals with Disabilities: For the piping plover across its range, we • E-mail: [email protected]. information on facilities or services for determined the Great Lakes breeding Include docket number in the subject individuals with disabilities or to population to be endangered (but line of the message. request special assistance at the threatened when occurring outside of • Fax: (912) 267–3531. (Not a toll-free meeting, contact Reba Fischer as soon as the Great Lakes watershed—See Table 1) number.) possible. and the Atlantic Coast and Great Plains • Mail: Reba Fischer, Designated Dated: September 11, 2008. populations to be threatened (50 FR Federal Officer (DFO), Federal Law Seymour A. Jones, 50726). We then approved recovery Enforcement Training Center, Deputy Assistant Director, Office of State and plans for the Atlantic Coast (USFWS Department of Homeland Security, 1131 Local Law Enforcement Training. 1988a, 1996), Great Lakes (USFWS Chapel Crossing Road, Townhouse 396, [FR Doc. E8–22997 Filed 9–29–08; 8:45 am] 1988b, 2003), and Northern Great Plains Glynco, GA 31524. BILLING CODE 4810–32–P (USFWS 1988b) populations. The three Instructions: All submissions received populations share wintering habitats must include the words ‘‘Department of along the Atlantic and Gulf Coasts, from Homeland Security’’ and the docket DEPARTMENT OF THE INTERIOR North Carolina to Mexico and into the number for this action. Comments Caribbean Islands. received will be posted without Fish and Wildlife Service We request any new information on alteration at www.regulations.gov, these populations that may have a [FWS–R3–ES–2008–N0235; 30120–1113– bearing on their classification as including any personal information 0000 C4; 50120–1113–0000 C4] provided. endangered or threatened. Docket: For access to the docket to Endangered and Threatened Wildlife Based on the results of these 5-year read background documents or and Plants; 5-Year Review reviews, we will make findings on comments received by the State and whether these populations are properly Local Training Advisory Committee, go AGENCY: Fish and Wildlife Service, classified under the Act. Interior. to www.regulations.gov. Why Do We Conduct a 5-Year Review? ACTION: FOR FURTHER INFORMATION CONTACT: Notice of initiation of review; Under the Act, we maintain the List Reba Fischer, Designated Federal request for information on the piping plover (Charadrius melodus). of Endangered and Threatened Wildlife Officer, Federal Law Enforcement and Plant Species (List) at 50 CFR 17.11 Training Center, Department of SUMMARY: We, the U.S. Fish and and 17.12. We amend the List by Homeland Security, 1131 Chapel Wildlife Service (Service), initiate 5- publishing final rules in the Federal Crossing Road, Townhouse 396, Glynco, year reviews of the piping plover Register. Section 4(c)(2)(A) of the Act GA 31524; (912) 267–2343; (Atlantic Coast, Great Lakes, and requires that we conduct a review of [email protected]. Northern Great Plains populations) listed species at least once every 5 years. SUPPLEMENTARY INFORMATION: Notice of under the Endangered Species Act of Section 4(c)(2)(B) requires that we this meeting is given under the Federal 1973, as amended (Act). We request any determine (1) whether a species no Advisory Committee Act, 5 U.S.C. App. new information on these populations longer meets the definition of (Pub. L. 92–463). The mission of the that may have a bearing on their threatened or endangered and should be State and Local Training Advisory classification as endangered or removed from the List (delisted); (2) Committee is to advise and make threatened. Based on the results of these whether a species more properly meets recommendations on matters relating to 5-year reviews, we will make a finding the definition of threatened and should the selection, development, content and on whether these populations are be reclassified from endangered to delivery of training services by the OSL/ properly classified under the Act. threatened; or (3) whether a species FLETC to its state, local, campus, and DATES: To allow us adequate time to more properly meets the definition of tribal law enforcement customers. conduct these reviews, we must receive endangered and should be reclassified

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from threatened to endangered. Using species was listed, or the interpretation on the results of these 5-year reviews, the best scientific and commercial data of such data, were in error. Any change we will make the requisite findings available, a species will be considered in Federal classification requires a under section 4(c)(2)(B) of the Act. for delisting if the data substantiate that separate rulemaking process. Therefore, Our regulations at 50 CFR 424.21 the species is neither endangered nor we are requesting submission of any require that we publish a notice in the threatened for one or more of the such information that has become Federal Register announcing those following reasons: (1) The species is available for each of the three piping considered extinct; (2) the species is plover populations since we initiated species currently under review. This considered to be recovered; and/or (3) the last formal status review on notice announces initiation of our active the original data available when the November 6, 1991 (56 FR 56882). Based review of the piping plover (Table 1).

TABLE 1—PIPING PLOVER LISTING INFORMATION SUMMARY

Common name Scientific name Status Where listed Final listing rule

Piping plover (Great Charadrius melodus Endangered ...... U.S.A. (Great Lakes watershed in States of 50 FR 50726; 12/11/1985 Lakes breeding IL, IN, MI, MN, NY, OH, PA, and WI), population). Canada (Ont.). Piping plover (Atlantic Charadrius melodus Threatened ...... Entire, except those areas where listed as 50 FR 50726; 12/11/1985 Coast and Northern endangered above. Great Plains popu- lations).

What Information Do We Consider in studies or analysis of data that may Piping Plover.’’ You may also view Our Review? show population size or trends; information we receive in response to In our 5-year review, we consider all information pertaining to the biology or this notice, as well as other new information available at the time of ecology of the species; information documentation in our files, at the the review. These reviews will consider regarding the effects of current land locations below by appointment, during the best scientific and commercial data management on population distribution normal business hours. Please contact that have become available since the and abundance; information on the the appropriate person below. Mail or original listing determination or most current condition of habitat; and recent hand-deliver information to the recent status review of each species, information regarding conservation address(es) below as the information such as—(A) Species biology, including measures that have been implemented pertains to the piping plover in the but not limited to population trends, to benefit the species. Additionally, we corresponding States and other areas: distribution, abundance, demographics, specifically request information Michigan, Wisconsin, Minnesota, and genetics; (B) Habitat conditions, regarding the current distribution of Illinois, Indiana, Ohio, Pennsylvania, including but not limited to amount, populations and evaluation of threats and Ontario: U.S. Fish and Wildlife distribution, and suitability; (C) faced by the species in relation to the Service, East Lansing Field Office, 2651 Conservation measures that have been five listing factors (as defined in section Coolidge Road, Suite 101, East Lansing, implemented to benefit the species; (D) 4(a)(1) of the Act) and the species’ listed MI 48823–5902; Attention: Mr. Jack Threat status and trends (see five factors status as judged against the definition of Dingledine. Direct inquiries to Mr. under heading ‘‘How do we determine threatened or endangered. Finally, we Dingledine at 517–351–6320 (phone) or _ whether a species is endangered or solicit recommendations pertaining to FW3MidwestRegion threatened?’’); and (E) Other new the development of, or potential updates [email protected] (e-mail). information, data, or corrections, to recovery plans and additional actions Montana, North Dakota, South including but not limited to taxonomic or studies that would benefit these Dakota, Iowa, Nebraska, Colorado, or nomenclatural changes, identification populations in the future. Kansas, Alberta, Saskatchewan, and of erroneous information contained in Our practice is to make information, Manitoba: U.S. Fish and Wildlife the List of Endangered and Threatened including names and home addresses of Service, 3425 Miriam Avenue, Wildlife and Plants, and improved respondents, available for public Bismarck, ND 58501; Attention: Ms. analytical methods. review. Before including your address, Carol Aron. Direct inquiries to Ms. Aron telephone number, e-mail address, or at 701–250–4481 (phone) or Public Solicitation of New Information other personal identifying information [email protected] (e-mail). We request any new information in your response, you should be aware North Carolina, South Carolina, concerning the status of the piping that your entire submission—including Georgia, Bahamas, Cuba, Puerto Rico, plover (Atlantic Coast, Great Lakes, and your personal identifying information— and other Caribbean Islands: U.S. Fish Northern Great Plains populations). See may be made publicly available at any and Wildlife Service, P.O. Box 33726, ‘‘What Information Do We Consider in time. While you can ask us in your Raleigh, NC 27636–3726; Attention: Mr. Our Review?’’ for specific criteria. If you response to withhold your personal David Rabon. Direct inquiries to Mr. submit information, support it with identifying information from public Rabon at 919–856–4520, extension 16 documentation such as maps, review, we cannot guarantee that we (phone) or [email protected] $fnl;(e- bibliographic references, methods used will be able to do so. mail). to gather and analyze the data, and/or Submit all electronic information in Texas and Mexico: U.S. Fish and copies of any pertinent publications, Text or Rich Text format. Provide your Wildlife Service, Ecological Services reports, or letters by knowledgeable name and return address in the body of Field Office, c/o TAMUCC, 6300 Ocean sources. We specifically request your message, and include the following Drive—USFWS Unit 5837, Corpus information regarding data from any identifier in the e-mail subject line: Christi, TX 78412–5837; Attention: Ms. systematic surveys, as well as any ‘‘Information on 5-year review for Robyn Cobb. Direct inquiries to Ms.

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Cobb at 361–994–9005 (phone) or The present or threatened destruction, DEPARTMENT OF THE INTERIOR [email protected] (e-mail). modification, or curtailment of its Florida, Alabama, Mississippi, and habitat or range; (B) Overutilization for Fish and Wildlife Service Louisiana: U.S. Fish and Wildlife commercial, recreational, scientific, or Service, 1601 Balboa Avenue, Panama educational purposes; (C) Disease or [FWS–R9–IA–2008–N0240; 96300–1671– City, FL 32405; Attention: Ms. Patty predation; (D) The inadequacy of 0000–P5] Kelly. Direct inquiries to Ms. Kelly at existing regulatory mechanisms; or (E) 850–769–0552, extension 228 (phone) or Other natural or manmade factors Issuance of Permits [email protected] (e-mail). affecting its continued existence. Maine, New Hampshire, Section 4(a)(1) of the Act requires that AGENCY: Fish and Wildlife Service, Massachusetts, Rhode Island, our determination be made on the basis Interior. Connecticut, New York, New Jersey, of the best scientific and commercial Delaware, Maryland, Virginia, data available. ACTION: Notice of issuance of permits for Newfoundland, Quebec, Nova Scotia, endangered species and/or marine What Could Happen as a Result of Our Prince Edward Island, New Brunswick, mammals. Review? and St. Pierre and Miquelon (France), piping plovers in any area not listed For the species under review, if we SUMMARY: The following permits were above, information pertinent to multiple find new information that indicates a issued. regions: U.S. Fish and Wildlife Service, change in classification may be 73 Weir Hill Road, Sudbury, MA 01776; warranted, we may propose a new rule ADDRESSES: Documents and other Attention: Ms. Anne Hecht. Direct that could do one of the following: (a) information submitted with these inquiries to Ms. Hecht at 978–443–4325 Reclassify the population from applications are available for review, (phone) or [email protected] (e-mail). threatened to endangered (uplist); (b) subject to the requirements of the reclassify the population from Privacy Act and Freedom of Information How Are These Populations Currently endangered to threatened (downlist); or Act, by any party who submits a written Listed? (c) remove the population(s) from the request for a copy of such documents to: Table 1 provides current listing List (delist). U.S. Fish and Wildlife Service, Division information. Also, the List, which If we determine that a change in of Management Authority, 4401 North covers all listed species, is available on classification is not warranted, then the Fairfax Drive, Room 212, Arlington, populations will remain on the List our Internet site at http:// Virginia 22203; fax 703–358–2281. endangered.fws.gov/ under their current status. FOR FURTHER INFORMATION CONTACT: wildlife.html#Species. References Division of Management Authority, Definitions U.S. Fish and Wildlife Service, 1988a. telephone 703–358–2104. To help you submit information about Atlantic Coast piping plover recovery plan. SUPPLEMENTARY INFORMATION: the species we are reviewing, we U.S. Fish and Wildlife Service, Newton Notice is Corner, MA. 77pp. hereby given that on the dates below, as provide the following definitions: ll, 1988b. Great Lakes and Northern Great Species includes any species or authorized by the provisions of the Plains piping plover recovery plan. U.S. Endangered Species Act of 1973, as subspecies of fish, wildlife, or plant, Fish and Wildlife Service, Twin Cities, and any distinct population segment of MN. 160pp. amended (16 U.S.C. 1531 et seq.), and/ any species of vertebrate, which ll, 1996. Piping plover (Charadrius or the Marine Mammal Protection Act of interbreeds when mature; melodus) Atlantic Coast population, 1972, as amended (16 U.S.C. 1361 et Endangered species means any revised recovery plan. Hadley, MA. 258pp. seq.), the Fish and Wildlife Service species that is in danger of extinction ll, 2003. Recovery plan for the Great Lakes issued the requested permits subject to throughout all or a significant portion of piping plover (Charadrius melodus). Ft. Snelling, MN. 141pp. certain conditions set forth therein. For its range; and each permit for an endangered species, Threatened species means any species Authority the Service found that (1) the that is likely to become an endangered We publish this document under the application was filed in good faith, (2) species within the foreseeable future authority of the Endangered Species Act the granted permit would not operate to throughout all or a significant portion of of 1973, as amended (16 U.S.C. 1531 et the disadvantage of the endangered its range. seq.). species, and (3) the granted permit How Do We Determine Whether a Dated: August 22, 2008. would be consistent with the purposes Species Is Endangered or Threatened? T.J. Miller, and policy set forth in Section 2 of the Section 4(a)(1) of the Act establishes Acting Assistant Regional Director, Ecological Endangered Species Act of 1973, as that we determine whether a species is Services, Midwest Region. amended. endangered or threatened based on one [FR Doc. E8–23073 Filed 9–26–08; 4:15 pm] or more of the five following factors: (A) BILLING CODE 4310–55–P

ENDANGERED SPECIES

Permit Permit No. Applicant Receipt of application Federal Register notice issuance date

170807 ...... Dirk Arthur dba Stage Magic Inc ...... 73 FR 21981; April 23, 2008 ...... July 29, 2008.

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ENDANGERED MARINE MAMMALS

Permit Permit No. Applicant Receipt of application Federal Register notice issuance date

167514 ...... Catherine L. Foy, Foy Marine Consulting ...... 73 FR 23266; April 29, 2008 ...... August 22, 2008.

Dated: August 22, 2008. The applicant requests a permit to male bontebok (Damaliscus pygargus Lisa J. Lierheimer, import blood samples from 4 female pygargus) culled from a captive herd Senior Permit Biologist, Branch of Permits, captive bred Przewalski’s horses (Equus maintained under the management Division of Management Authority. przewalskii) at the Association pour le program of the Republic of South Africa, [FR Doc. E8–22954 Filed 9–29–08; 8:45 am] cheval de Przewalski, France, for the for the purpose of enhancement of the BILLING CODE 4310–55–P purpose of enhancement of the survival of the species. propagation or survival of the species. Applicant: Bruce R. Schoeneweis, This notification covers a one-time Alton, IL, PRT–191134. DEPARTMENT OF THE INTERIOR import. The applicant requests a permit to Applicant: North Carolina Wildlife import the sport-hunted trophies of two Fish and Wildlife Service Resources Commission, Beaufort, NC, male bonteboks (Damaliscus pygargus [FWS–R9–IA–2008–N0238; 96300–1671– PRT–192398. pygargus) culled from a captive herd 0000–P5] The applicant requests a permit to maintained under the management import one live stranded Kemp’s ridley program of the Republic of South Africa, Receipt of Applications for Permit (Lepidochelys kempii) sea turtle from for the purpose of enhancement of the AGENCY: Fish and Wildlife Service, the United Kingdom for the purpose of survival of the species. Interior. enhancement of the survival of the Dated: August 22, 2008. species. ACTION: Notice of receipt of applications Lisa J. Lierheimer, Applicant: Virginia Safari Park, Natural for permit. Senior Permit Biologist, Branch of Permits, Bridge, VA, PRT–192751. Division of Management Authority. SUMMARY: The public is invited to The applicant requests a permit to [FR Doc. E8–22955 Filed 9–29–08; 8:45 am] comment on the following applications import two male captive-bred cheetahs to conduct certain activities with (Acinonyx jubatus) from the De Wildt BILLING CODE 4310–55–P endangered species. Cheetah Breeding Center, South Africa DATES: Written data, comments or for the purpose of enhancement of the DEPARTMENT OF THE INTERIOR requests must be received by October survival of the species. 30, 2008. Applicant: Houston Zoo, Inc., Houston, Fish and Wildlife Service ADDRESSES: Documents and other TX, PRT–192243. The applicant requests a permit to [FWS—R9–IA–2008–N0220; 96300–1671– information submitted with these 0000–P5] applications are available for review, purchase in interstate commerce one subject to the requirements of the female Asian elephant (Elephas Receipt of Applications for Permit Privacy Act and Freedom of Information maximus) born in the wild during 1983 Act, by any party who submits a written from Have Trunk Will Travel, Perris, AGENCY: Fish and Wildlife Service, request for a copy of such documents California for the purpose of Interior. within 30 days of the date of publication enhancement of the survival of the ACTION: Notice of receipt of applications of this notice to: U.S. Fish and Wildlife species. for permit. Service, Division of Management Applicant: Ricardo Longoria, Laredo, SUMMARY: Authority, 4401 North Fairfax Drive, TX, PRT–192403. The public is invited to Room 212, Arlington, Virginia 22203; The applicant requests a permit comment on the following applications fax 703/358–2281. authorizing take, interstate and foreign to conduct certain activities with endangered species. FOR FURTHER INFORMATION CONTACT: commerce of swamp deer (Rucervus Division of Management Authority, duvaucelii), from his captive herd for DATES: Written data, comments or telephone 703/358–2104. the purpose of enhancement of the requests must be received by October SUPPLEMENTARY INFORMATION: survival of the species. This notification 30, 2008. covers activities conducted by the ADDRESSES: Documents and other Endangered Species applicant over a five-year period. information submitted with these The public is invited to comment on Applicant: Arno W. Weiss, St. Charles, applications are available for review, the following applications for a permit MI, PRT–191092. subject to the requirements of the to conduct certain activities with The applicant requests a permit to Privacy Act and Freedom of Information endangered species. This notice is import the sport-hunted trophy of one Act, by any party who submits a written provided pursuant to Section 10(c) of male bontebok (Damaliscus pygargus request for a copy of such documents the Endangered Species Act of 1973, as pygargus) culled from a captive herd within 30 days of the date of publication amended (16 U.S.C. 1531 et seq.). maintained under the management of this notice to: U.S. Fish and Wildlife Written data, comments, or requests for program of the Republic of South Africa, Service, Division of Management copies of these complete applications for the purpose of enhancement of the Authority, 4401 North Fairfax Drive, should be submitted to the Director survival of the species. Room 212, Arlington, Virginia 22203; (address above). Applicant: Eldon R. Bell, San Angelo, fax 703/358–2281. Applicant: The Science and TX, PRT–191126. FOR FURTHER INFORMATION CONTACT: Conservation Center, Zoo Montana, The applicant requests a permit to Division of Management Authority, Billings, MT, PRT–187319. import the sport-hunted trophy of one telephone 703/358–2104.

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SUPPLEMENTARY INFORMATION: survival of the species. This notification Dated: August 8, 2008. covers activities conducted by the Michael L. Carpenter, Endangered Species applicant over a five-year period. Senior Permit Biologist, Branch of Permits, The public is invited to comment on Applicant: David E. Robinson, Rancho Division of Management Authority. the following applications for a permit Sante Fe, CA, PRT–162422. [FR Doc. E8–22973 Filed 9–29–08; 8:45 am] to conduct certain activities with BILLING CODE 4310–55–P endangered species. This notice is The applicant requests a permit to provided pursuant to Section 10(c) of import the sport-hunted trophy of one the Endangered Species Act of 1973, as male bontebok (Damaliscus pygargus DEPARTMENT OF THE INTERIOR amended (16 U.S.C. 1531 et seq. ). pygargus) culled from a captive herd Written data, comments, or requests for maintained under the management Bureau of Land Management copies of these complete applications program of the Republic of South Africa, should be submitted to the Director for the purpose of enhancement of the California Desert District Advisory (address above). survival of the species. Council; Meeting Applicant: University of Illinois Applicant: Aymer L. Curtin, Gainsville, AGENCY: Bureau of Land Management, Veterinary Diagnostic Laboratory, FL, PRT–170073. Interior. Maywood, IL, PRT–187330. The applicant requests a permit to ACTION: Notice of public meeting. The applicant requests a permit to import the sport-hunted trophy of one import biological specimens taken male bontebok (Damaliscus pygargus SUMMARY: Notice is hereby given, in worldwide from dead wild and captive- pygargus) culled from a captive herd accordance with Public Laws 92–463 held threatened and endangered species maintained under the management and 94–579, that the California Desert of Canidae (wolves, foxes, dholes and program of the Republic of South Africa, District Advisory Council to the Bureau wild dogs), Hyaenidae (hyaenas), for the purpose of enhancement of the of Land Management, U.S. Department Felidae (cats), and Mustelidae (otters, survival of the species. of the Interior, will participate in a field not including marine and sea otters) for tour of BLM-administered public lands the purpose of enhancement of the Applicant: Christopher J. Reinesch, on Friday, November 14, 2008 from survival of the species through disease Gilbert, AZ, PRT–185764. 8 a.m. to 4 p.m., and meet in formal and death investigations. This The applicant requests a permit to session on Saturday, November 15 from notification covers activities to be import the sport-hunted trophy of one 8 a.m. to 4 p.m. at the Heritage Inn and conducted by the applicant over a five- male bontebok (Damaliscus pygargus Suites, 1050 N. Norma, Ridgecrest, CA. year period. pygargus) culled from a captive herd The Council and interested members Applicant: Florida Museum of Natural maintained under the management of the public will depart for the field History, Gainesville, FL, PRT–677336. program of the Republic of South Africa, tour at 8 a.m. from the lobby of the The applicant requests renewal of for the purpose of enhancement of the Heritage Inn and Suites. The public is their permit to import, export, and re- survival of the species. welcome to participate in the tour but export non-living museum specimens of should plan on providing their own Applicant: Thomas D. Lund, endangered and threatened species of transportation, lunch, and beverage. A Gardnerville, NV, PRT–185974. plants and animals previously four-wheel drive vehicle is strongly accessioned into the applicant’s The applicant requests a permit to recommended for the field tour. collection for scientific research. This import the sport-hunted trophy of one Agenda topics for the formal session notification covers activities to be male bontebok (Damaliscus pygargus on Saturday will include updates by conducted by the applicant over a five- pygargus) culled from a captive herd Council members and reports from the year period. maintained under the management BLM District Manager and five field office managers. Additional agenda Applicant: El Paso Zoo, El Paso, TX, program of the Republic of South Africa, topics are being developed. Once PRT–191094. for the purpose of enhancement of the survival of the species. finalized, the field tour and meeting The applicant requests a permit to agendas will be published in a news export one female captive-born Malayan Applicant: Brook F. Minx, Houston, TX, release prior to the meeting and posted tapir (Tapirus indicus) to Africam PRT–185959. on the BLM California state Web site at Safari, Mexico for the purpose of http://www.blm.gov/ca/news/rac.html. enhancement of the species through The applicant requests a permit to SUPPLEMENTARY INFORMATION: captive breeding and conservation import the sport-hunted trophy of one All education. male bontebok (Damaliscus pygargus California Desert District Advisory pygargus) culled from a captive herd Council meetings are open to the public. Applicant: Captive-bred Wildlife maintained under the management Public comment for items not on the Foundation, Portal, AZ, PRT–191393. program of the Republic of South Africa, agenda will be scheduled at the The applicant requests a permit to for the purpose of enhancement of the beginning of the meeting Saturday export 6 captive hatched Galapagos survival of the species. morning. Time for public comment may tortoises (Chelonoidis nigra) to Edward be made available by the Council Applicant: Patricia A. Pilia, Longmont, Cham, Ouezon City, Philippines for the Chairman during the presentation of PRT–190199. purpose of enhancement of the survival various agenda items, and is scheduled of the species. The applicant requests a permit to at the end of the meeting for topics not Applicant: David W. Nesbit, Gonzales, import the sport-hunted trophy of one on the agenda. TX, PRT–189408. male bontebok (Damaliscus pygargus While the Saturday meeting is The applicant requests a permit pygargus) culled from a captive herd tentatively scheduled from 8 a.m. to authorizing take, interstate and foreign maintained under the management 4 p.m., the meeting could conclude commerce of swamp deer (Rucervus program of the Republic of South Africa, prior to 4 p.m. should the Council duvaucelii), from his captive herd for for the purpose of enhancement of the conclude its presentations and the purpose of enhancement of the survival of the species. discussions. Therefore, members of the

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public interested in a particular agenda the District of Columbia or its environs Dated: September 11, 2008. item or discussion should schedule to honor members of the Armed Forces Lisa A. Mendelson-Ielmini, their arrival accordingly. who served in World War I. Regional Director, National Capital Region. Written comments may be filed in The meeting will be open to the [FR Doc. E8–22903 Filed 9–29–08; 8:45 am] advance of the meeting for the public. Any person may file with the BILLING CODE 4312–JK–P California Desert District Advisory Commission a written statement Council, c/o Bureau of Land concerning the matters to be discussed. Management, External Affairs, 22835 Persons who wish to file a written DEPARTMENT OF THE INTERIOR Calle San Juan de Los Lagos, Moreno statement or testify at the meeting or Valley, California 92553. Written who want further information Bureau of Reclamation comments also are accepted at the time concerning the meeting may contact Ms. of the meeting and, if copies are Agency Information Collection; Nancy Young, Secretary to the Proposed Revisions to a Currently provided to the recorder, will be Commission. incorporated into the minutes. Approved Information Collection; Comment Request FOR FURTHER INFORMATION CONTACT: DATES: Monday, October 20, 2008, and David Briery, BLM California Desert Friday, November 7, 2008. AGENCY: Bureau of Reclamation, District External Affairs, (951) 697– ADDRESSES: National Building Museum, Interior. 5220. Room 312, 401 F Street, NW., ACTION: Notice of renewal of a currently Dated: September 17, 2008. Washington, DC 20001. approved collection (OMB No. 1006– 0003). Steven J. Borchard, FOR FURTHER INFORMATION CONTACT: Ms. District Manager. Nancy Young, Secretary to the SUMMARY: In accordance with the [FR Doc. E8–22923 Filed 9–29–08; 8:45 am] Commission, by telephone at (202) 619– Paperwork Reduction Act of 1995, the BILLING CODE 4310–40–P 7097, by e-mail at Bureau of Reclamation (Reclamation, [email protected], by telefax at we) intends to submit a request for (202) 619–7420, or by mail at the renewal (with revisions) of an existing DEPARTMENT OF THE INTERIOR National Capital Memorial Advisory approved information collection to the Commission, 1100 Ohio Drive, SW., Office of Management and Budget National Park Service Room 220, Washington, DC 20242. (OMB): Right-of-Use Application (Form National Capital Memorial Advisory SUPPLEMENTARY INFORMATION: The 7–2540), OMB Control Number: 1006– Commission; Notice of Public Meeting Commission was established by Public 0003. Title 43 CFR part 429 requires that Law 99–652, the Commemorative Works applicants for certain uses of Bureau of AGENCY: Department of the Interior, Act (40 U.S.C. Chapter 89 et seq.), to Reclamation land apply using Form 7– National Park Service. advise the Secretary of the Interior (the 2540. We request your comments on ACTION: Notice of meeting. Secretary) and the Administrator, specific aspects of the revised Right-of- Use Application Form. SUMMARY: General Services Administration (the Notice is hereby given that a DATES: We must receive your written meeting of the National Capital Administrator) on policy and procedures for establishment of, and comments on or before December 1, Memorial Advisory Commission (the 2008. Commission) will be held on Monday, proposals to establish, commemorative October 20, at 10 a.m., at the National works in the District of Columbia and its ADDRESSES: You may send written Building Museum, Room 312, 401 F environs, as well as such other matters comments to the Bureau of Reclamation, Street, NW., Washington, DC. If the as it may deem appropriate concerning Attention: 84–53000, PO Box 25007, meeting must be continued, the meeting commemorative works. Denver, CO 80225–0007. You may will resume at this same location on The Commission examines each request copies of the proposed revised Friday, November 7, 2008, at 1 p.m. memorial proposal for conformance to application form by writing to the above The purpose of the meeting will be to the Commemorative Works Act, and address or by contacting Greek Taylor at discuss currently authorized and makes recommendations to the (303) 445–2895. proposed memorials in the District of Secretary and the Administrator and to FOR FURTHER INFORMATION CONTACT: Columbia and its environs. In addition Members and Committees of Congress. Greek Taylor at: (303) 445–2895. to discussing general matters and The Commission also serves as a source SUPPLEMENTARY INFORMATION: conducting routine business, the of information for persons seeking to I. Abstract Commission will review three action establish memorials in Washington, DC, items: and its environs. Reclamation is responsible for 1. A request to extend the Martin The members of the Commission are approximately 8 million acres of land Luther King, Jr., Memorial Foundation’s as follows: which directly support Reclamation’s Federal water projects in the 17 western authority to establish the Martin Luther Director, National Park Service; King, Jr., Memorial in Washington, DC. states. Individuals or entities wanting to 2. H.R. 6195, a bill to authorize the Administrator, General Services use Reclamation’s lands, facilities, or Korean War Veterans Association to Administration; waterbodies must submit an application establish a commemorative work on Chairman, National Capital Planning to gain permission for such uses. Federal land in the District of Columbia Commission; Examples of such uses are: near the Korean War Veterans Memorial Chairman, Commission of Fine Arts; —Agricultural uses such as grazing and to honor members of the Armed Forces Mayor of the District of Columbia; farming; who have served in Korea since July 28, —commercial or organized recreation Architect of the Capitol; 1953. and sporting activities; 3. H.R. 6696, a bill to authorize the Chairman, American Battle —other commercial activities such as American Battle Monuments Monuments Commission; ‘‘guiding and outfitting’’ and ‘‘filming Commission to establish a memorial in Secretary of Defense. and photography;’’ and

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—resource exploration and extraction, (a) Whether the proposed collection of 205–3116. Copies of non-confidential including sand and gravel removal information is necessary for the proper documents filed in connection with this and timber harvesting. performance of our functions, including investigation are or will be available for Reclamation reviews applications to whether the information will have inspection during official business determine whether granting individual practical use; hours (8:45 a.m. to 5:15 p.m.) in the use authorizations is compatible with (b) the accuracy of our burden Office of the Secretary, U.S. Reclamation’s present or future uses of estimate for the proposed collection of International Trade Commission, 500 E the lands, facilities, or waterbodies. information; Street, SW., Washington, DC 20436, (c) ways to enhance the quality, When we find a proposed use telephone (202) 205–2000. General usefulness, and clarity of the compatible, we advise the applicant of information concerning the Commission information to be collected; and the estimated administrative costs and may also be obtained by accessing its estimated application processing time. (d) ways to minimize the burden of the information collection on Internet server at http://www.usitc.gov. In addition to the administrative costs, The public record for this investigation we require the applicant to pay the respondents, including the use of automated collection techniques or may be viewed on the Commission’s value of the use authorization based on electronic docket (EDIS) at http:// an appraisal or competitive bidding. If other forms of information technology. edis.usitc.gov. Hearing-impaired the application is for construction of a We will summarize all comments persons are advised that information on bridge, building, or other significant received regarding this notice. We will this matter can be obtained by construction project, Reclamation may publish that summary in the Federal require that all plans and specifications Register when the information contacting the Commission’s TDD be signed and sealed by a professional collection request is submitted to OMB terminal on (202) 205–1810. engineer licensed by the State in which for review and approval. Before including your address, SUPPLEMENTARY INFORMATION: On May 8, the work is proposed. telephone number, e-mail address, or 2008, the Commission instituted this II. Changes to the Right of Use other personal identifying information investigation based on the complaint, as Application Form and Its Instructions in your comment, you should be aware supplemented, of Jaccard Corporation of Orchard Park, New York (‘‘Jaccard’’), We changed the form and its that your entire comment (including alleging violations of section 337 of the instructions to comply with proposed your personal identifying information) Tariff Act of 1930 in the importation revisions to 43 CFR part 429. The name may be made publicly available at any of the form is now ‘‘Use Authorization time. While you can ask us in your into the United States, the sale for Application’’ and ‘‘right-of-use’’ is comment to withhold your personal importation, and the sale within the replaced with ‘‘use authorization’’ in the identifying information from public United States after importation of form and instructions. We expanded the review, we cannot guarantee that we certain hand-held meat tenderizers by examples in the instructions of will be able to do so. reason of infringement of U.S. proposed uses for which you may seek Dated: September 17, 2008. Trademark Registration No. 1,172,879 permission. The instructions reflect the Roseann Gonzales, and also by reason of infringement of reduction of the application fee from Policy and Program Services, Denver Office. trade dress. 73 FR 27846 (May 14, 2008). $200 to $100. We made other changes to [FR Doc. E8–22916 Filed 9–29–08; 8:45 am] The respondents are Keystone Manufacturing, Inc. of Buffalo, New the form and the instructions to improve BILLING CODE 4310–MN–P the readability and information- York and Mr. Bar-B-Q-, Inc. of Old gathering. For instance, the form now Bethpage, New York. 73 FR 41117 (July requests day and evening phone INTERNATIONAL TRADE 17, 2008). numbers, instead of work and home COMMISSION On August 26, 2008, Jaccard moved to numbers. withdraw its complaint and terminate [Investigation No. 337–TA–647] III. Data the investigation as to all respondents OMB Control Number: 1006–0003. In the Matter of Certain Hand-Held ‘‘without prejudice.’’ Respondents Title: Right-of-Use Application. Meat Tenderizers; Notice of Decision objected on the ground that the Form Number: Form 7–2540. Not To Review an Initial Determination termination should be ‘‘with prejudice.’’ Frequency: Each time a right-of-use is Terminating the Investigation Based The investigative attorney argued that requested. on the Withdrawal of the Complaint the investigation should be terminated Respondents: Individuals, based on the withdrawal of the AGENCY: U.S. International Trade corporations, companies, and State and complaint without styling the Commission. local entities who want to use termination as either with or without ACTION: Reclamation lands, facilities, or Notice. prejudice. The ALJ agreed and therefore waterbodies. SUMMARY: Notice is hereby given that granted the termination without stating Estimated Annual Total Number of the U.S. International Trade that it is ‘‘with prejudice’’ or ‘‘without Respondents: 500. prejudice.’’ No petitions for review of Estimated Number of Responses per Commission has determined not to this ID were filed. The Commission has Respondent: 1. review an initial determination (‘‘ID’’) Estimated Total Number of Annual (Order No. 6) issued by the presiding determined not to review this ID. Responses: 500. administrative law judge (‘‘ALJ’’) The authority for the Commission’s Estimated Total Annual Burden on terminating the investigation based on determination is contained in section Respondents: 1,000 hours. the withdrawal of the complaint. 337 of the Tariff Act of 1930, as Estimated Completion Time Per FOR FURTHER INFORMATION CONTACT: amended (19 U.S.C. 1337), and section Respondent: 2 hours. Mark B. Rees, Office of the General 210.42 of the Commission’s Rules of Counsel, U.S. International Trade Practice and Procedure (19 CFR 210.42). IV. Request for Comments Commission, 500 E Street, SW., We invite your comments on: Washington, DC 20436, telephone (202) Issued: September 24, 2008.

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By order of the Commission. www.nrc.gov/reactors/new-reactors/ staff worked with the Idaho Department Marilyn R. Abbott, col.html. of Environmental Quality and the U.S. Secretary to the Commission. Dated at Rockville, Maryland, this 24th day Environmental Protection Agency (EPA) [FR Doc. E8–22862 Filed 9–29–08; 8:45 am] of September, 2008. to establish an approach for remediation BILLING CODE 7020–02–P For the Nuclear Regulatory Commission. of the site. EPA agreed to perform remediation Mark E. Tonacci, activities at the SRUD site in accordance Senior Project Manager, ESBWR/ABWR Projects Branch 2, Division of New Reactor with the Comprehensive Environmental NUCLEAR REGULATORY Licensing, Office of New Reactors. Response, Compensation and Liability COMMISSION Act, as amended, 42 U.S.C. 9601(14) [FR Doc. E8–22909 Filed 9–29–08; 8:45 am] and (33). A Removal Action Work Plan Exelon Nuclear Texas Holdings, LLC; BILLING CODE 7590–01–P (ADAMS No. ML072880344), which Notice of Receipt and Availability of specified its step-by-step process for Application for a Combined License NUCLEAR REGULATORY conducting cleanup activities at the On September 2, 2008, Exelon COMMISSION SRUD site, was developed by the EPA Nuclear Texas Holdings, LLC filed with and approved by the NRC. [Docket No. 40–3400, License No. P–4001 The EPA’s Removal Action Work Plan the U.S. Nuclear Regulatory (Expired), R–230 (Expired)] included the removal and disposal of Commission (NRC, the Commission) hazardous chemical and radiological pursuant to Section 103 of the Atomic Salmon River Uranium Development contaminants that may pose a threat to Energy Act and Title 10 of the Code of Site; Notice of Completion of workers, public health and welfare, and Remediation at Salmon River Uranium Federal Regulations (10 CFR) Part 52, the environment. EPA’s radiological Development Site, Near North Fork, ID ‘‘Licenses, Certifications, and Approvals release criteria was based on a for Nuclear Power Plants,’’ an recreational use scenario for the site. application for a combined license ACTION: Notice of completion of remediation at the Salmon River Implementation of the EPA’s work (COL) for two economic simplified plan began on October 23, 2007, and boiling water reactor (ESBWR) nuclear Uranium Development Site, near North Fork, Idaho. was completed on June 3, 2008. power plants, to be located in Victoria Contaminated waste material above the County, Texas. The reactors are to be SUMMARY: The Nuclear Regulatory unrestricted release criteria was shipped identified as Victoria County Station, Commission (NRC) is noticing the to licensed disposal sites. EPA’s work Units 1 and 2. completion of remediation activities at activities summary report is An applicant may seek a COL in the Salmon River Uranium documented in the Final Removal accordance with Subpart C of 10 CFR Development Site, near North Fork, Action Report, dated September 12, Part 52. The information submitted by Idaho. 2008 (ADAMS No. ML082590288). the applicant includes certain Background: The U.S. Atomic Energy The NRC staff conducted administrative information such as Commission (AEC) issued Source confirmatory radiological surveys of site financial qualifications submitted Material License P–4001 to Salmon structures and land areas and collected pursuant to [10 CFR 52.77], as well as River Uranium Development, Inc. soil samples for analysis by the NRC’s technical information submitted (SRUD) on October 10, 1958. This independent laboratory contractor to pursuant to [10 CFR 52.79]. license authorized SRUD to possess and verify results obtained by EPA. Subsequent Federal Register notices transfer source material. On March 30, Confirmatory surveys consisted of will address the acceptability of the 1959, the AEC issued Source Material surface scans for alpha, beta and gamma tendered COL application for docketing License No. R–0230 to SRUD. This radiation, direct measurements for total and provisions for participation of the license authorized the receipt and alpha and beta activity, collection and public in the COL review process. possession of source material for analysis of soil samples for thorium and A copy of the application is available processing. Source Material License No. uranium, and collection of smear for public inspection at the R–0230 expired on June 30, 1959 and samples for determining removable Commission’s Public Document Room Source Material License No. P–4001 radioactivity levels. The survey (PDR), located at One White Flint North, expired on October 31, 1959. information and sample results are Public File Area O1 F21, 11555 Both uranium and thorium ores were documented in Inspection Reports 040– Rockville Pike (first floor), Rockville, processed at the site. Processing of 03400/07–01 (ADAMS No. Maryland, and via the Agencywide source material occurred at two separate ML080320117) and 040–03400/08–01 Documents Access and Management times, the late-1950s and the late-1970s. (ADAMS No. ML082180190). The NRC System (ADAMS) Public Electronic Processing operations were conducted performed an independent dose Reading Room on the Internet at the in the late-1950s in accordance with the assessment using the recreational NRC Web site, http://www.nrc.gov/ AEC licenses. During the late-1970s, scenario employed by the EPA to reading-rm/adams.html. The cover pilot plant operations were conducted at evaluate the EPA’s cleanup criteria and letter ADAMS accession number is the site to determine the viability of evaluate the condition of the SRUD site. ML082540469. Future publicly available experimental ore processing techniques. Based on the considerations discussed documents related to the application The SRUD site was placed on the above, the Commission has concluded will also be posted in ADAMS. Persons NRC’s Site Decommissioning that: (1) Radioactive material above who do not have access to ADAMS, or Management Plan (SDMP) list in 1994. release limits has been properly who encounter problems in accessing In May 2001, NRC staff visited the disposed; (2) reasonable effort has been the documents located in ADAMS, SRUD site and identified thorium made to eliminate residual radioactive should contact the NRC Public contamination in the form of partially contamination; and (3) FSSs and Document Room staff by telephone at processed ore. In 2003, the NRC and the associated documentation demonstrate 1–800–397–4209 or 301–415–4737, or Oak Ridge Institute for Science and that the site is suitable for unrestricted by e-mail to [email protected]. The Education conducted scoping surveys of release in accordance with the criteria application is also available at http:// the site. During 2004 and 2005, NRC in 10 CFR Part 20, Subpart E. Therefore,

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the Salmon River site near North Fork, needs this information in order to 202–789–6820 and Idaho is suitable for unrestricted use. adjudicate the claim. [email protected]. FOR FURTHER INFORMATION CONTACT: We received no comments on our 60- SUPPLEMENTARY INFORMATION: Additional relevant information is day notice on this information available for public inspection at the collection (OPM Form 1673), published I. Introduction Commission’s Public Document Room in the Federal Register on June 17, On September 22, 2008, the Postal (PDR), located at One White Flint North, 2008. Service filed a notice, which has been Public File Area O1 F21, 11555 Approximately 80 claims are assigned to Docket No. CP2008–25.1 Rockville Pike (first floor), Rockville, submitted annually. It takes This Notice announces an individual Maryland. Publicly available records approximately 60 minutes to complete negotiated service agreement, namely, a will be accessible electronically from the form. The annual estimated burden specific Global Expedited Package the Agency-wide Documents Access and is 80 hours. Service (GEPS) contract the Postal Management System’s (ADAMS) Public For copies of this proposal, contact Service has entered into with an Electronic Reading Room on the Internet Margaret A. Miller by telephone at (202) individual mailer. The Postal Service at the NRC Web site, http:// 606–2699, by FAX at (202) 418–3251, or believes that it is functionally www.nrc.gov/reading-rm/adams.html. by e-mail at [email protected]. equivalent to the Global Expedited Persons who do not have access to Please include a mailing address with Package Services 1 (GEPS 1) product ADAMS or who encounter problems in your request. established in Docket No. CP2008–5. accessing the documents located in DATES: Comments on this proposal Docket No. CP2008–5. The Governor’s ADAMS, should contact the NRC PDR should be received within 30 calendar Decision supporting the GEPS 1 product Reference staff by telephone at 1–800– days from the date of this publication. was filed in consolidated Docket No. 397–4209, 301–415–4737 or by e-mail to ADDRESSES: Send or deliver comments CP2008–5.2 In Order No. 86, the [email protected]. to: Commission established GEPS 1 as a product and held that additional Dated at Rockville, Maryland this 19th day Robert D. Hendler, Program Manager, of September 2008. Center for Merit Systems Compliance, contracts may be included as part of the GEPS 1 product if they meet the For the Nuclear Regulatory Commission. Division for Human Capital Leadership and Merit System requirements of 39 U.S.C. 3633, and if Keith I. McConnell, Compliance Group, U.S. Office of they are substantially equivalent to the Deputy Director, Decommissioning and Personnel Management, 1900 E Street, initial GEPS 1 contract filed in Docket Uranium Recovery Licensing Directorate, No. CP2008–5.3 The GEPS 1 product Division of Waste Management and NW., Room 6484, Washington, DC Environmental Protection, Office of Federal 20415; and provides volume-based incentives for and State Materials and Environmental John W. Barkhamer, OPM Desk Officer, mailers that send large volumes of Management Programs. Office of Information and Regulatory Express Mail International (EMI) and/or [FR Doc. E8–22908 Filed 9–29–08; 8:45 am] Affairs, Office of Management and Priority Mail International (PMI). Related contract. The Postal Service BILLING CODE 7590–01–P Budget, New Executive Office Building, 725 17th Street, NW., Room filed the proposed contract in this 10235, Washington, DC 20503. docket pursuant to 39 CFR 3015.5, asserting that it is in accord with Order OFFICE OF PERSONNEL U.S. Office of Personnel Management. No. 86 and is substantially equivalent to MANAGEMENT Howard Weizmann, the initial GEPS 1 contract filed with the [OMB Control No. 3206–0232; OPM Form Deputy Director. Commission. Id. In support of its filing, 1673] [FR Doc. E8–22974 Filed 9–29–08; 8:45 am] the Postal Service also provides the BILLING CODE 6325–43–P contract and certain supporting material Submission for OMB Review: under seal. The Notice contains the Comment Request for Review of an Postal Service’s arguments that this Expiring Information Collection: POSTAL REGULATORY COMMISSION contract is substantially equivalent and Procedures for Submitting [Docket No. CP2008–25; Order No. 110] that it exhibits similar cost and market Compensation and Leave Claims characteristics. Notice at 3–5. The Postal AGENCY: U.S. Office of Personnel Global Expedited Package Service Service also maintains that the contract, Management. Contracts by virtue of its terms, fits within the proposed Mail Classification Schedule ACTION: Notice. AGENCY: Postal Regulatory Commission. language for GEPS 1. Id. at 2. ACTION: Notice. SUMMARY: In accordance with the While maintaining that the contract is substantially equivalent to the initial Paperwork Reduction Act of 1995 (Pub. SUMMARY: The Commission is noticing a GEPS 1 contract, the Postal Service L. 104–13, May 22, 1995), this notice recently-filed Postal Service Global announces that the U.S. Office of Expedited Package Service negotiated 1 Notice of United States Postal Service Filing of Personnel Management (OPM) service agreement. This action is Functionally Equivalent Global Expedited Package submitted to the Office of Management consistent with changes in a recent law Services 1 Negotiated Service Agreement, and Budget (OMB) a request for review governing postal operations. September 22, 2008 (Notice). 2 Docket No. CP2008–5, United States Postal of an expiring information collection. DATES: Comments are due October 2, This information collection, Service Notice of Filing Redacted Copy of 2008. Governors’ Decision No. 08–7, July 23, 2008. ‘‘Procedures for Submitting ADDRESSES: Submit comments 3 Docket No. CP2008–5, Order Concerning Global Compensation and Leave Claims’’ (OMB Expedited Package Services Contracts, June 27, Control No. 3206–0232; OPM Form electronically via the Commission’s 2008 at 7 (Order No. 86) (‘‘The Commission will 1673), is used to collect information Filing Online system at http:// verify whether or not any subsequent contract is in www.prc.gov. fact substantially equivalent. Contracts not having from current and former Federal civilian substantially the same terms and conditions as the employees who are submitting a claim FOR FURTHER INFORMATION CONTACT: GEPS 1 contract must be filed under 39 CFR part for compensation and/or leave. OPM Stephen L. Sharfman, General Counsel, 3020, subpart B.’’).

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notes that the contract may differ in SECURITIES AND EXCHANGE SECURITIES AND EXCHANGE minor respects; for example, prices may COMMISSION COMMISSION vary due to volume commitments, signing dates of the agreements, Sunshine Act Meeting Sunshine Act Meeting existence of previous agreements, and Notice is hereby given, pursuant to other case specific and negotiation Notice is hereby given, pursuant to the provisions of the Government in the the provisions of the Government in the related factors. Id. at 4–5. The Postal Sunshine Act, Public Law 94–409, that Service maintains, however, that Sunshine Act, Public Law 94–409, that the Securities and Exchange the Securities and Exchange ‘‘[i]ncidental differences to Commission will hold a Closed Meeting accommodate the respective mailer[] do Commission will hold an Open Meeting on Wednesday, October 1, 2008 at on Wednesday, September 24, 2008, at nothing to detract from the conclusion 4:30 p.m. that the[] agreement[] [is] ‘functionally 10 a.m., in the Auditorium, Room L– 002. Commissioners, Counsels to the equivalent in all pertinent respects.’ ’’ Commissioners, the Acting Secretary to The subject matter of the Open Id. at 5. the Commission, and certain staff The Postal Service asks that the Meeting will be: members who have an interest in the contract be added to the existing GEPS Item 1: The Commission will hear oral matter will attend the Closed Meeting. 1 product. Id. at 2 and 5. It further notes argument on an appeal by Gary M. The General Counsel of the that the contract is ‘‘set to expire one Kornman from an initial decision of an Commission, or his designee, has year after the Postal Service notifies the administrative law judge barring him certified that, in his opinion, one or customer that all necessary approvals from associating with any broker, more of the exemptions as set forth in and reviews of the agreement have been dealer, or investment adviser. The law 5 U.S.C. 552b(c)(8) and (9) and 17 CFR obtained, culminating with a favorable judge based her decision to impose 200.402(a)(8) and (9), permit conclusion on review by the associational bars on Kornman’s having consideration of the scheduled matter at Commission.’’ Id. at 2. been criminally convicted of making a the Closed Meeting. false statement to the Commission in Commissioner Casey, as duty officer, II. Notice of Filings violation of 18 U.S.C. 1001. Issues likely voted to consider the item listed for the to be considered include whether it is closed meeting in closed session, and The Commission establishes Docket in the public interest to bar Kornman No. CP2008–25 for review of this determined that no earlier notice thereof from association with any broker, was possible. contract. The public portions of these dealer, or investment adviser. filings can be accessed via the The subject matter of the Closed Commission’s Web site (http:// Item 2: The Commission will hear oral Meeting scheduled for Wednesday, www.prc.gov). argument on an appeal by Nature’s September 24, 2008, will be: Matters Sunshine Products, Inc. (‘‘Nature’s related to the financial markets. Interested persons may express views Sunshine’’) from an initial decision of At times, changes in Commission and offer comments on whether the an administrative law judge. The law priorities require alterations in the planned changes are consistent with the judge found that Nature’s Sunshine had scheduling of meeting items. For further policies of 39 U.S.C. 3632, 3633, or violated Section 13(a) of the Securities information and to ascertain what, if 3642. Comments are due no later than Exchange Act of 1934 and Exchange Act any, matters have been added, deleted October 2, 2008. Rules 13a–1 and 13a–13 by failing to file or postponed, please contact: The Commission appoints Paul L. any annual report on Form 10–K since The Office of the Secretary at (202) Harrington to serve as Public filing its Form 10–K for the year ended 551–5400. Representative in this docket. December 31, 2004, and by failing to file any quarterly report on Form 10–Q with Dated: September 24, 2008. III. Ordering Paragraphs financial statements that had been Florence E. Harmon, reviewed by a registered independent Acting Secretary. It is Ordered: public accounting firm since filing its [FR Doc. E8–22858 Filed 9–29–08; 8:45 am] 1. The Commission establishes Docket Form 10–Q for the quarter ended June BILLING CODE 8010–01–P No. CP2008–25 for consideration of the 30, 2005. Issues likely to be considered matters raised in this docket. include whether it is necessary or SECURITIES AND EXCHANGE 2. Comments on issues in these appropriate for the protection of COMMISSION proceedings are due no later than investors to revoke the registration of October 2, 2008. Nature’s Sunshine’s common stock. At times, changes in Commission [Release No. 34–58625; File No. SR–Amex– 3. The Commission appoints Paul L. 2008–51] Harrington as Public Representative to priorities require alterations in the represent the interests of the general scheduling of meeting items. Self-Regulatory Organizations; public in this proceeding. For further information and to American Stock Exchange LLC; Notice 4. The Secretary shall arrange for ascertain what, if any, matters have been of Filing of Proposed Rule Change as publication of this order in the Federal added, deleted or postponed, please Modified by Amendment Nos. 1 and 2 Thereto Related to Amendments to Register . contact: The Office of the Secretary at (202) 551–5400. Rule 991 (Communications to By the Commission. Customers) and Rule 921 (Opening of Dated: September 24, 2008. Steven W. Williams, Accounts) Florence E. Harmon, Secretary. Acting Secretary. September 23, 2008. [FR Doc. E8–22980 Filed 9–29–08; 8:45 am] [FR Doc. E8–22830 Filed 9–29–08; 8:45 am] Pursuant to Section 19(b)(1) of the BILLING CODE 7710–FW–P BILLING CODE 8010–01–P Securities Exchange Act of 1934 (the

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‘‘Exchange Act’’) 1 and Rule 19b–4 A. Self-Regulatory Organization’s furnished to any person who has not thereunder,2 notice is hereby given that Statement of the Purpose of, and the previously or contemporaneously on June 25, 2008, the American Stock Statutory Basis for, the Proposed Rule received the current ODD; Exchange LLC (the ‘‘Amex’’ or the Change • Rule 991(e)(ii), which defines the term ‘‘Educational Material;’’ 8 ‘‘Exchange’’) filed with the Securities 1. Purpose and Exchange Commission • Commentary.02A to Rule 991, (‘‘Commission’’) the proposed rule a. Rule 991 (Communications to which outlines what is permitted in an change as described in Items I, II, and Customers) ‘‘Advertisement;’’ 9 and • III below, which Items have been Commentary.03 to Rule 991, which On December 23, 2002, the 10 prepared by the Exchange. Amex filed Commission published final rules that concerns educational material. Amendment Nos. 1 and 2 to the exempt standardized options issued by ii. Re-designation of Rule 991(a) to proposed rule change on August 22, registered clearing agencies and traded Proposed Rule 991(d) and Related 2008, and September 5, 2008, on a registered national securities Amendments respectively.3 The Commission is exchange or registered national Amex Rule 991(a) currently provides publishing this notice to solicit securities association from the an outline of the ‘‘General Rule’’ for comments on the proposed rule change, Securities Act (other than the anti-fraud options communications. The Exchange as amended, from interested persons. provisions) and the registration proposes to re-designate paragraph (a) as requirements of the Exchange Act.5 I. Self-Regulatory Organization’s paragraph (d), and to incorporate Since the Securities Act and the rules Statement of the Terms of Substance of limitations on the use of options thereunder (other than the anti-fraud the Proposed Rule Change communications contained in current provisions) are no longer applicable to Commentary.01 to Rule 991 into The Exchange proposes to amend such standardized options, the Amex proposed Rule 991(d). In addition, Amex Rule 991 (‘‘Communications to proposes to remove elements of the proposed Rule 991(d)(iii) would amend Customers’’) to delete references to Securities Act that are embedded in Rule 991(a)(iii) by clarifying the types of certain provisions of the Securities Act Amex Rule 991. In particular, the cautionary statements and caveats that of 1933 (the ‘‘Securities Act’’) that no Exchange proposes to remove all are prohibited. As previously noted, the longer apply to standardized options 4 references to a ‘‘prospectus’’ from Rule Amex proposed to delete Rule issued by registered clearing agencies 991. Prospectuses are no longer required 991(a)(iv). and update and reorganize the rule for for standardized options, and The greater clarity. In addition, the proposal Options Clearing Corporation (‘‘OCC’’) iii. Proposed Amendments to Rule seeks to amend Amex Rule 921 has, in fact, ceased publication of a 991(b) (‘‘Opening of Account’’) in connection prospectus.6 In addition, the proposed Amex proposes to amend Rule 991(b) with the information member amendments would update and to include the types of communications organizations must obtain from reorganize Rule 991. For uniformity, the proposed to be added to the definition customers. The text of the proposed rule Financial Industry Regulatory of ‘‘Options Communications’’ in change is available at the Exchange, the Authority, Inc. and the Chicago Board proposed Rule 991(a). Proposed Rule Commission’s Public Reference Room Options Exchange, Inc. have filed 991(b)(ii) and (b)(iii) would also amend and http://www.amex.com. proposed rule amendments with the the current requirement to obtain Commission to implement similar rule advanced approval by a Registered II. Self-Regulatory Organization’s language and format changes.7 Options Principal (‘‘ROP’’) for most Statement of the Purpose of, and options communications by exempting Statutory Basis for, the Proposed Rule i. Deletion of Certain Provisions of Rule 991 certain options communications, Change defined as ‘‘Correspondence’’ and Amex Rule 991 contains a number of ‘‘Institutional Sales Material.’’ In its filing with the Commission, the references to a prospectus and other Exchange included statements Specifically, proposed Rule 991(b)(ii) Securities Act requirements. The would exempt Correspondence from the concerning the purpose of and basis for Exchange proposes to delete the the proposed rule change and discussed pre-approval requirement unless the following from Rule 991: Correspondence is distributed to 25 or any comments it received on the • Rule 991(a)(iv), which references more existing retail customers within proposed rule change. The text of these the Securities Act prospectus definition; any 30 calendar day period, and make statements may be examined at the • Rule 991(d), which incorporates any financial or investment places specified in Item IV below. The Securities Act principles in that it recommendation or otherwise promotes Exchange has prepared summaries, set prohibits written material concerning a product or service of the member. All forth in sections (A), (B), and (C) below, options (i.e., an offering) from being correspondence would be subject to the of the most significant aspects of such supervision and review requirements of statements. 5 See ‘‘Exemption for Standardized Options From Provisions of the Securities Act of 1933 and From Rule 922. Proposed Rule 991(b)(iii) the Registration Requirements of the Securities would exempt Institutional Sales 1 15 U.S.C. 78s(b)(1). Exchange Act of 1934; Final Rule,’’ Securities Act 2 Material from the pre-approval 17 CFR 240.19b–4. Release No. 8171 and Securities Exchange Act requirement if the material is 3 Amendment Nos. 1 and 2 modified certain Release No. 47082 (Dec. 23, 2002), 68 FR 188 (Jan. definitions in and made non-substantive corrections 2, 2003). to proposed Rule 991. 6 The options disclosure document (the ‘‘ODD’’) 8 This paragraph essentially incorporates 4 ‘‘Standardized Option’’ is defined in Rule 19b– prepared in accordance with Rule 9b–1 under the language of Rule 134a under the Securities Act. 1 under the Exchange Act to mean options contracts Exchange Act is not deemed to be a prospectus. 17 While this amendment would eliminate the trading on a registered national securities exchange, CFR § 230.135b. See, e.g., Securities Act Release No. separate educational material category, as discussed an automated quotation system of a registered 8049 (Dec. 21, 2001), 67 FR 228 (Jan. 2, 2002). below, the Exchange also proposes to revise the national securities association, or a foreign 7 See Exchange Act Release No. 57720 (Apr. 25, definition of Sales Literature to include educational exchange which relate to options classes the terms 2008) 73 FR 24332 (May 2, 2008) (SR–FINRA– material. of which are limited to specific expiration dates and 2008–13) and Exchange Act Release No. 58138 (Jul. 9 This paragraph essentially incorporates exercise prices, or such other securities as the 10, 2008), 73 FR 20886 (Jul. 16, 2008) (SR–CBOE– language of Rule 134 under the Securities Act. Commission man, by order, designate. 2007–30). 10 See note 7, supra.

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distributed to ‘‘qualified investors’’ as to include independently prepared relates to standards for Sales Literature defined in Section 3(a)(54) of the reprints and other communications that contains historical performance Exchange Act.11 between a member or member figures. The Exchange proposes to re- Pre-approval by a ROP would, organization and a customer. The designate current Commentary .04B as however, be required with respect to Exchange proposes to amend the proposed Commentary .02 to Rule 991 independently prepared reprints. In definitions of ‘‘Advertisement’’ and and current Commentary .04C as addition, proposed Rule 991(b)(iv) ‘‘Sales Literature’’; and define proposed Commentary .03 to Rule 991. would require that firms retain options ‘‘Correspondence,’’ ‘‘Institutional Sales Rule 991 currently requires that a communications in accordance with the Material,’’ ‘‘Public Appearances’’ and copy of the ODD precede or accompany recordkeeping requirements of Rule ‘‘Independently Prepared Reprints’’ to options related sales literature. The 17a–4 under the Exchange Act.12 The clarify the rule. In addition, as Exchange proposes to modify the ODD proposed rule would also require that previously noted, Amex proposes to delivery requirement applicable to sales firms retain other related documents in delete the definition of ‘‘Educational literature to provide that an ODD must the form and for the time periods Material.’’ precede or accompany any communication that conveys past or required for options communications by vi. Proposed Rule 991(e) Rule 17a–4. projected performance figures involving Proposed Rule 991(e) would set forth options or constitutes a iv. Proposed Amendments to Rule (i) standards for options recommendation pertaining to 991(c) communications that are not preceded options.13 Amex Rule 991(c) currently requires or accompanied by an ODD and (ii) A notice providing the name and members and member organizations to standards for options communications address of a person from whom the ODD obtain approval for every advertisement used prior to delivery of an ODD. These may be obtained would be required in and all educational material from the requirements generally clarify and sales literature that does not contain a Exchange. This requirement applies restate the requirements contained in recommendation of past or projected regardless of whether the options current Commentary .02 to Rule 991. performance figures. Because Amex is communications are used before or after vii. Related Commentaries proposing to merge educational material delivery of a current ODD. The into the sales literature category,14 this Exchange proposes to amend this Proposed Rule 991(e)(i)(B) would amendment would continue to allow provision to require approval by the require options communications to communications that are educational in Exchange only with respect to contain contact information for nature to be disseminated without being communications used prior to the obtaining a copy of the ODD. Proposed preceded or accompanied by a copy of delivery of a current ODD. The Commentary .01 to Rule 991 would the ODD. Exchange’s pre-approval requirement include the provisions found in current The Exchange proposes to re- for options communications used Commentary .02A to Rule 991 regarding designate current Commentary .04D to subsequent to the delivery of the ODD how this requirement may be satisfied. Rule 991 as proposed Commentary .04 would be eliminated because the ODD In addition, as noted above, the to Rule 991. The Exchange proposes to should help alert the customer to the provisions of current Commentary .01 to delete current Commentaries .04E, F characteristics and risks associated with Rule 991 regarding limitations on the and G to Rule 991. The Exchange trading in options and because Rule use of options communications would believes Commentaries .04E and F are 991(b) requires the ROP of a member be incorporated into proposed Rule unnecessary because worksheets are organization to pre-approve options 991(d). included in the definition of Sales As previously noted, the provisions of communications, subject to exceptions Literature. In addition, the Exchange current Commentary .02 to Rule 991 for ‘‘Correspondence’’ and ‘‘Institutional believes Commentary .04G is no longer that outline what is permitted in an Sales Material.’’ Rule 991(c) would also necessary because the Exchange is advertisement would be deleted, and be amended to include the types of proposing to clarify the recordkeeping the provisions relating to standards for communications added to the definition requirements applicable to options options communications used prior to of ‘‘Options Communications’’ in communications in proposed Rule delivery of the ODD would be proposed Rule 991(a). 991(b)(iv). incorporated into proposed Rule v. Re-designation of Rule 991(e) as 991(e)(ii). b. Rule 921 (Opening of Accounts) Proposed Rule 991(a) and Related Current Commentary .03 to Rule 991 The proposal would also amend Rule Amendments regarding educational materials also 921 in connection with the opening of Rule 991(e) currently defines the would be deleted, as noted above. options accounts. Currently, Current Commentary .04 to Rule 991 terms used in Rule 991. The Amex Commentary .01 to Rule 921 requires a sets forth the standards applicable to proposes to re-designate paragraph (e) as member organization to obtain certain Sales Literature. Current Commentary paragraph (a). The Exchange also information about its options customers .04A sets forth the requirement that proposes to amend the definition of in order to comply with the due Sales Literature shall state that ‘‘Options Communications’’ in proposed diligence requirement in opening a new supporting documentation for any Rule 991(a) to expand the types of account under Rule 921(c). In order to claims, comparisons, recommendations, communications governed by Rule 991 conform to the requirements of Rule statistics or other technical data will be 17a–3(a)(17) under the Exchange Act, supplied upon request. The Exchange 11 See 15 U.S.C. § 78c(a)(54). the proposed amendments would 12 17 CFR § 240.17a–4. More specifically, Rule proposes to re-designate current require that in addition to all the 17a–4(b)(4) requires that a broker-dealer retain Commentary .04A as proposed Rule essential information to determine ‘‘originals of all communications received and 991(d)(vii). suitability, a member organization must copies of all communications sent * * * including Current Commentary .04B to Rule 991 all communications which are subject to rules of a self-regulatory organization of which the member, relates to standards for Sales Literature 13 See proposed Rule 991(e)(i)(C) and proposed broker or dealer is a member regarding that contain projected performance Commentaries .02 and .03 to Rule 991. communications with the public.’’ figures. Current Commentary .04C 14 See proposed Rule 991(a)(ii).

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also obtain the customer’s name, Tax approve such proposed rule change, or For the Commission by the Division of Identification Number, address, and (B) institute proceedings to determine Trading and Markets, pursuant to delegated 17 telephone number. whether the proposed rule change authority. should be disapproved. Florence E. Harmon, 2. Statutory Basis Acting Secretary. The Exchange believes that the IV. Solicitation of Comments [FR Doc. E8–22962 Filed 9–29–08; 8:45 am] proposed rule changes are consistent BILLING CODE 8010–01–P with Section 6 of the Act,15 in general, Interested persons are invited to and further the objectives of Section submit written data, views, and 6(b)(5),16 in particular, in that they are arguments concerning the foregoing, SECURITIES AND EXCHANGE designed to prevent fraudulent and including whether the proposed rule COMMISSION manipulative acts and practices, to change is consistent with the Act. Comments may be submitted by any of [Release No. 34–58626; File No. SR–FINRA– promote just and equitable principles of 2008–046] trade, to foster cooperation and the following methods: coordination with persons engaged in Electronic Comments Self-Regulatory Organizations; facilitating transactions in securities, to Financial Industry Regulatory remove impediments to and perfect the • Use the Commission’s Internet Authority, Inc.; Notice of Filing of mechanisms of a free and open market comment form (http://www.sec.gov/ Proposed Rule Change, and and a national market system, and, in rules/sro.shtml); or Amendment No. 1 Thereto, To Amend general, to protect investors and the • Send an e-mail to rule- the By-Laws of FINRA Regulation To public interest, by providing the [email protected]. Please include File Realign the Representation of Industry investing public with options Number SR–Amex–2008–51 on the Members on the National Adjudicatory communications rules that are designed subject line. Council To Follow More Closely the to provide appropriate safeguards and Categories of Industry Representation greater clarity by promoting Paper Comments on the FINRA Board harmonization between the Amex and other SRO options communications • Send paper comments in triplicate September 23, 2008. rules and conforming Rule 921 to the to Secretary, Securities and Exchange Pursuant to Section 19(b)(1) of the requirements of Rule 17a–3(a)(17) under Commission, 100 F Street, NE., Securities Exchange Act of 1934 the Exchange Act. The Exchange also Washington, DC 20549–1090. (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 believes that the proposal is consistent notice is hereby given that on All submissions should refer to File September 8, 2008, Financial Industry with Section 6(b)(5) of the Exchange Act Number SR–Amex–2008–51. This file because the proposed amendments to Regulatory Authority, Inc. (‘‘FINRA,’’ number should be included on the Amex Rule 991 reflect amendments to f/k/a National Association of Securities subject line if e-mail is used. To help the the Securities Act that generally exempt Dealers, Inc. (‘‘NASD’’)) filed with the Commission process and review your standardized options, and will update Securities and Exchange Commission comments more efficiently, please use and reorganize the Rule. (‘‘SEC’’ or ‘‘Commission’’) the proposed only one method. The Commission will rule change as described in Items I, II, B. Self-Regulatory Organization’s post all comments on the Commission’s and III below, which Items have been Statement on Burden on Competition Internet Web site (http://www.sec.gov/ substantially prepared by FINRA. On The proposed rule change does not rules/sro.shtml). Copies of the September 17, 2008, FINRA filed impose any burden on competition that submission, all subsequent Amendment No. 1 to the proposed rule is not necessary or appropriate in amendments, all written statements change. The Commission is publishing furtherance of the purposes of the with respect to the proposed rule this notice to solicit comments on the Exchange Act. change that are filed with the proposed rule change, as amended, from Commission, and all written interested persons. C. Self-Regulatory Organization’s communications relating to the I. Self-Regulatory Organization’s Statement on Comments on the proposed rule change between the Statement of the Terms of Substance of Proposed Rule Change Received From Commission and any person, other than Members, Participants or Others the Proposed Rule Change those that may be withheld from the No written comments were solicited public in accordance with the FINRA is proposing to amend the By- or received with respect to the proposed provisions of 5 U.S.C. 552, will be Laws of FINRA’s regulatory subsidiary rule change. available for inspection and copying in (‘‘FINRA Regulation’’) to realign the representation of industry members on III. Date of Effectiveness of the the Commission’s Public Reference Section, 100 F Street, NE., Washington, the National Adjudicatory Council Proposed Rule Change and Timing for (‘‘NAC’’) to follow more closely the Commission Action DC 20549. Copies of such filing also will be available for inspection and copying industry representation on the FINRA Within 35 days of the date of at the principal office of the Amex. All Board of Governors (‘‘FINRA Board’’), to publication of this notice in the Federal comments received will be posted eliminate the Regional Nominating Register or within such longer period (i) without change; the Commission does Committees, to transfer such as the Commission may designate up to not edit personal identifying committees’ responsibilities for NAC 90 days of such date if it finds such information from submissions. You industry appointments to the FINRA longer period to be appropriate and should submit only information that Nominating Committee (‘‘Nominating publishes its reasons for so finding or Committee’’), and to change the name of you wish to make available publicly. All (ii) as to which the Exchange consents, ‘‘NASD Regulation’’ and ‘‘NASD’’ to the Commission will (A) by order submissions should refer to File Number SR–Amex–2008–51 and should 17 17 CFR 200.30–3(a)(12). 15 15 U.S.C. 78f(b). be submitted on or before October 21, 1 15 U.S.C. 78s(b)(1). 16 15 U.S.C. 78f(b)(5). 2008. 2 17 CFR 240.19b–4.

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‘‘FINRA Regulation’’ and ‘‘FINRA’’ certain industry member seats on the are first selected through Regional respectively. The text of the proposed NAC by using the Nominating Nominating Committees (through either rule change is available at FINRA, on its Committee and discontinuing the an uncontested or a contested Web site (http://www.finra.org), and at Regional Nominating Committees; and nomination process), then nominated by the Commission’s Public Reference adopt conforming changes to reflect the the Nominating Committee, and finally Room. corporate name change and similar appointed by the FINRA Regulation matters.4 Board. II. Self-Regulatory Organization’s Statement of the Purpose of, and The National Adjudicatory Council Discussion of Changes to the NAC Statutory Basis for, the Proposed Rule The NAC is appointed pursuant to the Election Process Change FINRA Regulation By-Laws to review all The proposed rule change would In its filing with the Commission, disciplinary decisions issued by Hearing amend Article I (Definitions), Article V FINRA included statements concerning Panels and presides over disciplinary (National Adjudicatory Council), and the purpose of and basis for the matters that have been appealed to or Article VI (National Adjudicatory proposed rule change and discussed any called for review by the NAC. The NAC Council Regional Nominations for comments it received on the proposed also reviews statutory disqualification Industry Members) of the FINRA rule change. The text of these statements matters and considers appeals of Regulation By-Laws to replace the may be examined at the places specified membership proceedings and current regionally based approach for in Item IV below. FINRA has prepared exemption requests.5 appointing industry representatives to summaries, set forth in sections A, B, Under current FINRA Regulation By- the NAC with a process that is based on and C below, of the most significant Law provisions, the NAC must consist firm size and is similar to the FINRA aspects of such statements. of no fewer than 12 and no more than Board’s approach.9 The NAC’s 14 members.6 The number of non- regionally based election process is a A. Self-Regulatory Organization’s industry members, including at least legacy NASD practice that no longer Statement of the Purpose of, and three public members, must equal or parallels the governance structure of the Statutory Basis for, the Proposed Rule exceed the number of industry FINRA Board. The proposed rule change Change members.7 Since 1999, each of five would replace the five regionally based 1. Purpose geographic regions, which had been industry members of the NAC with two Background on FINRA and Its established by the NASD Board of small firm, one mid-size firm, and two Regulatory Subsidiary Governors, has been represented on the large firm industry representatives. The NAC. Non-industry members of the make-up of the NAC under the proposed On July 30, 2007, NASD and the New NAC and two ‘‘at-large’’ industry rule change would follow more closely York Stock Exchange consolidated their members currently are nominated to the current make-up of the FINRA member firm regulation operations into serve on the NAC by the Nominating Board. a combined organization, FINRA. As Committee and then appointed by the The restructured NAC would part of the consolidation, the SEC FINRA Regulation Board.8 The five therefore consist of 14 members, approved amendments to the NASD By- industry members of the NAC who are including seven industry members, two Laws to implement governance and drawn from the five geographic regions of whom are ‘‘at large’’ and five of related changes.3 The approved changes whom are designated specifically as included a FINRA Board governance 4 The proposed rule change would revise, delete, representatives of large firms, mid-size structure that balanced public and and/or renumber various provisions of the FINRA firms, and small firms, and seven non- industry representation and designated Regulation By-Laws. Renumbered sections are referred to herein as ‘‘proposed FINRA Regulation industry members, three of whom are seven governor seats to represent By-Laws.’’ All other sections (that is, sections for public.10 The tenure of NAC members is member firms of various sizes based on which new numbering did not result from the generally three years and the terms of the criteria of firm size. proposed revisions) are referred to as ‘‘current the NAC members are staggered. The FINRA Regulation (formerly known as FINRA Regulation By-Laws.’’ 5 proposal would not disrupt the process NASD Regulation) is a subsidiary of See current FINRA Regulation By-Laws, Article V, Section 5.1 (Appointment and Authority). FINRA that operates according to the 6 The 2008 NAC consists of 14 members, and the 9 The FINRA Board consists of eleven Public Plan of Allocation and Delegation of NAC has had no fewer than 14 members Governors (who are appointed), ten Industry Functions by NASD to Subsidiaries, as consistently for many years. To reflect past Governors (seven of whom are elected by industry amended, which NASD adopted first in practices, the proposed rule change would members), the current Chief Executive Officer eliminate the 12 to 14 member range currently (‘‘CEO’’) of NYSE Regulation, and the current CEO 1996 when it formed NASD Regulation. indicated in the FINRA Regulation By-Laws and of FINRA. The ten Industry Governors include: (a) FINRA Regulation’s By-Laws were not state instead that the NAC shall consist of 14 Three elected Governors who are registered with amended at the time of the members, divided equally between industry and member firms that employ 500 or more registered consolidation, other than in a few non-industry. The proposal would eliminate the persons (Large Firm Governors); (b) one elected concept of non-industry members exceeding Governor who is registered with a member firm that sections where those By-Laws conflicted industry members and state simply that non- employs at least 151 and no more than 499 with the new FINRA By-Laws. industry NAC members will equal industry NAC registered persons (Mid-Size Firm Governor); (c) The proposed rule change would members. Given that the population of the NAC three elected Governors who are registered with modify the FINRA Regulation By-Laws will be 14, its balanced nature can be achieved with member firms that employ at least one and no more an equal industry/non-industry composition. than 150 registered persons (Small Firm Governors); to: Restructure the industry 7 See current FINRA Regulation By-Laws, Article (d) one appointed Governor who is associated with representation on the NAC to parallel V, Section 5.2 (Number of Members and a floor member of the New York Stock Exchange; the firm-size criteria for industry Qualifications). (e) one appointed Governor who is associated with representation on the FINRA Board; 8 Consistent with Article V of the FINRA an independent contractor financial planning Regulation By-Laws, the current 14-member NAC member firm or an insurance company affiliate; and modify the nomination process for includes seven industry and seven non-industry (f) one appointed Governor who is associated with members. Five of the industry NAC members an affiliate of an investment company. See FINRA 3 See Securities Exchange Act Release No. 56145 represent the five geographic regions. The By-Laws, Article VII (Board of Governors). (July 26, 2007), 72 FR 42169 (August 1, 2007), as remaining two industry seats are ‘‘at-large’’ seats, 10 A public member of the NAC has no material amended by Securities Exchange Act Release No. which NASD historically used and FINRA currently business relationship with a broker or dealer or a 56145A (May 30, 2008), 73 FR 32377 (June 6, 2008) uses to add balance to the types of firms being self-regulatory organization registered under the (File No. SR–NASD–2007–023). represented on the NAC. Act.

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of approximately one-third of the NAC regional NAC seat.12 In the event of a information from candidates as is members completing their service in a contested election, FINRA members reasonably necessary to serve as the particular year and being replaced with would have an opportunity to vote for basis for such a determination.17 newly appointed NAC members. The a NAC candidate based on firm size.13 The proposed rule change would proposal would result in a Small Firm Specifically, small, mid-size, or large modify slightly the provision that and a Large Firm NAC Member joining firms would vote for NAC candidates restricts NAC members and certain the NAC near the beginning of 2009; a only if the contested election was for a committees from communicating in an Mid-Sized Firm NAC Member joining in NAC seat designated for a firm of official capacity in support of a 2010; and a Small Firm and Large Firm corresponding size. candidate in a contested election. The NAC Member joining in 2011. The The proposed rule change would current rules, which permit individuals proposed selection process would allow ensure that the winner of a contested who are Directors or NAC or other for the service of NAC members with election serves on the NAC. While all committee members to communicate knowledge, impartiality, and judicial NAC members would continue to be their views regarding a candidate in an temperament, while maintaining the recommended initially by the individual capacity, would remain the same level of indirect representation of Nominating Committee and appointed same. The modification would specify FINRA’s membership. by the FINRA Board,14 the candidate the narrow circumstances under which In conjunction with eliminating the who receives the most votes in any the Nominating Committee may support regionally based criteria for identifying contested election for a Small, Mid-Size, its candidate by sending a maximum of industry NAC members, the proposed or Large Firm NAC Member seat would two mailings in support of its rule change also would simplify the be required under the FINRA Regulation nominee.18 The proposal would clarify 15 NAC appointment process for industry By-Laws to be appointed to the NAC. that this limited support is available representatives and follow more closely The current By-Law section that during contested NAC elections by the procedures for electing industry discusses the procedure in the event referring to support allowed ‘‘under members of the FINRA Board. The that the Regional Nominating these By-Laws,’’ which includes the process proposed would eliminate the Committee’s nominee is rejected by the support allowed under Article IV, five Regional Nominating Committees National Nominating Committee would Section 4.16.19 and have the Nominating Committee accordingly be deleted. The proposal The proposed rule change would perform their functions instead. Rather would not change the NAC selection designate the Secretary of FINRA, than relying on Regional Nominating process if no additional candidates instead of the FINRA Regulation reach the threshold to qualify for a Committees to first identify possible Secretary, as the person who would contested election. As in the past when industry candidates before submission send notice to FINRA members there are no additional candidates, the of the candidates to the Nominating announcing a contested NAC election; industry NAC members selected by the Committee and the FINRA Regulation assist in preparing ballots; prepare a list Nominating Committee would not have Board, the Nominating Committee of FINRA members eligible to vote; a contested election and would be would identify and solicit candidates arrange for the location for counting of recommended for appointment to the for all NAC seats, including the five 16 ballots by an independent agent; resolve NAC. ballots that were set aside, if necessary; industry-member positions that are To verify that a NAC nominee or 11 extend a time period regarding elections based on firm size. The Nominating candidate would satisfy the definition of for good cause; and similar duties.20 The Committee would be free to consult an Industry, Small Firm, Mid-Sized proposal designates the FINRA with or receive recommendations for Firm, Large Firm, Non-Industry, or Secretary because this office fulfills the industry NAC members from other Public Member of the NAC, the same role when FINRA holds elections FINRA committees, such as the District proposed rule change would authorize for the Board of Governors. Nominating Committees, before the FINRA Secretary to collect communicating its nominations to the As a result of the NAC’s restructuring, FINRA Board. 12 Compare current FINRA Regulation By-Laws, FINRA would continue to promote fair The proposed rule change would Article VI, Section 6.15 (Requirement for Petition representation of its members because continue the current process of allowing Supporting Additional Candidate) with proposed seven of the NAC seats will be drawn individuals who seek to serve on the FINRA Regulation By-Laws, Article VI, Section 6.2 from members of the industry and the (Designation of Additional Candidates). industry candidates for five of those NAC but were not nominated, known as 13 See proposed FINRA Regulation By-Laws, additional candidates, to gather Article VI, Section 6.3 (List of FINRA Members seats will be announced to the petitions in support of their candidacy Eligible to Vote) and Article VI, Section 6.7 membership and are subject to a and potentially compete in a contested (Ballots). potential election by member firms of a 14 The seven non-industry members and two at- similar size. election. Additional candidates would large industry members would continue to follow petition to be considered as Small, Mid- the nomination and Board appointment process Size, or Large Firm NAC Members based currently employed for non-industry and at-large 17 See proposed FINRA Regulation By-Laws, on the size of the firm with which they industry NAC members. Article V, Section 5.4 (Nomination Process). 18 are registered. 15 See proposed FINRA Regulation By-Laws, See proposed FINRA Regulation By-Laws, Article V, Section 5.3 (Appointments) and 5.5 Article IV, Section 4.16(b) (Communication of Under the proposal, additional (Rejection of Nominating Committee Nominee). Views Regarding Contested Election or candidates would be able to qualify for 16 The proposed FINRA Regulation By-Laws Nomination). Section 4.16(b) would also mirror the a contested election by gathering retain the possibility that the Nominating language of the FINRA By-Law provision that allows, in contested elections, the appropriate petitions from three percent of the firms Committee could propose two or more candidates for a single open small, mid-size, or large firm NAC FINRA committee to communicate a responsive in their size category, which is lower seat. See proposed FINRA Regulation By-Laws, message in reply to an additional candidate’s than the ten percent requirement Article VI, Section 6.5 (Notice of Contested communication. See FINRA By-Laws, Article VII, additional candidates currently need to Nomination). In such a case, there would be a Section 11(b) (Communication of Views). 19 gather when they seek to qualify for a contested election. The proposed rule change See proposed FINRA Regulation By-Laws, would clarify that only when the Nominating Article VI, Section 6.6 (Administrative Support). Committee nominates two or more candidates for 20 See proposed FINRA Regulation By-Laws, 11 See proposed FINRA Regulation By-Laws, the same open seat would the Nominating Article VI, Sections 6.5, 6.7, 6.8, 6.10, 6.11, 6.13, Article V, Section 5.3 (Appointments). Committee trigger a contested election. and 6.14.

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In addition, the rule change would FINRA Board of Governors was definition of Pubic Director or Public indicate in proposed Article V, Section previously eliminated in 2007. Member.25 5.10 (Filling of Vacancies) that the NAC Accordingly, the NAC Chair no longer The proposed rule change would may continue to function while FINRA automatically has the prerequisite reflect that FINRA Regulation’s fills a vacancy on the NAC. The requirement to be appointed to the Delaware registered agent is Corporate proposal also would incorporate the FINRA Regulation Board.23 Creations Network Inc. concept into Section 5.10 from proposed The effective date of the proposed Section 5.9 (Disqualification), which Conforming Changes Relating to the New FINRA Name rule change will be the date of specifies that a vacancy on the NAC Commission approval. lasting six months or less will not cause The proposed rule change would a violation of the compositional make certain non-substantive changes to 2. Statutory Basis requirements of current Article V, several articles of the FINRA Regulation FINRA believes that the proposed rule Section 5.2 (Number of Members and By-Laws as follows: • change is consistent with the provisions Qualifications). ‘‘The NASD’’ or ‘‘NASD’’ is of Section 15A(b)(6) of the Act,26 which The proposed rule change would replaced with ‘‘FINRA’’ or ‘‘the requires, among other things, that amend the FINRA Regulation By-Law Corporation’’; FINRA rules must be designed to provisions regarding resignation, • ‘‘NASD Regulation’’ is changed to prevent fraudulent and manipulative removal, appointment, and ‘‘FINRA Regulation’’; acts and practices, to promote just and disqualification of NAC members and • ‘‘the Rules of the Association’’ is equitable principles of trade, and, in the NAC’s authority to act on FINRA’s replaced with ‘‘the Rules of the general, to protect investors and the behalf by designating the FINRA Board Corporation;’’ and public interest; and Section 15A(b)(4) of as the body authorized to oversee the • ‘‘National Nominating Committee’’ the Act,27 which requires that FINRA NAC.21 The FINRA Board has long had is replaced with ‘‘Nominating rules are designed to assure a fair explicit authority under Articles XII and Committee.’’ representation of FINRA’s members in XIII of its By-Laws to establish The proposed rule change would the administration of its affairs. The procedures for disciplinary proceedings modify the term ‘‘Industry Member’’ in composition of the FINRA Board has and to impose sanctions in certain the definitional section of FINRA previously been found to meet the circumstances, and has consistently Regulation’s By-Laws, Article I, by statutory requirement, and FINRA relied on the NAC to render judgment limiting the look-back test that believes that the proposed rule change on disciplinary matters, including characterizes NAC or committee will align the representation of industry imposing sanctions. The proposal members as industry if they have served members on the NAC to follow more would reinforce these roles by as an officer, director, or employee of a closely the industry representation on simplifying the FINRA Board’s broker or dealer, among other reasons, the FINRA Board. relationship with the NAC and within the past twelve months. The establishing directly with the FINRA current provision uses a three year look- B. Self-Regulatory Organization’s Board the authority to remove all NAC back test. This proposed change would Statement on Burden on Competition members (for refusal, failure, neglect, or make the definition of ‘‘Industry FINRA does not believe that the inability to discharge duties), accept Member’’ for NAC and other committee proposed rule change will result in any their resignations, appoint them, and members consistent with the ‘‘Industry burden on competition that is not declare them disqualified. Moreover, the Governor’’ and ‘‘Industry committee necessary or appropriate in furtherance FINRA Board’s direct authority over member’’ definitions in the FINRA By- of the purposes of the Act. resignation, removal, appointment, and Laws.24 disqualification would logically extend The proposal would also add the term C. Self-Regulatory Organization’s the FINRA Board’s existing authority to ‘‘independent director’’ to the portion of Statement on Comments on the review the substance of the NAC’s the definition of ‘‘Industry Member’’ Proposed Rule Change Received From appellate decisions, which exists that excludes outside directors of a Members, Participants or Others through the FINRA Board’s broker or dealer. Independent director is Written comments were neither discretionary power to call a case for synonymous with outside director, but solicited nor received. review by the FINRA Board.22 FINRA would be added to the exclusionary believes that the proposed rule change clause to harmonize the FINRA III. Date of Effectiveness of the will benefit the appellate portion of the Regulation By-Laws with the FINRA By- Proposed Rule Change and Timing for disciplinary process by extending the Laws’ use of the term ‘‘independent Commission Action FINRA Board’s oversight of the NAC’s director’’ when defining an Industry Within 35 days of the date of members. Governor. In addition, the definition of The proposed rule change would publication of this notice in the Federal ‘‘Public Director’’ and ‘‘Public Register or within such longer period (i) amend current Article V, Section 5.2 of Member,’’ which refers to NAC or the FINRA Regulation By-Laws (Number as the Commission may designate up to committee members, would be modified 90 days of such date if it finds such of Members and Qualifications) to to clarify that, for example, a Public eliminate the reference that the Chair of longer period to be appropriate and Director’s service on FINRA publishes its reason for so finding or (ii) the NAC shall automatically serve as a Regulation’s Board or a Public Member’s Director of the FINRA Regulation Board as to which FINRA consents, the service on the NAC does not disqualify Commission will: for a one-year term. As a result of the that person from satisfying the NASD and NYSE consolidation, the A. By order approve such proposed rule change; or NAC Chair’s automatic service on the 23 Additional changes to the FINRA Regulation By-Laws regarding the FINRA Regulation Board and 21 See current FINRA Regulation By-Laws, Article capital stock will be proposed by FINRA in a 25 See proposed FINRA Regulation By-Laws, V, Sections 5.1 (Appointment and Authority), and related proposed rule change that FINRA Article I(hh) and (ii). proposed Sections 5.7–5.9. anticipates filing in the near future. 26 15 U.S.C. 78o–3(b)(6). 22 See Rule 9351. 24 See FINRA By-Laws, Article I(t). 27 15 U.S.C. 78o–3(b)(4).

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B. Institute proceedings to determine For the Commission, by the Division of 1–20 Users ...... $20,000 (not to exceed whether the proposed rule change Trading and Markets, pursuant to delegated $200,000 for access to 28 should be disapproved. authority. all PORTAL historical Florence E. Harmon, data files from 1990 to IV. Solicitation of Comments Acting Secretary. 2007). [FR Doc. E8–22927 Filed 9–29–08; 8:45 am] 21 to 100 Users $50,000 (not to exceed Interested persons are invited to $500,000 for access to submit written data, views, and BILLING CODE 8010–01–P all PORTAL historical arguments concerning the foregoing, data files from 1990 to including whether the proposed rule 2007). SECURITIES AND EXCHANGE 101+ Users ...... $100,000 (not to exceed change is consistent with the Act. COMMISSION Comments may be submitted by any of $1,000,000 for access to all PORTAL histor- the following methods: [Release No. 34–58622; File No. SR– ical data files from Electronic Comments NASDAQ–2008–072] 1990 to 2007). * * * * * • Use the Commission’s Internet Self-Regulatory Organizations; The comment form (http://www.sec.gov/ NASDAQ Stock Market LLC; Notice of II. Self-Regulatory Organization’s rules/sro.shtml); or Filing of Proposed Rule Change To Statement of the Purpose of, and • Establish a PORTAL Reference Statutory Basis for, the Proposed Rule Send an e-mail to rule- Change [email protected]. Please include File Database and Related Fees In its filing with the Commission, Number SR–FINRA–2008–046 on the September 23, 2008. subject line. Nasdaq included statements concerning Pursuant to Section 19(b)(1) of the the purpose of and basis for the Paper Comments Securities Exchange Act of 1934 proposed rule change and discussed any (‘‘Act’’),1 and Rule 19b–4 thereunder,2 comments it received on the proposed • Send paper comments in triplicate notice is hereby given that on rule change. The text of these statements to Secretary, Securities and Exchange September 16, 2008, the NASDAQ Stock may be examined at the places specified Commission, 100 F Street, NE., Market LLC (‘‘Nasdaq’’) filed with the in Item IV below. Nasdaq has prepared Washington, DC 20549–1090. Securities and Exchange Commission summaries, set forth in Sections A, B, (‘‘Commission’’) the proposed rule All submissions should refer to File and C below, of the most significant change as described in Items I, II, and Number SR–FINRA–2008–046. This file aspects of such statements. III below, which Items have been number should be included on the prepared by Nasdaq. The Commission is A. Self-Regulatory Organization’s subject line if e-mail is used. To help the publishing this notice to solicit Statement of the Purpose of, and Commission process and review your comments on the proposed rule change Statutory Basis for, the Proposed Rule comments more efficiently, please use from interested persons. Change only one method. The Commission will 1. Purpose post all comments on the Commission’s I. Self-Regulatory Organization’s Internet Web site (http://www.sec.gov/ Statement of the Terms of Substance of Background rules/sro.shtml). Copies of the the Proposed Rule Change The National Association of Securities submission, all subsequent Nasdaq proposes to establish a Dealers, Inc. (‘‘NASD’’) created the 4 amendments, all written statements PORTAL Reference Database. Nasdaq PORTAL Market in 1990, with respect to the proposed rule will make the proposed rule change simultaneously with the SEC’s adoption 5 change that are filed with the effective immediately upon approval. of Rule 144A, to be a new trading system for the purpose of quoting, Commission, and all written The text of the proposed rule change trading, and reporting trades in communications relating to the is below. Proposed new language is securities deemed eligible for resale by proposed rule change between the italicized.3 Commission and any person, other than Qualified Institutional Buyers under * * * * * those that may be withheld from the Rule 144A. Rule 144A provides an public in accordance with the 7050. PORTAL Reference Database exemption from registration under 6 provisions of 5 U.S.C. 552, will be Section 5 of the Securities Act for The following charges shall apply to available for inspection and copying in resales of privately placed securities to access to the PORTAL Reference the Commission’s Public Reference investors that meet the eligibility Database: Room, 100 F Street, NE., Washington, requirements of being a qualified DC 20549, on official business days (1) For PORTAL data for 2008 and institutional buyer (‘‘QIB’’) under Rule 144A(a)(1),7 i.e., institutional investors between the hours of 10 a.m. and 3 p.m. future years, the annual fee is: that in the aggregate own or invest on Copies of the filing also will be available 1–20 Users ...... $20,000 a discretionary basis at least $100 for inspection and copying at the 21 to 100 Users ...... $50,000 101+ Users ...... $100,000 million in securities and broker/dealers principal office of FINRA. All comments that in the aggregate own or invest on (2) For PORTAL data for 1990 to 2007, received will be posted without change; a discretionary basis at least $10 million the Commission does not edit personal the fee for each year of reference data in securities. The PORTAL Market did identifying information from shall be: submissions. You should submit only 4 Securities Exchange Act Release No. 27956 information that you wish to make 28 17 CFR 200.30–3(a)(12). (April 27, 1990), 55 FR 18781 (May 4, 1990) (the available publicly. All submissions 1 15 U.S.C. 78s(b)(1). ‘‘original PORTAL rule filing’’). should refer to File Number SR–FINRA– 2 17 CFR 240.19b–4. 5 Securities Act Release No. 6862 (April 23, 1990), 3 55 FR 17933 (April 30, 1990). 2008–046 and should be submitted on Changes are marked to the rule text that appears in the electronic Nasdaq Manual found at http:// 6 17 [sic] U.S.C. 77e. or before October 21, 2008. nasdaq.complinet.com. 7 17 CFR 230.144A(a)(1).

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not develop as anticipated.8 For many tiered based on the number of users III. Date of Effectiveness of the years, the sole function of the NASD authorized for access and the number of Proposed Rule Change and Timing for related to the PORTAL market was to the years for which access is desired. Commission Action review whether an issue of privately There will be no pro-rating of these Within 35 days of the date of placed securities met the eligibility annual fees and all parties will pay a publication of this notice in the Federal requirements of Rule 144A, thereby full year’s fee regardless of when they Register or within such longer period (i) qualifying the securities for DTC book- elect to seek access to the database. The as the Commission may designate up to entry services. total cost of access to the full database 90 days of such date if it finds such The staff of Nasdaq has historically will, however, be capped based on the longer period to be appropriate and had responsibility for review of number of users at a particular firm. publishes its reasons for so finding or PORTAL applications to determine the Nasdaq believes that this pricing (ii) as to which the self-regulatory eligibility of securities and, originally, structure will allow users to better align PORTAL participants (including broker/ organization consents, the Commission and control their costs of access with will: dealers and investors). Upon the their data usage. separation of Nasdaq from the NASD A. By order approve such proposed Nasdaq believes that PORTAL and the approval of Nasdaq as a rule change, or reference database will materially registered national securities exchange B. Institute proceedings to determine under Section 6 of the Act, the review improve the availability of historical whether the proposed rule change functions for PORTAL market eligibility information about issuances of should be disapproved. restricted equity and debt and provide were retained by Nasdaq and the IV. Solicitation of Comments PORTAL Market Rules in the NASD a more reliable background upon which Interested persons are invited to Rule 5300 Series became the Nasdaq market participants can make submit written data, views, and Rule 6500 Series.9 The NASD investment decisions regarding such arguments concerning the foregoing, continued, however, to regulate trading securities. including whether the proposed rule reporting for PORTAL-designated 2. Statutory Basis securities. change is consistent with the Act. Since 1990, Nasdaq has designated Nasdaq believes that the proposed Comments may be submitted by any of over 26,000 equity and debt securities as rule change is consistent with the the following methods: being PORTAL-eligible. This provisions of Section 6 of the Act,10 in Electronic Comments designation process includes the general, and with Section 6(b)(4) of the • Use the Commission’s Internet submission and review of offering Act,11 in particular, in that it provides comment form (http://www.sec.gov/ documents and memorandum related to for the equitable allocation of reasonable rules/sro.shtml); or the restricted nature of the security and dues, fees and other charges among • Send an e-mail to rule- the completion of a PORTAL market members and issuers and other persons [email protected]. Please include File application form. using any facility or system which Number SR–NASDAQ–2008–072 on the Nasdaq operates or controls. Nasdaq PORTAL Reference Database subject line. notes that creation of the PORTAL As part of Nasdaq’s continuing efforts reference database required the Paper Comments to enhance the transparency and retrieval, organization, and review of • efficiency of trading in Rule 144A Send paper comments in triplicate hundreds of thousands of pages of hard- to Secretary, Securities and Exchange issues, Nasdaq has created and intends copy documents as well as the to make publicly available, for a fee, a Commission, Station Place, 100 F Street, conversion of retrieved information into NE., Washington, DC 20549–1090. consolidated electronic reference electronic form, and its subsequent database of information culled from importation into the database itself. In All submissions should refer to File PORTAL offering documents and addition, the database also required Number SR–NASDAQ–2008–072. This applications submitted to Nasdaq since programming an information entry and file number should be included on the 1990. The database is fully electronic retrieval protocol. On an ongoing basis, subject line if e-mail is used. To help the and allows users to determine, in Nasdaq will also incur hardware and Commission process and review your addition to other information, a software costs for the maintenance and comments more efficiently, please use PORTAL issue’s name and offering storage of PORTAL reference data. only one method. The Commission will description, CUSIP, country of post all comments on the Commission’s incorporation, security class, maturity B. Self-Regulatory Organization’s Internet Web site (http://www.sec.gov/ class and date, currency denomination, Statement on Burden on Competition rules/sro.shtml). Copies of the applicable interest and credit rating, submission, all subsequent convertibility and call provisions, total Nasdaq does not believe that the amendments, all written statements number of shares offered, and date of proposed rule change will result in any with respect to the proposed rule PORTAL designation. As new issues burden on competition that is not change that are filed with the seek PORTAL designation, they too will necessary or appropriate in furtherance Commission, and all written be added to the database. Access to the of the purposes of the Act, as amended. communications relating to the database will open to all market C. Self-Regulatory Organization’s proposed rule change between the participants. Statement on Comments on the Commission and any person, other than As set forth in the proposed rule text, Proposed Rule Change Received from those that may be withheld from the pricing for access to the database will be Members, Participants, or Others public in accordance with the provisions of 5 U.S.C. 552, will be 8 For more information related to the background Written comments were neither available for inspection and copying in of The PORTAL Market, see Securities Exchange solicited nor received. the Commission’s Public Reference Act Release No. 55669 (April 25, 2007); 72 FR 23874 (May 1, 2007). Room on official business days between 9 Securities Exchange Act Release No. 53128 (Jan. 10 15 U.S.C. 78f. the hours of 10 a.m. and 3 p.m. Copies 13, 2006); 71 FR 3550 (Jan. 23, 2006). 11 15 U.S.C. 78f(b)(4). of such filing also will be available for

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inspection and copying at the principal Primary Counties: U.S. Small Business Administration, office of Nasdaq. All comments received Ashley, Bradley, Calhoun, Chicot, 409 3rd Street, SW., Suite 6050, will be posted without change; the Clark, Cleveland, Conway, Dallas, Washington, DC 20416. Commission does not edit personal Drew, Garland, Grant, Hot Spring, SUPPLEMENTARY INFORMATION: Notice is identifying information from Lincoln, Montgomery, Perry, hereby given that as a result of the submissions. You should submit only Prairie, Saline, Van Buren. President’s major disaster declaration on information that you wish to make Contiguous Counties (Economic Injury 09/23/2008, applications for disaster available publicly. Loans Only): loans may be filed at the address listed All submissions should refer to File Arkansas: Arkansas, Cleburne, Desha, above or other locally announced Number SR–NASDAQ–2008–072 and Faulkner, Howard, Jefferson, locations. should be submitted on or before Nevada, Ouachita, Pike, Polk, Pope, The following areas have been October 21, 2008. Pulaski, Scott, Searcy, Stone, determined to be adversely affected by For the Commission, by the Division of Union, Yell. the disaster: Trading and Markets, pursuant to delegated Louisiana: East Carroll, Morehouse, Primary Counties (Physical Damage and authority.12 Union, West Carroll. Economic Injury Loans): Florence E. Harmon, Mississippi: Bolivar, Issaquena, La Porte, Lake, Porter. Acting Secretary. Washington. Contiguous Counties (Economic Injury [FR Doc. E8–22859 Filed 9–29–08; 8:45 am] The Interest Rates are: Loans Only): BILLING CODE 8010–01–P Indiana: Jasper, Newton, St Joseph, Percent Starke. Illinois: Cook, Kankakee, Will. Other (Including Non-Profit Orga- Michigan: Berrien. SMALL BUSINESS ADMINISTRATION nizations) With Credit Available The Interest Rates are: [Disaster Declaration #11448] Elsewhere ...... 5.250 Businesses And Non-Profit Orga- Percent Arkansas Disaster #AR–00023 nizations Without Credit Avail- able Elsewhere ...... 4.000 AGENCY: U.S. Small Business For Physical Damage: Administration. Homeowners With Credit Avail- The number assigned to this disaster able Elsewhere ...... 5.750 ACTION: Notice. for physical damage and economic Homeowners Without Credit injury is 11448. Available Elsewhere ...... 2.875 SUMMARY: This is a Notice of the Businesses With Credit Avail- Presidential declaration of a major (Catalog of Federal Domestic Assistance Numbers 59002 and 59008) able Elsewhere ...... 8.000 disaster for Public Assistance Only for Other (Including Non-Profit Or- the State of Arkansas (FEMA–1793–DR), Herbert L. Mitchell, ganizations) With Credit dated 09/18/2008. Associate Administrator for Disaster Available Elsewhere ...... 5.250 Incident: Severe storms and flooding Assistance. Businesses and Non-Profit Or- associated with Hurricane Gustav. [FR Doc. E8–22902 Filed 9–29–08; 8:45 am] ganizations Without Credit Available Elsewhere ...... 4.000 Incident Period: 09/02/2008 through BILLING CODE 8025–01–P 09/08/2008. For Economic Injury: Effective Date: 09/18/2008. Businesses & Small Agricultural Physical Loan Application Deadline Cooperatives Without Credit SMALL BUSINESS ADMINISTRATION Available Elsewhere ...... 4.000 Date: 11/17/2008. Economic Injury (EIDL) Loan [Disaster Declaration #11449 and #11450] The number assigned to this disaster Application Deadline Date: 06/18/2009. Indiana Disaster #IN–00026 for physical damage is 114496 and for ADDRESSES: Submit completed loan economic injury is 114500. applications to: U.S. Small Business AGENCY: U.S. Small Business Administration, Processing and Administration. (Catalog of Federal Domestic Assistance Numbers 59002 and 59008) Disbursement Center, 14925 Kingsport ACTION: Notice. Road, Fort Worth, TX 76155. Herbert L. Mitchell, FOR FURTHER INFORMATION CONTACT: A. SUMMARY: This is a Notice of the Associate Administrator for Disaster Escobar, Office of Disaster Assistance, Presidential declaration of a major Assistance. U.S. Small Business Administration, disaster for the State of Indiana (FEMA– [FR Doc. E8–22901 Filed 9–29–08; 8:45 am] 1795–DR), dated 09/23/2008. 409 3rd Street, SW., Suite 6050, BILLING CODE 8025–01–P Washington, DC 20416 Incident: Severe storms and flooding. Incident Period: 09/12/2008 and SUPPLEMENTARY INFORMATION: Notice is continuing. hereby given that as a result of the DEPARTMENT OF STATE Effective Date: 09/23/2008. President’s major disaster declaration on Physical Loan Application Deadline [Public Notice: 6380] 09/18/2008, Private Non-Profit Date: 11/24/2008. organizations that provide essential Economic Injury (EIDL) Loan 60-Day Notice of Proposed Information services of governmental nature may file Application Deadline Date: 06/23/2009. Collection: Department of State disaster loan applications at the address ADDRESSES: Submit completed loan Acquisition Regulation (DOSAR), OMB listed above or other locally announced Control Number 1405–0050 locations. applications to: U.S. Small Business Administration, Processing and The following areas have been ACTION: Notice of request for public Disbursement Center, 14925 Kingsport determined to be adversely affected by comments. the disaster: Road, Fort Worth, TX 76155. FOR FURTHER INFORMATION CONTACT: A. SUMMARY: The Department of State is 12 17 CFR 200.30–3(a)(12). Escobar, Office of Disaster Assistance, seeking Office of Management and

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Budget (OMB) approval for the SUPPLEMENTARY INFORMATION: We are implements sections 201(a)(3), 201(e), information collection described below. soliciting public comments to permit 203(c) and 204(a)(1)(I) of the The purpose of this notice is to allow 60 the Department to: Immigration and Nationality Act, as days for public comment in the Federal • Evaluate whether the proposed amended (8 U.S.C. 1151, 1153, and Register preceding submission to OMB. information collection is necessary for 1154(a)(1)(I)). We are conducting this process in the proper performance of our Instructions for the 2010 Diversity accordance with the Paperwork functions. Immigrant Visa Program (DV–2010) Reduction Act of 1995. • Evaluate the accuracy of our • Title of Information Collection: estimate of the burden of the proposed The congressionally mandated Department of State Acquisition collection, including the validity of the Diversity Immigrant Visa Program is Regulation (DOSAR). methodology and assumptions used. administered on an annual basis by the • OMB Control Number: 1405–0050. • Enhance the quality, utility, and Department of State and conducted • Type of Request: Revision of clarity of the information to be under the terms of Section 203(c) of the Currently Approved Collection. collected. Immigration and Nationality Act (INA). Section 131 of the Immigration Act of • Originating Office: Bureau of • Minimize the reporting burden on 1990 (Pub. L. 101–649) that amended Administration, Office of the those who are to respond, including the INA 203 provides for a class of Procurement Executive (A/OPE). use of automated collection techniques immigrants known as ‘‘diversity • Form Number: N/A. or other forms of technology. immigrants.’’ Section 203(c) of the INA • Respondents: Any business, other Abstract of proposed collection: This information collection covers pre-award provides a maximum of 55,000 Diversity for-profit, individual, not-for-profit, or Visas (DV) each fiscal year to be made household organizations wishing to and post-award requirements of the DOSAR. During the pre-award phase, available to persons from countries with receive Department of State contracts. low rates of immigration to the United • Estimated Number of Respondents: information is collected to determine which bids or proposals offer the best States. 3,166. The annual DV program makes • value to the U.S. Government. Post- Estimated Number of Responses: permanent residence visas available to award actions include monitoring the 3,166. persons meeting the simple, but strict, contractor’s performance; issuing • Average Hours per Response: eligibility requirements. A computer- modifications to the contract; dealing Varies. generated random lottery drawing with unsatisfactory performance; • Total Estimated Burden: 275,970. chooses selectees for Diversity Visas. issuing payments to the contractor; and • Frequency: On occasion. The visas are distributed among six closing out the contract upon its • Obligation to Respond: Voluntary. geographic regions with a greater completion. number of visas going to regions with DATES: The Department will accept Methodology: Information is collected lower rates of immigration, and with no comments from the public up to 60 days from prospective offerors to evaluate visas going to nationals of countries from September 30, 2008. their proposals. The responses provided sending more than 50,000 immigrants to ADDRESSES: You may submit comments by the public are part of the offeror’s the U.S. over the period of the past five by any of the following methods: proposals in response to Department years. Within each region, no one • E-mail: [email protected]. You solicitations. This information may be country may receive more than seven must include the information collection submitted electronically (through fax or percent of the available Diversity Visas title and OMB control number in the e-mail), or may require a paper subject line of your message. in any one year. submission, depending upon For DV–2010, natives of the following • Mail (paper, disk, or CD–ROM complexity. After contract award, countries are not eligible to apply submissions): Barbara Latvanas, contractors are required to submit because the countries sent a total of Procurement Analyst, Department of information, on an as-needed basis, and more than 50,000 immigrants to the U.S. State, Office of the Procurement relate to the occurrence of specific in the previous five years: Brazil, Executive, 2201 C Street, NW., Suite circumstances. Canada, China (mainland-born), 900, State Annex Number 27, Dated: September 23, 2008. Colombia, Dominican Republic, Washington, DC 20522. Corey M. Rindner, Ecuador, El Salvador, Guatemala, Haiti, • Fax: 703–875–6155. India, Jamaica, Mexico, Pakistan, • Hand Delivery or Courier: Barbara Procurement Executive, Bureau of Administration, Department of State. Philippines, Peru, Poland, South Korea, Latvanas, Procurement Analyst, United Kingdom (except Northern Department of State, Office of the [FR Doc. E8–22993 Filed 9–29–08; 8:45 am] Ireland) and its dependent territories, Procurement Executive, 1000 Wilson BILLING CODE 4710–24–P and Vietnam. Boulevard, Suite 900, Arlington, VA Persons born in Hong Kong SAR, 22209. You must include the DEPARTMENT OF STATE Macau SAR and Taiwan are eligible. information collection title and OMB For DV–2010, Russia has returned to control number in any correspondence. [Public Notice 6379] the list of eligible countries. Kosovo has FOR FURTHER INFORMATION CONTACT: Bureau of Consular Affairs; also been added to the list of eligible Direct requests for additional Registration for the Diversity countries. No countries have been information regarding the collection Immigrant (DV–2010) Visa Program removed from the list of eligible listed in this notice, including requests countries for DV–2010. for copies of the proposed information AGENCY: Department of State. The Department of State implemented collection and supporting documents, to ACTION: Notice. the electronic registration system Barbara Latvanas, Procurement Analyst, beginning with DV–2005 in order to Office of the Procurement Executive, SUMMARY: This public notice provides make the Diversity Visa process more Department of State, Washington, DC information on how to apply for the efficient and secure. The Department 20522, who may be reached on 703– DV–2010 Program. This notice is issued utilizes special technology and other 516–1755. pursuant to 22 CFR 42.33(b)(3) which means to identify those who commit

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fraud for the purposes of illegal If you cannot meet either of these Form. The image file can be produced immigration or who submit multiple requirements, you should NOT submit either by taking a new digital entries. For DV–2010, for the first time, an entry to the DV program. photograph or by scanning a those who submit entries may check the photographic print with a digital Procedures for Submitting an Entry to status of entries online and determine scanner. DV–2010 whether their entries are selected or not Entries are subject to disqualification selected. Successful entrants will The Department of State will only and visa refusal for cases in which the continue to receive notification letters accept completed Electronic Diversity photographs are not recent or have been by mail. Visa Entry Forms submitted manipulated or fail to meet the electronically at http:// specifications explained below. Diversity Visa Registration Period www.dvlottery.state.gov during the Entries for the DV–2010 Diversity registration period between noon, Instructions for Submitting a Digital Visa Lottery must be submitted Eastern Daylight Time (EDT) (GMT–4), Photograph (Image) electronically between noon, Eastern Thursday, October 2, 2008 and noon, The image file must adhere to the Daylight Time (EDT) (GMT–4), Eastern Standard Time (EST) (GMT–5) following compositional specifications Thursday, October 2, 2008 and noon, Monday, December 1, 2008. and technical specifications and can be All entries by an individual will be Eastern Standard Time (EST) (GMT–5) produced in one of the following ways: disqualified if more than ONE entry for Monday, December 1, 2008. Applicants Taking a new digital image or using a that individual is received, regardless of may access the Electronic Diversity Visa digital scanner to scan a submitted Entry Form (E-DV) at http:// who submitted the entry. You may photograph. Entrants may test their www.dvlottery.state.gov during the prepare and submit your own entry, or photos for suitability through the photo registration period. Paper entries will have someone submit the entry for you. validator link on the e-DV Web site not be accepted. Applicants are strongly A successfully registered entry will before submitting their entries. The encouraged not to wait until the last result in the display of a confirmation photo validator provides additional week of the registration period to enter. screen containing your name and a technical advice on photo composition Heavy demand may result in Web site unique confirmation number. You may along with examples of acceptable and delays. No entries will be accepted after print this confirmation screen for your unacceptable photos. noon, EST, on December 1, 2008. records using the print function of your web browser. Starting July 1, 2009, you Requirements for Entry Compositional Specifications will be able to check the status of your To enter the DV lottery, you must be entry by returning to the Web site and The submitted digital image must a native of one of the listed countries. entering your unique confirmation conform to the following compositional See ‘‘List of Countries by Region Whose number and personal information. specifications or the entry will be Natives Qualify.’’ In most cases this Paper entries will not be accepted. disqualified: The person being means the country in which you were It is very important that all required photographed must directly face the born. However, there are two other ways photographs be submitted. Your entry camera; the head of the person should you may be able to qualify. First, if you will be disqualified if all required not be tilted up, down, or to the side; were born in a country whose natives photographs are not submitted. Recent the head of the person should cover are ineligible but your spouse was born photographs of the following people about 50% of the area of the photo; the in a country whose natives are eligible, must be submitted electronically with photograph should be taken with the you can claim your spouse’s country of the Electronic Diversity Visa Entry person in front of a neutral, light- birth provided both you and your Form: You; your spouse; each colored background; dark or patterned spouse are on the selected entry, are unmarried child under 21 years of age backgrounds are not acceptable; the issued visas and enter the U.S. at the time of your electronic entry, photo must be in focus; photos in which simultaneously. Second, if you were including all natural children as well as the person being photographed is born in a country whose natives are all legally adopted children and wearing sunglasses or other items that ineligible, but neither of your parents stepchildren, even if a child no longer detract from the face will not be was born there or resided there at the resides with you or you do not intend accepted; photos of applicants wearing time of your birth, you may claim for a child to immigrate under the DV head coverings or hats are only nativity in one of your parents’ country program. You do not need to submit a acceptable due to religious beliefs, and of birth if it is a country whose natives photo for a child who is already a U.S. even then, may not obscure any portion qualify for the DV–2010 program. citizen or a Legal Permanent Resident. of the face of the applicant; photographs To enter the lottery, you must meet Group or family photographs will not of applicants with tribal or other either the education or work experience be accepted; there must be a separate headgear not specifically religious in requirement of the DV program. You photograph for each family member. nature will not be accepted; must have either a high school Failure to submit the required photographs of military, airline, or other education or its equivalent, defined as photographs for your spouse and each personnel wearing hats will not be successful completion of a 12-year child listed will result in an incomplete accepted. course of elementary and secondary entry to the E-DV system. The entry will Color photographs in 24-bit color education; OR, two years of work not be accepted and must be depth are required. Photographs may be experience within the past five years in resubmitted. Failure to enter the correct downloaded from a camera into a file in an occupation requiring at least two photograph of each individual in the the computer or they may be scanned years of training or experience to case into the E-DV system will result in into a file in the computer. If you are perform. The U.S. Department of Labor’s disqualification of the principal using a scanner, the settings must be for O*Net OnLine database will be used to applicant and refusal of all visas in the True Color or 24-bit color mode. Color determine qualifying work experience. case at the time of the visa interview. photographs must be scanned at this For more information about qualifying A digital photograph (image) of you, setting for the requirements of the DV work experience, see Frequently Asked your spouse, and each child must be program. See the additional scanning Question #13. submitted on-line with the E-DV Entry requirements below.

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Technical Specifications eligibility is not related to where you Birth, Country of Birth, Photograph. The submitted digital photograph live. If you were born in a country that Failure to list your spouse will result in must conform to the following is not eligible for the DV program, disqualification of the principal specifications or the system will please review the instructions to see if applicant and refusal of all visas in the automatically reject the E-DV Entry there is another option for country of case at the time of the visa interview. 16. CHILDREN INFORMATION— Form and notify the sender. chargeability available for you. For Name, Date of Birth, Gender, City/Town When taking a new digital image: the additional information on chargeability, please review ‘‘Frequently Asked of Birth, Country of Birth, and image file format must be in the Joint Question #1’’ of these instructions. Photograph: Include all children Photographic Experts Group (JPEG) 7. ENTRY PHOTOGRAPH(S)—See the declared in question #14 above. format; it must have a maximum image technical information on photograph file size of two hundred forty kilobytes Selection of Applicants specifications. Make sure you include (240 KB); the image resolution must be photographs of your spouse and all your The computer will select at random 600 pixels high by 600 pixels wide; the children, if applicable. See: Frequently individuals from among all qualified image color depth must be 24-bit color Asked Question #3. entries. They will be notified by mail [Note: Color photographs are required. 8. MAILING ADDRESS—In Care of, between May and July 2009 and will be Black and white, monochrome images Address Line 1, Address Line 2, City/ provided further instructions, including (2-bit color depth), 8-bit color or 8-bit Town, District/Country/Province/State, information on fees connected with grayscale will not be accepted.] Postal Code/Zip Code, Country. immigration to the U.S. Those selected Before a photographic print is 9. COUNTRY WHERE YOU LIVE in the random drawing are not notified scanned it must meet the following TODAY. by e-mail. Those individuals not specifications: A color image is 10. PHONE NUMBER (optional). selected will not receive any required. The photographic print must 11. E-MAIL ADDRESS (optional). notification. U.S. embassies and also meet the compositional 12. WHAT IS THE HIGHEST LEVEL consulates will not be able to provide a specifications. If the photographic print OF EDUCATION YOU HAVE list of successful entrants. Spouses and meets the print color and compositional ACHIEVED, AS OF TODAY? You must unmarried children under age 21 of specifications, scan the print using the indicate which one of the following successful entrants may also apply for following scanner specifications: represents your own highest level of visas to accompany or follow to join the Scanner resolution must be at least 150 educational achievement: (1) Primary principal applicant. DV–2010 visas will dots per inch (dpi); the image file format school only, (2) High school, no degree, be issued between October 1, 2009 and in Joint Photographic Experts Group (3) High school degree, (4) Vocational September 30, 2010. (JPEG) format; the maximum image file school, (5) Some university courses, (6) Processing of entries and issuance of size must be two hundred forty University degree, (7) Some graduate diversity visas to successful individuals kilobytes (240 KB); the image resolution level courses, (8) Master degree, (9) and their eligible family members must at 600 by 600 pixels; the image color Some doctorate level courses, and (10) occur by midnight on September 30, depth 24-bit color. [Note that black and Doctorate degree. 2010. Under no circumstances can white or grayscale images with 24-bit 13. MARITAL STATUS—Unmarried, diversity visas be issued or adjustments color depth and monochrome images (2- Married, Divorced, Widowed, Legally approved after this date, nor can family bit color depth), 8-bit color or 8-bit Separated. members obtain diversity visas to follow grayscale will not be accepted.] 14. NUMBER OF CHILDREN: Entries to join the principal applicant in their must include the name, date and place case in the U.S. after this date. Information Required for the Electronic of birth of your spouse and all natural Entry In order to receive a Diversity Visa to children, as well as all legally-adopted immigrate to the United States, those There is only one way to enter the children and stepchildren, who are chosen in the random drawing must DV–2010 lottery. You must submit the unmarried and under the age of 21 on meet all eligibility requirements under DS 5501, the Electronic Diversity Visa the date of your entry (do not include U.S. law. These requirements may Entry Form (E–DV Entry Form), which children who are already U.S. citizens significantly increase the level of is accessible only at http:// or Legal Permanent Residents), even if scrutiny required and time necessary for www.dvlottery.state.gov. Failure to you are no longer legally married to the processing of applicants for natives of complete the form in its entirety will child’s parent, and even if the spouse or some countries listed in this notice, disqualify the entry. Those who submit child does not currently reside with you including, but not limited to, countries the E–DV entry will be asked to include and/or will not immigrate with you. identified as state sponsors of terrorism. the following information on the E–DV Note that married children and children Entry Form. 21 years or older are not eligible for the Important Notice 1. FULL NAME—Last/Family Name, diversity visa, however, U.S. law No fee is charged for the electronic First Name, Middle Name. protects children from ‘‘aging out’’ in lottery entry in the annual DV program. 2. DATE OF BIRTH—Day, Month, certain circumstances. If your electronic The U.S. Government employs no Year. DV entry is made before your unmarried outside consultants or private services 3. GENDER—Male or Female. child turns 21, even if they turn 21 to operate the DV program. Any 4. CITY WHERE YOU WERE BORN. before visa issuance, they will be treated intermediaries or others who offer 5. COUNTRY WHERE YOU WERE as though they are under 21 for visa assistance to prepare DV entries do so BORN—The name of the country should processing purposes. Failure to list all without the authority or consent of the be that which is currently in use for the children who are eligible will result in U.S. Government. Use of any outside place where you were born. disqualification of the principal intermediary or assistance to prepare a 6. COUNTRY OF ELIGIBILITY OR applicant and refusal of all visas in the DV entry is entirely at the entrant’s CHARGEABILITY FOR THE DV case at the time of the visa interview. discretion. PROGRAM—Your country of eligibility See: Frequently Asked Question #11. A qualified entry submitted will normally be the same as your 15. SPOUSE INFORMATION—Name, electronically directly by an applicant country of birth. Your country of Date of Birth, Gender, City/Town of has an equal chance of being selected by

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the computer at the Kentucky Consular chargeability (i.e. one to which you eligible may change from one year to the Center, as does an entry submitted cannot establish a valid claim) may next. electronically through a paid disqualify your entry. intermediary who completes the entry 5. What is the Numerical Limit for DV– 2. Are There Any Changes in New 2010? for the applicant. Every entry received Requirements in the Application during the lottery registration period Procedures for This Diversity Visa By law, the U.S. diversity immigration will have an equal random chance of Registration? program makes available a maximum of being selected within its region. 55,000 permanent residence visas each However, receipt of more than one entry No paper entries will be accepted. For year to eligible persons. However, the per person will disqualify the person DV–2010, you may check the status of Nicaraguan Adjustment and Central from registration, regardless of the your entry using your confirmation page source of the entry. information. Because this confirmation American Relief Act (NACARA) passed information will be provided only once, by Congress in November 1997 Frequently Asked Questions About E– at the time of your entry, it is extremely stipulates that beginning as early as DV– DV Registration important that you print or write down 1999, and for as long as necessary, up 1. What Do the Terms ‘‘Eligibility’’, your confirmation information for later to 5,000 of the 55,000 annually- ‘‘Native’’ and ‘‘Chargeability’’ Mean? use. If you lose this information, you allocated diversity visas will be made Are There Any Situations in Which will still receive a letter from the available for use under the NACARA Persons Who Were Not Born in a Kentucky Consular Center by mail program. The actual reduction of the Qualifying Country May Apply? notifying you of your selection, if you limit by up to 5,000 diversity visas are successful. You will receive no began with DV–2000 and is likely to Your country of eligibility will additional notification if your entry is normally be the same as your country of remain in effect through the DV–2010 unsuccessful, but may check this program. birth. Your country of eligibility is not through the Internet using your related to where you live. ‘‘Native’’ confirmation information. 6. What Are the Regional Diversity Visa ordinarily means someone born in a Photo size requirements have (DV) Limits for DV–2010? particular country, regardless of the increased for DV–2010 to 600 by 600 individual’s current country of pixels. Old photos used in previous The U.S. Citizenship and Immigration residence or nationality. For years should not be reused for DV–2010. Services (USCIS) determines the DV immigration purposes ‘‘native’’ can also Only color photos may be submitted for regional limits for each year according mean someone who is entitled to be DV–2010. Black and white photos are to a formula specified in Section 203(c) ‘‘charged’’ to a country other than the not acceptable. of the Immigration and Nationality Act one in which he/she was born under the (INA). Once the USCIS has completed 3. Are Signatures and Photographs provisions of Section 202(b) of the the calculations, the regional visa limits Required for Each Family Member, or Immigration and Nationality Act. For will be announced. example, if you were born in a country Only for the Principal Entrant? that is not eligible for this year’s DV Signatures are not required on the 7. When Will Entries for the DV–2010 program, you may claim chargeability to Electronic Diversity Visa Entry Form. Program Be Accepted? the country where your derivative Recent and individual photographs of spouse was born, but you will not be you, your spouse and all children under The DV–2010 entry period will run issued a DV–1 unless your spouse is 21 years of age are required. Family or through the registration period. Each also eligible for and issued a DV–2, and group photographs are not accepted. year millions of people apply for the both of you must enter the United States Refer to information on the photograph program during the registration period. together with the diversity visas. In a requirements located in this notice. The massive volume of entries creates similar manner, a minor dependent an enormous amount of work in child can be ‘‘charged’’ to a parent’s 4. Why Do Natives of Certain Countries selecting and processing successful country of birth. Not Qualify for the Diversity Program? individuals. Holding the entry period Finally, if you were born in a country Diversity visas are intended to during October, November, and not eligible to participate in this year’s provide an immigration opportunity for December will ensure that selectees are DV program, you can be ‘‘charged’’ to persons from countries other than the notified in a timely manner, and gives the country of birth of either of your countries that send large numbers of both the visa applicants and our parents as long as neither parent was a immigrants to the U.S. The law states embassies and consulates time to resident of the ineligible country at the that no diversity visas shall be provided prepare and complete cases for visa time of the your birth. In general, people for natives of ‘‘high admission’’ issuance. You are strongly encouraged are not considered residents of a countries. The law defines this to mean to enter early in the registration period. country in which they were not born or countries from which a total of 50,000 Excessive demand at end of the legally naturalized if they are only persons in the Family-Sponsored and registration period may slow the system visiting the country, studying in the Employment-Based visa categories down. No entries whatsoever will be country temporarily, or stationed immigrated to the United States during accepted after noon EST Monday, temporarily in the country for business the period of the previous five years. or professional reasons on behalf of a Each year, the USCIS adds the family December 1, 2008. company or government from a country and employment immigrant admission 8. May Persons Who Are in the U.S. other than the country in which the figures for the previous five years in Apply for the Program? applicant was born. If you claim order to identify the countries whose alternate chargeability, you must natives will be ineligible for the annual Yes, an applicant may be in the U.S. indicate such information on the E–DV diversity lottery. Because there is a or in another country, and the entry may electronic online entry form, question separate determination made before be submitted from the United States or #6. Please be aware that listing an each annual E–DV entry period, the list from abroad. incorrect country of eligibility or of countries whose natives are not

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9. Is Each Applicant Limited to Only spouse may still submit a separate entry, occupation that is designated as Job One Entry During the Annual E–DV even though he or she is listed on your Zone 4 or 5, classified in a Specific Registration Period? entry, as long as both entries include Vocational Preparation (SVP) range of Yes, the law allows only one entry by details on all dependents in your family. 7.0 or higher. How Do I Find the Qualifying or for each person during each See question #10 above. Occupations on the Department of registration period. Individuals for 12. Must I Submit My Own Entry, or Labor Web Site? Qualifying DV whom more than one entry is submitted May Someone Act on My Behalf? Occupations are shown on the will be disqualified. The Department of You may prepare and submit your Department of Labor O*Net Online State will employ sophisticated own entry, or have someone submit the Database. Follow these steps to find out technology and other means to identify entry for you. Regardless of whether an if your occupation qualifies: Select individuals who submit multiple entries entry is submitted by the individual ‘‘Find Occupations’’ and then select a during the registration period. People directly, or assistance is provided by an specific ‘‘Job Family.’’ For example, submitting more than one entry will be attorney, friend, relative, etc., only one select Architecture and Engineering and disqualified and an electronic record entry may be submitted in the name of click ‘‘GO.’’ Then click on the link for will be permanently maintained by the each person and the entrant remains the specific Occupation. Following the Department of State. Individuals may responsible for insuring that same example, click Aerospace apply for the program each year during information in the entry is correct and Engineers. After selecting a specific the regular registration period. complete. If the entry is selected, the Occupation link, select the tab ‘‘Job 10. May a Husband and a Wife Each notification letter will be sent only to Zone’’ to find out the designated Job Submit a Separate Entry? the mailing address provided on the Zone number and Specific Vocational entry. All entrants, including those not Preparation (SVP) rating range. Yes, a husband and a wife may each selected, will be able to check the status submit one entry if each meets the of their entry through the official DV 14. How Will Successful Entrants Be eligibility requirements. If either were Web site. Entrants should keep their Selected? selected, the other would be entitled to own confirmation page information so At the Kentucky Consular Center, all derivative status. they may independently check the entries received from each region will 11. What Family Members Must I status of their entry. be individually numbered. After the end Include on My E–DV Entry? of the registration period, a computer 13. What Are the Requirements for will randomly select entries from among On your entry you must list your Education or Work Experience? all the entries received for each spouse (husband or wife), and all The law and regulations require that geographic region. Within each region, unmarried children under 21 years of every entrant must have at least a high the first entry randomly selected will be age, with the exception of children who school education or its equivalent or, the first case registered, the second are already U.S. citizens or Legal within the past five years, have two entry selected the second registration, Permanent Residents. You must list years of work experience in an etc. All entries received during the your spouse even if you are currently occupation requiring at least two years registration period will have an equal separated from him/her, unless you are training or experience. A ‘‘high school chance of being selected within each legally separated (i.e., there is a written education or equivalent’’ is defined as region. When an entry has been agreement recognized by a court or a successful completion of a twelve-year selected, the entrant will be sent a court order). If you are legally separated course of elementary and secondary notification letter by the Kentucky or divorced, you do not need to list your education in the United States or Consular Center, which will provide former spouse. You must list all your successful completion in another visa application instructions. The children who are unmarried and under country of a formal course of elementary Kentucky Consular Center will continue 21 years of age at the time of your initial and secondary education comparable to to process the case until those selected electronic DV entry, whether they are a high school education in the United to be visa applicants are instructed to your natural children, your spouse’s States. Only formal courses of study appear for visa interviews at a U.S. children, or children you have formally meet this requirement, correspondence consular office or until those qualifying adopted in accordance with the laws of programs or equivalency certificates to change status in the United States your country, unless such child is (such as the G.E.D.) are not acceptable. apply at a domestic USCIS office. already a U.S. citizen or Legal Documentary proof of education or Important Note: Notifications to those Permanent Resident. List all children work experience must be presented to selected in the random lottery are not sent by under 21 years of age at the time of your the consular officer at the time of the e-mail. Should you receive an e-mail electronic entry even if they no longer visa interview. To determine eligibility notification about your E–DV selection, be reside with you or you do not intend for based on work experience, definitions aware that the message is not legitimate. them to immigrate under the DV from the Department of Labor’s O*Net program. OnLine database will be used. 15. May Selectees Adjust Their Status The fact that you have listed family What Occupations Qualify for the With USCIS? members on your entry does not mean Diversity Visa Program? The Yes, provided they are otherwise that they later must travel with you. Department of Labor (DOL) O*Net eligible to adjust status under the terms They may choose to remain behind. Online Database groups job experience of Section 245 of the INA, selected However, if you include an eligible into five ‘‘job zones.’’ While many individuals who are physically present dependent on your visa application occupations are listed on the DOL Web in the United States may apply to the forms that you failed to include on your site, only certain specified occupations USCIS for adjustment of status to original entry, your case will be qualify for the Diversity Visa Program. permanent resident. Applicants must disqualified. This only applies to those To qualify for a Diversity Visa on the ensure that USCIS can complete action who were family members at the time basis of your work experience, you on their cases, including processing of the original application was submitted, must, within the past five years, have any overseas derivatives, before not those acquired at a later date. Your two years of experience in an September 30, 2010, since on that date

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registrations for the DV–2010 program 18. Is There a Minimum Age for registration can only obtain visas in the expire. No visa numbers for the DV– Applicants To Apply for the E–DV DV category between October 2009 and 2010 program will be available after Program? September 2010. Applicants who apply midnight on September 30, 2010 under There is no minimum age to apply for overseas will receive an appointment any circumstances. the program, but the requirement of a letter from the Kentucky Consular high school education or work Center four to six weeks before the 16. Will Entrants Who Are Not Selected experience for each principal applicant scheduled appointment. Be Informed? at the time of application will 23. If an E–DV Selectee Dies, What Starting with DV–2010, all entrants, effectively disqualify most persons who Happens to the DV Case? are under age 18. including those not selected, will be The death of an individual selected in able to check the status of their entry 19. Are There Any Fees for the the lottery results in automatic through the E–DV Web site and find out E–DV Program? revocation of the DV case. Any eligible if their entry was or was not selected. There is no fee for submitting an spouse and/or children are no longer Entrants should keep their own electronic lottery entry. DV applicants entitled to the DV visa, for that entry. confirmation page information from the must pay all required visa fees at the time of their entry (October 2, 2008 to 24. When Will E–DV Online Be time of visa application directly to the Available? December 1, 2008) until they may check consular cashier at the embassy or the status of their entry online. Status consulate. Details of required diversity Online entry will be available during information for DV–2010 will be visa and immigration visa application the registration period beginning at available online from July 1, 2009 until fees will be included with the noon EDT (GMT–4) on October 2, 2008 June 30, 2010. All notification letters are instructions sent by the Kentucky and ending at noon EST (GMT–5) on sent within five to seven months from Consular Center to applicants who are December 1, 2008. the end of the application period to the selected. 25. Will I Be Able To Download and address indicated on the entry. Do DV Applicants Receive Waivers of Save the E–DV Entry Form to a Microsoft Word Program (or Other 17. How Many Individuals Will Be Any Grounds of Visa Ineligibility or Suitable Program) and Then Fill It Out? Selected? Receive Special Processing for a Waiver Application? No, you will not be able to save the There are 50,000 DV visas available Applicants are subject to all grounds form into another program for for DV–2010, but more than that number of ineligibility for immigrant visas completion and submission later. The of individuals will be selected. Because specified in the Immigration and E–DV Entry Form is a Web form only. it is likely that some of the first 50,000 Nationality Act. There are no special This makes it more ‘‘universal’’ than a persons who are selected will not provisions for the waiver of any ground proprietary word processor format. qualify for visas or pursue their cases to of visa ineligibility aside from those Additionally, it does require that the visa issuance, more than 50,000 entries ordinarily provided in the Act, nor is information be filled in and submitted will be selected by the Kentucky there special processing for waiver while on-line. Consular Center to ensure that all of the requests. Some general waiver 26. If I Don’t Have Access to a Scanner, available DV visas are issued. However, provisions for people with close Can I Send Photographs to My Relative this also means that there will not be a relatives who are American Citizens of in the U.S. To Scan the Photographs, sufficient number of visas for all those Lawful Permanent Resident aliens may Save the Photographs to a Diskette, and who are initially selected. All applicants be available to DV applicants as well, Then Mail the Diskette Back to Me To who are selected will be informed but the time constraints in the DV Apply? program will make it difficult for promptly of their place on the list. Yes, this can be done as long as the Interviews for the DV–2010 program applicants to benefit from such provisions. photograph meets the photograph will begin in October 2009. The requirements in the instructions, and Kentucky Consular Center will send 21. May Persons Who Are Already the photograph is electronically appointment letters to selected Registered for an Immigrant Visa in submitted with, and at the same time applicants four to six weeks before the Another Category Apply for the DV the E–DV online entry is submitted. The scheduled interviews with U.S. consular Program? applicants must already have the officers at overseas posts. Each month Yes, such persons may apply for the scanned photograph file when they visas will be issued, visa number DV program. submit the entry on-line. The availability permitting, to those photograph cannot be submitted 22. How Long Do Applicants Who Are applicants who are ready for issuance separate from the online application. Selected Remain Entitled To Apply for Only one on-line entry can be submitted during that month. Once all of the Visas in the DV Category? 50,000 DV visas have been issued, the for each person. Multiple submissions program for the year will end. In Persons selected in the DV–2010 will disqualify the entry for that person principle, visa numbers could be lottery are entitled to apply for visa for DV–2010. The entire entry finished before September 2010. issuance only during fiscal year 2010, (photograph and application together) Selected applicants who wish to receive from October 1, 2009 through can be submitted electronically from the September 30, 2010. Applicants must visas must be prepared to act promptly United States or from overseas. obtain the DV visa or adjust status by on their cases. Random selection by the the end of the fiscal year. There is no 27. Can I Save the Form On-Line So Kentucky Consular Center computer as carry-over of DV benefits into the next That I Can Fill Out Part and Then Come a selectee does not automatically year for persons who are selected but Back Later and Complete the guarantee that you will receive a visa. who do not obtain visas during FY– Remainder? You must qualify for the visa as well. 2010. Also, spouses and children who No, this cannot be done. The E–DV derive status from a DV–2010 Entry Form is designed to be completed

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and submitted at one time. However, application is received and the selected applicants will pay all diversity because the form is in two parts, and confirmation notice sent. and immigrant visa fees in person only because of possible network at the U.S. Embassy or Consulate at the 29. Will the Electronic Confirmation interruptions and delays, the E–DV time of the visa application. The Notice That the Completed E–DV Entry Consular Cashier or Consular Officer system is designed to permit up to sixty Form Has Been Received Through the immediately gives the visa applicant a (60) minutes between the downloading Online System Be Sent Immediately U.S. Government receipt for payment. of the form and when the entry is After Submission? received at the E–DV Web site after You should never send money for DV being submitted online. If more than The response from the E–DV Web site fees through the mail, through Western sixty minutes elapses and the entry has which contains confirmation of the Union, or any other delivery service. not been electronically received, the receipt of an acceptable E–DV Entry The E–DV lottery entries are made on information already received is Form is sent by the E–DV Web site the Internet, on the official U.S. discarded. This is done so that there is immediately. However, how long it Government E–DV Web site at http:// no possibility that a full entry could takes the response to reach the sender www.dvlottery.state.gov. KCC sends accidentally be interpreted as a is unpredictable due to the nature of the only letters to the selected applicants. duplicate of a previous partial entry. For Internet. If many minutes have elapsed KCC, consular offices, or the U.S. example, suppose an applicant with a since pressing the ‘Submit’ button, there Government has never sent e-mails to wife and child sends a filled in E–DV is no harm in pressing the ‘Submit’ notify selected individuals, and there Entry Form Part One and then receives button a second time. The E–DV system are no plans to use e-mail for this Form Part Two, but there is a delay will not be confused by a situation purpose for the DV–2010 program. before sending Part Two because of where the ‘Submit’ button is hit a The Department of State, Visa trouble finding the file that holds the second time, because no confirmation Services advises the public that only child’s photograph. If the filled in Form response has been received. An Internet sites including the ‘‘.gov’’ Part Two is sent by the applicant and applicant can try to submit an indicator are official government Web received by the E–DV Web site within application as many times as is sites. Many other non-governmental sixty (60) minutes, there is no problem. necessary until a complete application Web sites (e.g., using the suffixes However, if the Form Part Two is is received and the confirmation notice ‘‘.com’’ or ‘‘.org’’ or ‘‘.net’’) provide received after sixty (60) minutes have sent. However, once you receive a legitimate and useful immigration and confirmation notice, do not resubmit elapsed, then the applicant will be visa related information and services. your information. informed that he or she must start the Regardless of the content of non- governmental Web sites, the Department entire entry over from the beginning. 30. How Will I Know if the Notification of State does not endorse, recommend The DV–2010 instructions explain of Selection That I Have Received Is or sponsor any information or material clearly and completely what Authentic? How Can I Confirm That I shown at these other Web sites. Have in Fact Been Chosen in the information is required to fill in the Some Web sites may try to mislead Random DV Lottery? form. This way you can be fully customers and members of the public prepared, making sure you have all of Keep your confirmation page. You into thinking they are official Web sites the information needed, before you start will need it to check the status of your and may contact you by e-mail to lure to complete the form on-line. entry yourself at the official DV Web site you to their offers. These Web sites may 28. If the Submitted Digital Images Do after the electronic lottery is conducted attempt to require you to pay for Not Conform to the Specifications, the (usually March). If you lose your services such as forms and information Procedures State That the System Will confirmation information you will not about immigration procedures, which Automatically Reject the E–DV Entry be able to check your DV entry status are otherwise free on the Department of Form and Notify the Sender. Does This yourself and we will not resend the State Visa Services Web site, or overseas Mean I Will Be Able to Re-Submit My confirmation page to you. If selected, through the Embassy Consular Section Entry? you will also receive a letter from the Web sites. Additionally, these other Kentucky Consular Center by mail Web sites may require you to pay for Yes, the entry can be resubmitted. sometime between May and July 2009 at services you will not receive, often Since the entry was automatically the addresses listed on the E–DV entry. including diversity immigration rejected, it was not actually considered Only the randomly selected individuals application and visa fees in an effort to as submitted to the E–DV Web site. It will be notified by mail. Persons not outright steal your money. Once you does not count as a submitted E–DV selected may check their entry using send money in one of these scams, you entry, and no confirmation notice of their confirmation information through will never see it again. Also, you should receipt is sent. If there are problems the official DV Web site, but will not be wary of sending any personal with the digital photograph sent, receive additional official notification information that might be used for because it does not conform to the by e-mail or by mail. We will not resend identity fraud/theft to these Web sites. requirements, it is automatically confirmation page information to you. If rejected by the E–DV Web site. you lose your confirmation page 31. How Do I Report Internet Fraud or However, the amount of time it takes the information you will only find out if Unsolicited E-Mail? rejection message to reach the sender is you were selected if you receive an If you wish to file a complaint about unpredictable due to the nature of the official letter by mail. U.S. embassies Internet fraud, please see the Internet. If the problem can be fixed by and consulates will not be able to econsumer.gov Web site, hosted by the the applicant, and the Form Part One or provide a list of those selected to Federal Trade Commission, which is a Two is re-sent within sixty (60) minutes, continue the visa process. joint effort of consumer protection there is no problem. Otherwise the The Kentucky Consular Center (KCC) agencies from 17 nations at http:// submission process will have to be will send the letters notifying those www.econsumer.gov/english/ or go to started over. An applicant can try to selected. These letters will contain the Federal Bureau of Investigation (FBI) submit an application as many times as instructions for the visa application Internet Crime Complaint Center or IC3. is necessary until a complete process. The instructions say the To file a complaint about unsolicited e-

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mail, contact the Department of Justice Gambia, The Syria Contact Us page. Ghana Taiwan Guinea Thailand 32. If I Am Successful in Obtaining a Guinea-Bissau United Arab Emirates Visa Through the Dv Program Kenya Yemen Will the U.S. Government Assist With Lesotho Natives of the following Asian My Airfare to the U.S., Provide Liberia countries are not eligible for this year’s Assistance to Locate Housing and Libya diversity program: Employment, Provide Healthcare or Madagascar China [mainland-born], India, Provide Any Subsidies Until I Am Fully Malawi Pakistan, South Korea, Philippines, and Settled? Mali Vietnam. Hong Kong S.A.R. and Taiwan No, applicants who obtain a DV visa Mauritania do qualify and are listed above. Macau are not provided any type of assistance Mauritius S.A.R. also qualifies and is listed below. such as airfare, housing assistance, or Morocco Persons born in the areas administered subsidies. If you are selected to apply Mozambique prior to June 1967 by Israel, Jordan and for a DV visa, before you can be issued Namibia Syria are chargeable, respectively, to a visa, you will be required to provide Niger Israel, Jordan and Syria. evidence that you will not become a Nigeria public charge in the U.S. This evidence Rwanda List of Countries by Region Whose may be in the form of a combination of Sao Tome and Principe Natives Are Eligible for DV–2010 your personal assets, an Affidavit of Senegal Europe Support, Form I–134 from a relative or Seychelles friend residing in the U.S. and/or an Sierra Leone Albania offer of employment from an employer Somalia Andorra in the U.S. South Africa Armenia Sudan Austria List of Countries by Region Whose Swaziland Azerbaijan Natives Are Eligible for DV–2010 Tanzania Belarus The lists below show the countries Togo Belgium whose natives are eligible for DV–2010 Tunisia Bosnia and Herzegovina within each geographic region for this Uganda Bulgaria diversity program. The countries whose Zambia Croatia natives are not eligible for the DV–2010 Zimbabwe Cyprus program were identified by the U.S. Czech Republic Persons born in the Gaza Strip are Denmark (including components and Citizenship and Immigration Services chargeable to Egypt. (USCIS) according to the formula in dependent areas overseas) Section 203(c) of the Immigration and List of Countries by Region Whose Estonia Nationality Act. Dependent areas Natives Are Eligible for DV–2010 Finland France (including components and overseas are included within the region Asia of the governing country. The countries dependent areas overseas) Afghanistan whose natives are not eligible for this Georgia Bahrain Germany diversity program (because they are the Bangladesh Greece principal source countries of Family- Bhutan Hungary Sponsored and Employment-Based Brunei Iceland immigration, or ‘‘high admission’’ Burma Ireland countries) are noted after the respective Cambodia Italy regional lists. East Timor Kazakhstan Africa Hong Kong Special Administrative Kosovo Algeria Region Kyrgyzstan Angola Indonesia Latvia Benin Iran Liechtenstein Botswana Iraq Lithuania Burkina Faso Israel Luxembourg Burundi Japan Macedonia, the Former Yugoslav Cameroon Jordan Republic Cape Verde Kuwait Macau Special Administrative Region Central African Republic Laos Malta Chad Lebanon Moldova Comoros Malaysia Monaco Congo Maldives Montenegro Congo, Democratic Republic of the Mongolia Netherlands (including components and Cote D’Ivoire (Ivory Coast) Nepal dependent areas overseas) Djibouti North Korea Northern Ireland Egypt Oman Norway Equatorial Guinea Qatar Portugal (including components and Eritrea Saudi Arabia dependent areas overseas) Ethiopia Singapore Romania Gabon Sri Lanka Russia

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San Marino Honduras Advisory Committee Act (Pub. L. 92– Serbia Nicaragua 463, 5 U.S.C., Appendix 2), notice is Slovakia Panama hereby given for a Special Committee Slovenia Paraguay 215 meeting. The agenda will include: Spain Saint Kitts and Nevis Sweden Saint Lucia October 23 Switzerland Saint Vincent and the Grenadines Opening Plenary Session Tajikistan Suriname • Trinidad and Tobago Greetings, Introductions, Turkey Administrative Remarks Turkmenistan Uruguay • Venezuela Review and Approval of Agenda for Ukraine Tenth Plenary Uzbekistan Countries in this region whose natives • Review of October 2008 PMC Vatican City are not eligible for this year’s diversity Meeting Natives of the following European program: Brazil, Colombia, Dominican • Review of Revised Terms of countries are not eligible for this year’s Republic, Ecuador, El Salvador, Reference diversity program: Great Britain and Guatemala, Haiti, Jamaica, Mexico, and • Review and Approval of Ninth Poland. Great Britain (United Kingdom) Peru. Meeting Summary (RTCA Paper No. includes the following dependent areas: Dated: September 22, 2008. 211–08/SC215–031) Anguilla, Bermuda, British Virgin Janice Jacobs, Islands, Cayman Islands, Falkland DO–262 Normative Appendix Assistant Secretary for Consular Affairs, • Islands, Gibraltar, Montserrat, Pitcairn, Department of State. Status Update of Final Draft St. Helena, Turks and Caicos Islands. [FR Doc. E8–22994 Filed 9–29–08; 8:45 am] Approval • Revision of TSO C–159 (FAA) Note that for purposes of the diversity BILLING CODE 4710–06–P program only, Northern Ireland is DO–270 Normative Appendix treated separately; Northern Ireland • Report from Drafting Group does qualify and is listed among the DEPARTMENT OF TRANSPORTATION qualifying areas. • Subnetwork Operational Approval Process List of Countries by Region Whose Federal Aviation Administration Natives Are Eligible for DV–2010 Closing Plenary Tenth Meeting, Special Committee 215 • North America Aeronautical Mobile Satellite (Route) Any Other Business • Review of Next Plenary Meeting The Bahamas Services Next Generation Satellite Services and Equipment Dates In North America, natives of Canada • Adjourn—October 23, 2008—12 and Mexico are not eligible for this AGENCY: Federal Aviation noon year’s diversity program. Administration (FAA), DOT. Attendance is open to the interested Oceania ACTION: Notice of RTCA Special public but limited to space availability. Committee 215, Aeronautical Mobile With the approval of the chairmen, Australia (including components and Satellite (Route) Services, Next members of the public may present oral dependent areas overseas) Generation Satellite Services and statements at the meeting. Persons Fiji Equipment. wishing to present statements or obtain Kiribati information should contact the person Marshall Islands SUMMARY: The FAA is issuing this notice listed in the FOR FURTHER INFORMATION Micronesia, Federated States of to advise the public of a second meeting CONTACT section. Members of the public Nauru of RTCA Special Committee 215, may present a written statement to the New Zealand (including components Aeronautical Mobile Satellite (Route) committee at any time. and dependent areas overseas) Services, Next Generation Satellite Palau Issued in Washington, DC, on September Services and Equipment. 24, 2008. Papua New Guinea DATES: The meeting will be held Francisco Estrada C., Somoa October 23, 2008 9 a.m. to 12 noon. Solomon Islands RTCA Advisory Committee. Tonga ADDRESSES: Trump International Beach [FR Doc. E8–22983 Filed 9–29–08; 8:45 am] Tuvalu Resort, 18001 Collins Ave., Sunny Isles BILLING CODE 4910–13–P Vanuatu Beach, FL 33160, Tel: 305.692.5600, Fax: 305.692.5601, http:// South America, Central America, and www.trumpmiami.com. DEPARTMENT OF TRANSPORTATION the Caribbean FOR FURTHER INFORMATION CONTACT: Federal Motor Carrier Safety Antigua and Barbuda RTCA Secretariat, 1828 L Street, NW., Administration Argentina Suite 805, Washington, DC 20036; Barbados telephone (202) 833–9339; fax (202) Sunshine Act Meetings; Unified Carrier Belize 833–9434; Web site http://www.rtca.org Registration Plan Board of Directors Belize for directions. For additional details Bolivia contact: Kelly O’Keefe, Tel: + 1 202 AGENCY: Federal Motor Carrier Safety Chile 772–1873, e-mail: Administration (FMCSA), DOT. Costa Rica [email protected]. Time and Date: November 6, 2008, 12 Cuba Note: Dress is Business Casual. noon to 3 p.m., Eastern Time. Dominica Place: This meeting will take place Grenada SUPPLEMENTARY INFORMATION: Pursuant telephonically. Any interested person Guyana to section 10(a)(2) of the Federal may call Mr. Avelino Gutierrez at (505)

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827–4565 to receive the toll free number been in business for over 20 years, and Issued in Washington, DC, on September and pass code needed to participate in to this date, there has been no record of 24, 2008. these meetings by telephone. any accident/incident and/or injury to Grady C. Cothen, Jr., Status: Open to the public. any railroad employee that involved Deputy Associate Administrator for Safety Matters To Be Considered: The glazing. The cost to replace the present Standards and Program Development. Unified Carrier Registration Plan Board glazing would be cost prohibitive, and [FR Doc. E8–22904 Filed 9–29–08; 8:45 am] of Directors (the Board) will continue its the estimated cost would be BILLING CODE 4910–06–P work in developing and implementing approximately $3,270 plus labor. the Unified Carrier Registration Plan and Agreement and to that end, may Interested parties are invited to DEPARTMENT OF TRANSPORTATION consider matters properly before the participate in these proceedings by Board. submitting written views, data, or Federal Transit Administration comments. FRA does not anticipate FOR FURTHER INFORMATION CONTACT: Mr. scheduling a public hearing in [Docket No. FTA–2007–29123] Avelino Gutierrez, Chair, Unified connection with these proceedings since Carrier Registration Board of Directors at Capital Investment Program: the facts do not appear to warrant a (505) 827–4565. Availability of Final Circular hearing. If any interested party desires Dated: September 24, 2008. an opportunity for oral comment, they AGENCY: Federal Transit Administration Larry W. Minor, should notify FRA, in writing, before (FTA), DOT. Associate Administrator for Policy and the end of the comment period and ACTION: Notice of Availability of Final Program Development. specify the basis for their request. Circular. [FR Doc. E8–23053 Filed 9–29–08; 4:15 pm] All communications concerning these BILLING CODE 4910–EX–P proceedings should identify the SUMMARY: The Federal Transit appropriate docket number (e.g., Waiver Administration (FTA) has placed in the docket and on its Web site, guidance in DEPARTMENT OF TRANSPORTATION Petition Docket Number FRA–2008– 0096) and may be submitted by any of the form of a circular to assist grantees the following methods: in implementing the Capital Investment Federal Railroad Administration Program. Principally, the Capital • Web site: http:// Petition for Waiver of Compliance Investment Program provides Federal www.regulations.gov. Follow the online funding for buses and bus facilities, new In accordance with Part 211 of Title instructions for submitting comments. fixed guideway systems, and fixed 49 Code of Federal Regulations (CFR), • Fax: 202–493–2251. guideway modernization, as authorized notice is hereby given that the Federal • Mail: Docket Operations Facility, by statute. Railroad Administration (FRA) has U.S. Department of Transportation, 1200 DATES: The effective date of the circular received a request for a waiver of New Jersey Avenue, SE., W12–140, is November 1, 2008. compliance from certain requirements FOR FURTHER INFORMATION CONTACT: of its safety standards. The individual Washington, DC 20590. Kimberly Sledge, Office of Program petition is described below, including • Hand Delivery: 1200 New Jersey Management, Federal Transit the party seeking relief, the regulatory Avenue, SE., Room W12–140, Administration, 1200 New Jersey Ave., provisions involved, the nature of the Washington, DC 20590, between 9 a.m. SE., East Building, Washington, DC relief being requested, and the and 5 p.m., Monday through Friday, 20590, phone: (202) 366–2053, fax: (202) petitioner’s arguments in favor of relief. except Federal holidays. 366–7951, or e-mail, Great Smoky Mountain Railroad Communications received within 45 [email protected]; or Bonnie days of the date of this notice will be Graves, Office of Chief Counsel, same [Waiver Petition Docket Number FRA–2008– considered by FRA before final action is 0096] address, phone: (202) 366–0944, fax: taken. Comments received after that The Great Smoky Mountain Railroad (202) 366–3809, or e-mail, date will be considered as far as [email protected]. (GSM) has petitioned FRA to grant a practicable. All written communications waiver of compliance of the Safety concerning these proceedings are SUPPLEMENTARY INFORMATION: Glazing Standards, 49 CFR 223.13, available for examination during regular Availability of Final Circular Requirements for Existing Cabooses. business hours (9 a.m.–5 p.m.) at the The final circular is not included with Specifically, this waiver request is for above facility. All documents in the three (3) cabooses, GSM 01490, GSM this document. You may download an public docket are also available for 637 and X782. The noted cabooses are electronic copy of the circular from inspection and copying on the Internet normally used for captive tourist FTA’s Web site, at http:// at the docket facility’s Web site at service. On occasion, they are used for www.fta.dot.gov. From the home page, http://www.regulations.gov. freight service to interchange with the click on ‘‘Legislation, Regulations and Norfolk Southern Railroad within yard Anyone is able to search the Guidance’’ and on that page click on limits over 10 miles of the 53 miles of electronic form of any written ‘‘Circulars.’’ Circulars are listed in total track to comply with 49 CFR communications and comments numerical order; the Capital Investment 232.407, Operations Requiring Use of a received into any of our dockets by the Circular is number 9300.1. Paper copies Two Way End of Train Device. name of the individual submitting the of the circular may be obtained by The 3 cabooses operate over a comment (or signing the comment, if calling FTA’s Administrative Services combination of class 1 and class 2 track submitted on behalf of an association, Help Desk, at 202–366–4865. at a speed not exceeding 20 miles per business, labor union, etc.). You may You may retrieve the circular and hour. The total trackage is 53 miles. The review DOT’s complete Privacy Act comments online through the Federal 3 noted cabooses are presently equipped Statement in the Federal Register Document Management System (FDMS) with a mixture of safety glass and Lexan published on April 11, 2000 (Volume at: http://www.regulations.gov. Enter (polycarbonate thermoplastic). GSM has 65, Number 70; Pages 19477–78). docket number FTA–2007–29123 in the

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search field. The FDMS is available 24 comments, such as formatting and guidance documents to ensure hours each day, 365 days each year. suggestions, a suggestion to remove consistency. Electronic submission and retrieval help references to old Federal Register One commenter suggested that the and guidelines are available under the notices, to include specific terms in the definition of ‘‘Alternatives Analysis’’ help section of the Web site. index, and to do a thorough review of should not require alternatives analysis the draft for typos, cross-referencing studies to include sufficient information Table of Contents errors, and the like. We have removed to provide a rating for project II. Chapter-by-Chapter Analysis the old Federal Register references, justification and local financial A. Chapter I—Introduction and made some, but not all, of the suggested commitment. FTA refers the commenter Background formatting changes, added terms to the and others to 49 U.S.C. 5309(a)(1)(B), B. Chapter II—Program Overview index, and we have thoroughly which requires that alternatives analysis C. Chapter III—Buses and Bus Facilities studies include this information. Since D. Chapter IV—Fixed Guideway reviewed the document in an effort to Modernization remove the errors noted by commenters. this information is in the statute, we did E. Chapter V—New Starts/Small Starts Further, we have re-ordered the sections not change the definition in the circular. Program of some of the chapters to present the Two commenters had questions about F. Chapter VI—Other Provisions material in a more organized fashion. the definitions of ‘‘Eligible Applicant’’ G. Appendices Some comments were outside the scope and ‘‘Designated Recipient’’ as used in this circular. The term ‘‘Eligible I. Overview of the proposed circular, and we have not addressed those comments in either Applicant,’’ as used in this circular, This notice provides a summary of the circular or this Federal Register applies only to the Capital Investment changes to FTA Circular 9300.1A, notice. program, and not to the Clean Fuels bus Capital Program: Grant Application program; similarly, the definition of One commenter thought the title Instructions, and addresses comments ‘‘Designated Recipient,’’ as used in this ‘‘Capital Investment Program’’ was received in response to the September circular, applies only to the Clean Fuels misleading since we have included a 28, 2007, Federal Register notice (72 FR program, as it specifically addresses the brief description of the Clean Fuels 55624). Originally, the comment period nonattainment and maintenance area was scheduled to close on November 27, program (49 U.S.C. 5308) in the Bus requirements of the Clean Air Act. We 2007; however, in response to chapter. We included information about have used the term ‘‘Recipient’’ when comments to the docket, the comment the Clean Fuels program because buses referring to a designated recipient or an period was subsequently extended until purchased under Section 5309 may be eligible applicant, but when those January 25, 2008. FTA received Clean Fuels buses, and some recipients specific terms are used in this circular, comments from twelve parties, under Section 5309 may also seek they apply to either the Clean Fuels or including industry associations, transit funding under the Clean Fuels program the Capital Investment program, as agencies, metropolitan planning for additional buses. It is therefore defined. One commenter suggested that organizations, and one private appropriate to include information FTA change the Clean Fuels definition transportation provider. about this related program in the Bus to state, ‘‘* * * the Administrator of This final Circular 9300.1B chapter. One commenter suggested that EPA has certified sufficiently or supersedes the Circular 9300.1A, issued if FTA amends or updates the circular significantly reduces harmful in 1998. due to changes in other circulars or emissions.’’ Since the statute at 49 FTA has adopted all of the proposed regulations that undergo notice and U.S.C. 5308(a)(1)(B) uses the term formatting changes published in the comment, that there be further public ‘‘sufficiently,’’ FTA will use the same proposed circular. For example, we notice and comment. FTA disagrees. terminology. have changed the name of the circular When the revision of a circular or One commenter suggested we add the to ‘‘Capital Investment Program’’ to regulation requires an opportunity for word ‘‘streetcar’’ to the definition of reflect a focus on the capital investment notice and comment, there is no need to fixed guideway and we made that nature of eligible activities in 49 U.S.C. satisfy that requirement again just to change. One commenter suggested we 5309 (‘‘Section 5309’’), as amended by update a reference to that revised add a definition of ‘‘Urbanized Area,’’ the Safe, Accountable, Flexible, document in this circular. We have and we have done so. One commenter Efficient Transportation Equity Act: A clarified this language in the circular. suggested that we change the acronym Legacy for Users (SAFETEA-LU). In A. Chapter I—Introduction and for urbanized area from ‘‘UZA’’ to addition, we changed the format to Background ‘‘UA,’’ which is the Census Bureau’s make this circular consistent with the acronym. We decline to make that style of other circulars FTA is updating. Chapter I of the proposed circular is change. The acronym UZA is familiar to At the same time, we have tried to an introductory chapter and covers the transit industry, is used in virtually maintain some consistency with the general information about FTA and how every FTA document, and has become previous document; for example, to contact us, briefly reviews the a term of art. At the request of a information about the Bus program is authorizing legislation for the Capital commenter, we have added a definition still in Chapter III, Fixed Guideway Investment program (‘‘Section 5309 of ‘‘Intelligent Transportation Systems,’’ Modernization continues to be in program’’), provides information about but decline to add a definition of Chapter IV, with New Starts/Small Grants.gov, includes definitions ‘‘Eligible Projects,’’ as eligible projects Starts information in Chapter V. applicable to the program, and provides are included in Chapters II through V. Substantive changes in content, as well a brief program history. The definitions One commenter objected to the as comments to the proposed circular, section is new to this circular and inclusion of a definition of ‘‘Very Small are discussed in the chapter-by-chapter includes definitions related to the Starts;’’ we will address that objection analysis. Section 5309 program, as well as the and other comments received regarding Section 5308, Clean Fuels grant Very Small Starts in the analysis of II. Chapter-by-Chapter Analysis program. Where applicable, we have Chapter V. As a preliminary matter, some used the same definitions found in In addition to the changes described commenters had non-substantive statutes, rulemakings or other circulars above, FTA has added several

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definitions to this chapter, including alone project. In addition, bus purchases when part of a joint development ‘‘Capital Asset,’’ ‘‘Capital Lease,’’ to meet the needs of elderly persons and project, in accordance with FTA’s ‘‘Discretionary Funding,’’ ‘‘Facilities,’’ persons with disabilities continue to be guidance on joint development (72 FR ‘‘Grant,’’ ‘‘Intelligent Transportation eligible, since bus purchases generally 5788, Feb. 7, 2007). Systems,’’ ‘‘Preventive Maintenance,’’ are eligible. We note that the purchase One commenter recommended that ‘‘Public Transportation,’’ and ‘‘Useful of buses to meet the special FTA include a reference to the Federal Life.’’ transportation needs of these Highway Administration’s (FHWA) populations is the purpose of the guidance on the Congestion Mitigation B. Chapter II—Program Overview Section 5310 program, and funding is and Air Quality (CMAQ) Improvement Chapter II provides more detail about available from that program to private program in the paragraph, ‘‘Clean Air the Capital Investment program. The non-profit organizations where public Act.’’ We have added the hyperlink to first few sections of the chapter were re- transportation is unavailable, FHWA’s guidance on this program. One ordered for readability and consistency. insufficient or inappropriate. commenter suggested that FTA require This chapter starts with the statutory We proposed removing two recipients to include the planning authority for the Capital Investment previously eligible projects from the justification in FTA’s Transportation program, followed by apportionments, circular: the capital cost of contracting Electronic Award and Management funds availability, the goals of the and preventive maintenance for the bus (TEAM) system grant application. We program and a list of eligible projects. program. We noted that both of these have modified the circular to reflect this Also included in Chapter II is capital expenditures are eligible for suggestion. We have also updated the information on Federal/local matching funding under other FTA programs, Charter Bus information, since the final requirements, relationship to other FTA including the Urbanized Area Formula rule became effective on April 30, 2008. programs, and the requirements to program (49 U.S.C. 5307) and the Four commenters raised concerns ensure a recipient has the legal, Nonurbanized Area Formula program about the paragraph describing ‘‘Mixed- financial and technical capacity to carry (49 U.S.C. 5311). Three commenters Use Projects’’ in the section, out a Capital Investment project. expressed concern about removing the ‘‘Requirements Related to Facilities.’’ There were some changes to eligible capital cost of contracting from the list Commenters were concerned about projects under 49 U.S.C. 5309 with the of eligible expenses, and three FTA’s characterization of when a project enactment of SAFETEA–LU. Under the commenters expressed concern about would qualify as a joint development previous authorization statute (The removing preventive maintenance as an project, and were concerned that FTA Transportation Equity Act for the 21st eligible expense. After careful had an overbroad interpretation of Century (TEA–21)), there were eight consideration of the comments, we have ‘‘program income.’’ In addition, one categories of eligible projects in 49 returned both the capital cost of commenter requested that FTA include U.S.C. 5309. These included bus and contracting and preventive maintenance language on intercity bus terminals in bus facilities, new fixed guideways, to the list of eligible activities. this section. We have revised this fixed guideway modernization, Two commenters suggested that FTA section to address the commenter’s development of corridors to support include ‘‘intercity bus and intercity rail concerns by more clearly describing fixed guideway systems, projects stations and terminals’’ as eligible joint development projects and designed to meet the needs of elderly projects. We have added this language clarifying when revenue is ‘‘program and disabled passengers, projects to where appropriate. One commenter income.’’ Further, we added language introduce new technology, the capital requested that we add a paragraph on about intercity bus terminals. costs of coordinating public Joint Development under the Two commenters suggested that FTA transportation with other transportation, ‘‘Relationship to Other Programs’’ edit the section, ‘‘Environmental and capital projects needed for an section of this chapter. We decline to Considerations,’’ which describes the efficient and coordinated public add an additional paragraph, as there is requirements under the National transportation system. Under an extensive discussion in Chapter III, at Environmental Policy Act (NEPA). In SAFETEA–LU, there are only four section 8, ‘‘Requirements Related to the proposed circular, we included categories of eligible projects in 49 Facilities,’’ including a reference to examples of projects that are considered U.S.C. 5309: bus and bus facilities, new FTA’s policy on joint development, ‘‘categorical exclusions’’; however, fixed guideways, fixed guideway published in the Federal Register on FHWA and FTA jointly published a modernization, and corridor February 7, 2007 (72 FR 5788). notice of proposed rulemaking in the improvements. Therefore, the list of Federal Register (72 FR 44038, Aug. 7, eligible projects in the circular changed, C. Chapter III—Buses and Bus Facilities 2007), and therefore, that list may as well. We defined the four categories Chapter III addresses buses and change. In order to keep the circular of eligible projects as ‘‘capital related equipment, commonly known as current even after the rule has been investment projects’’ and listed them in ‘‘the bus program.’’ This chapter finalized, we have removed the list of this chapter as ‘‘assets for which FTA contains information on how funds are items that are considered categorical provides assistance.’’ In addition to allocated, a new section describing exclusions and addressed NEPA these ‘‘capital investment projects,’’ eligible recipients, examples of eligible requirements in general terms. however, we have included a list of bus projects, environmental Two commenters suggested that FTA projects that, ‘‘when integral to a capital considerations, requirements related to revise its like-kind exchange policy. investment project,’’ are eligible for vehicles, equipment, and facilities, and One commenter suggested that proceeds Section 5309 funding. One commenter information about a complementary from vehicles disposed of prior to the asked us to clarify whether Intelligent program, the Clean Fuels grant program. end of their useful lives should be able Transportation Systems (ITS) is eligible Two commenters suggested including to be used for any federally funded as a stand-alone project. Since the intercity bus and rail terminals and activity. FTA’s long-standing like-kind statute permits the purchase of ‘‘buses stations as eligible projects. We have exchange policy requires assets and related equipment’’ and ITS added this language where appropriate, disposed of prior to their useful lives to projects are directly related to buses and and specified that funding of intercity be replaced in kind, or the proceeds of bus facilities, ITS is eligible as a stand- bus stations and terminals are eligible such disposition returned to FTA. We

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believe this policy protects the Federal have edited the section, ‘‘Requirements investment in a defined corridor.’’ The interest and should not be changed. of Fixed Guideway Modernization discussion of Small Starts set forth in Another commenter suggested that Projects’’ to remove the list of the circular reflects the proposed and FTA’s ability to direct the proceeds of categorically excluded projects. This final policy guidance on New Starts and any sale should be limited to its section now includes general Small Starts developed through public remaining interest, and the use of information about NEPA requirements notice and comment. See, 73 FR 21170, proceeds in excess of the Federal as they relate to fixed guideway Apr. 18, 2008 and 73 FR 46352, Aug. 8, interest should be up to the recipient. modernization. 2008. FTA declines to make this change One commenter noted that FTA has Two commenters questioned FTA’s because 49 U.S.C. 5334(h)(4)(B) requires adopted a general policy that rail authority to establish requirements for that ‘‘the net income from asset sales, vehicles have a minimum useful life of ‘‘Very Small Starts’’ that differ from uses, or leases (including lease 25 years, but a recipient may measure those for Small Starts since ‘‘Very Small renewals) * * * shall be used by the lifespan by hours of operation or Starts’’ are not defined or established by recipient to reduce the gross project cost another measure, and requested that statute or regulation. FTA interprets 49 of other capital projects carried out these alternative methodologies be U.S.C. 5309(c)(3) to provide the Federal under this chapter.’’ One commenter referenced in subsequent paragraphs. Transit Administrator with broad suggested that FTA develop useful life We decline to make that change discretion to award grants for disparate standards for sedans and pick-up trucks primarily because we note in the types of New Start and Small Start which are commonly purchased by circular that ‘‘A recipient * * * may projects on such ‘‘terms, conditions, transit agencies. FTA has added sedans develop an appropriate methodology for requirements, and provisions’’ as the used in revenue service to the list that converting its system to years of Administrator determines ‘‘necessary or includes small buses and vans, and we service.’’ Once converted, it is appropriate’’ to carry out the New Starts have added useful life standards for appropriate to discuss useful life in and Small Starts programs authorized trolleys and ferryboats. Vehicles used in terms of years rather than in hours of by 49 U.S.C. 5309(d) and (e). The non-revenue service are considered service or other measure of useful life. discussion of Very Small Starts set forth ‘‘equipment’’ and the reader is directed One commenter suggested that FTA in the circular reflects the proposed and to FTA circular 5010, Grants clarify, in the subsection, ‘‘Major Capital final policy guidance on New Starts and Management Requirements, for useful Projects,’’ whether a project Small Starts developed through public life requirements for equipment. management plan must be approved by notice and comment. See, e.g., 71 FR Two commenters made suggestions FTA as a prerequisite to having the 45100, Aug. 8, 2006; 72 FR 6663, Feb. about the language in the section on Buy grant approved, and set a time period 12, 2007; 72 FR 30912, June 4, 2007; and America; we have streamlined this for FTA review of any submissions. We the Updated Interim Guidance on Small paragraph in Chapter III as well as in have made this change. Starts issued in July 2007. Although other chapters that contain information E. Chapter V—New Starts/Small Starts FTA has not yet promulgated a final regulation for New Starts and Small on Buy America. One commenter Program requested that FTA permit a ‘‘phase-in’’ Starts, the Administrator continues, in period for the requirements of the Chapter V addresses the New Starts/ his discretion, to award discretionary Presidential Coin Act. FTA does not Small Starts program, and we have grants under both programs, and this have a role in the implementation of added a section, ‘‘Allocation of Funds circular reflects the basis on which the this statute. We provide the information and Period of Availability.’’ In addition Administrator will award grants for in the circular simply to make recipients to the information found in Chapter V Very Small Starts. aware of their responsibilities. FTA has of the circular, FTA maintains a New Two commenters indicated that FTA moved the section discussing the Starts Web page, at http:// should revise its definition of Presidential Coin Act to Chapter VI, www.fta.dot.gov/planning/ ‘‘financially constrained,’’ found in the Other Provisions, since it applies to all planning_environment_5221.html, section, ‘‘Planning and Project Section 5309 projects. which contains the most up-to-date Development Process.’’ We have revised guidance for this program. this definition so that it is identical to D. Chapter IV—Fixed Guideway In this circular, FTA draws a the definition found in the FHWA/FTA Modernization distinction between a ‘‘New Start’’—a planning regulation at 23 CFR 450.104. Chapter IV addresses fixed guideway project that has a total cost of $250 Two commenters suggested that in the modernization, and the chapter has million or more, or for which the project section, ‘‘Environmental Protection,’’ been re-ordered for readability and sponsor is requesting more than $75 the circular should not state that consistency. One commenter disagreed million in Federal funds; and a ‘‘Small environmental regulations ‘‘prohibit with the statement in the section, Start’’—a project that has a total cost of FTA from taking a final action * * *.’’ ‘‘Relationship to Urbanized Area less than $250 million that requests less We have revised the section to include Formula Funding,’’ that for projects than $75 million in Federal funds. The language from the joint FHWA/FTA using both Section 5307 and Section various requirements for these two environmental regulations. One 5309 funding, ‘‘it may be efficient to different types of projects are described commenter indicated that we only submit the grant applications at the throughout the chapter. addressed New Starts in this section; we same time.’’ We decline to remove this Two commenters requested that FTA have added the terms Small Starts and sentence. It is not a requirement that include the statutory list of Very Small Starts, as the environmental these applications be submitted at the characteristics that make a corridor- protection requirements are likely to same time, but in many cases, it may in based bus capital project a ‘‘fixed apply to those projects, as well. fact be more efficient to do so. As we guideway capital project.’’ The list of state in the circular, the grant applicant characteristics found in 49 U.S.C. F. Chapter VI—Other Provisions should discuss the best approach with 5309(e)(10)(B) is neither prescriptive This chapter is similar to the ‘‘Other the appropriate FTA regional office. nor exhaustive. The statute uses the Provisions’’ chapters in other FTA Similar to Chapter III’s section on words ‘‘such as’’ when listing those circulars, and summarizes a number of ‘‘Environmental Considerations,’’ we features that represent a ‘‘substantial FTA-specific and other Federal

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requirements that FTA grantees are held approved Statewide Transportation legal questions, please contact Jayme L. to in addition to the program-specific Improvement Plan (STIP) for the Blakesley at 202–366–0304 or requirements and guidance provided in projects listed in the application. [email protected]. the circular. We revised this chapter to Appendix B provides budget SUPPLEMENTARY INFORMATION: alphabetize the provisions, and we information, including several sample moved the Presidential Coin Act to this budgets. Appendix C contains samples Availability of Final Circular chapter. of an Authorizing Resolution, a Fleet The final circular is not included with Two commenters asked FTA to clarify Status Report, Like-Kind Transaction for this document. You may download an whether the public hearing Mid-life Sale of a Transit Bus, an electronic copy of the circular from requirements described in the section, Opinion of Counsel, a Project Milestone FTA’s Web site at http:// ‘‘Public Hearing Requirements’’ apply to Schedule, and Proceeds from the Sale of www.fta.dot.gov. From the home page, projects that are categorical exclusions Assets. Appendix D contains contact click on ‘‘Legislation, Regulations and under NEPA. The circular states that information for all of FTA’s regional and Guidance’’ and on that page click on NEPA public hearing requirements are metropolitan offices, and a new ‘‘Circulars.’’ Circulars are listed in sufficient to meet the requirements of 49 Appendix E contains a listing of all legal numerical order; the Grant Management U.S.C. 5323(b), which requires public citations found in the circular. Circular is number 5010.1D. Paper involvement for any capital project that With the substantive exceptions noted copies of the circular may be obtained will ‘‘substantially affect a community in the chapter-by-chapter analysis by calling FTA’s Administrative or the public transportation services of above, as well as non-substantive and a community.’’ Therefore, whether or Services Help Desk at 202–366–4865. clarifying edits, FTA adopts the final You may retrieve the circular and not NEPA public hearing requirements circular as proposed. apply, the provisions of 49 U.S.C. comments online through the Federal 5323(b) require public involvement for Issued in Washington, DC, this 22nd day Document Management System (FDMS) of September, 2008. most capital projects. In response to at: http://www.regulations.gov. Enter comments, we have edited this section James S. Simpson, docket number 29122 in the search to clarify the requirements. Administrator. field. Instructions on using FDMS can We have revised the section, [FR Doc. E8–22840 Filed 9–29–08; 8:45 am] be found under the help section of the ‘‘Environmental Reviews,’’ since each BILLING CODE 4910–57–P Web site. chapter contains specific information Table of Contents about environmental requirements that apply to specific types of projects, and DEPARTMENT OF TRANSPORTATION I. Overview an extensive discussion in this chapter II. Chapter-by-Chapter Analysis Federal Transit Administration A. Chapter I—Introduction and is repetitive and unnecessary. One Background commenter suggested that in the [Docket No. FTA–2007–29122] B. Chapter II—Circular Overview section, ‘‘Clean Air Act,’’ we include as C. Chapter III—Grant Administration an appendix the list of exempt transit Grant Management Guidance D. Chapter IV—Project Management projects in the EPA regulation that do E. Chapter V—Oversight AGENCY: Federal Transit Administration not require any analysis. We decline to F. Chapter VI—Financial Management (FTA), DOT. include this list, but we have included G. Appendices ACTION: Notice of Availability of Final the direct regulatory citation for this I. Overview information. Circular. We have updated the section, This notice provides a summary of SUMMARY: The Federal Transit ‘‘Charter Bus Services’’ to reflect the changes to FTA’s Grant Management Administration (FTA) has placed in the new regulation on charter service. (73 Circular. The prior Grant Management docket and on its Web site (http:// FR 2326, Jan. 14, 2008). Circular was numbered C 5010.1C. This www.fta.dot.gov) guidance in the form new Grant Management Circular is G. Appendices of Circular 5010.1D, Grant Management numbered C 5010.1D. This final Circular The appendices are intended as tools Requirements, which circular replaces 5010.1D supersedes Circular 5010.1C. for developing a grant application. FTA’s prior Grant Management Circular This notice addresses comments Appendix A specifically addresses steps 5010.1C. Circular 5010.1D includes received in response to the September and instructions for preparing a grant information pertaining to new and 28, 2007, Federal Register notice (72 FR application, including pre-application existing FTA programs; incorporates 55629, Notice of Proposed Guidance and application stages. Appendix A also provisions of the Safe, Accountable, and Request for Comment on the includes an application checklist and Flexible, Efficient Transportation Equity Federal Transit Administration’s Grant information for registering with the Act: A Legacy for Users (SAFETEA–LU); Management Requirements FTA Electronic Clearing House Operation’s discusses the circumstances under Circular 5010.1D). FTA received (ECHO’s) electronic payment system. which a grantee may request budget comments from nine parties, including One commenter suggested we include revisions and grant amendments; an industry association, transit agencies, information as to where one can find the identifies useful life standards for and State departments of transportation TEAM User Guide; we have included trolleys, ferry boats, and facilities; and (State DOTs). the hyperlink to the Web site for this increases the threshold that determines FTA has adopted most of the information. One commenter suggested whether FTA must approve a real estate proposed formatting changes published that FTA request planning justification appraisal. in the proposed circular. For example, information in the ‘‘project description’’ DATES: The effective date of the circular we changed the format to make this section of TEAM. While this is November 1, 2008. circular consistent with the style of information is not required in the FOR FURTHER INFORMATION CONTACT: For other circulars FTA is updating while project description, we note that program questions, please contact maintaining some consistency with the recipients must include the date and MaryAnne Polkiewicz at 202–366–0203 previous document. Substantive page number of the most recently or [email protected]. For changes in content and comments to the

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proposed circular are discussed in the those comments in either the circular or Catalog of Federal Domestic Assistance Chapter-by-Chapter Analysis heading. this Federal Register notice. (CFDA). The definition of force account has been revised and Catalog of Federal One commenter noted that in the A. Chapter I—Introduction and Domestic Assistance has been added to September 28, 2007, Federal Register Background notice FTA titled proposed Circular the definition section. 5010.1D ‘‘Grant Management Chapter I introduces the Federal Another commenter asked FTA to Requirements.’’ This commenter asked Transit Administration (FTA) and its clarify whether a Native American tribe FTA to change the title to ‘‘Grant authorizing legislation (49 U.S.C. is considered a local government Management Guidelines.’’ FTA Chapter 53). It also instructs readers on authority. FTA has edited the disagrees with this change. The how to contact FTA and how to find out introduction section to include federally requirements in the circular are based about competitive grant opportunities recognized Indian tribes and a on existing regulation. using Grants.gov. Finally, Chapter I definition of Tribal Government from 43 The cover page to Circular 5010.1D defines all terms-of-art used in Circular U.S.C. 1601. includes a statement at Section (6) that 5010.1D. One commenter asked FTA to state ‘‘FTA reserves the right to update this One commenter asked FTA to change that the Common Rule (49 CFR part 18) circular to reflect changes in other its definition of ‘‘real property’’ to applies to all FTA grantees. FTA has revised or new guidance and regulations conform to certain State provisions that added language making clear the that undergo notice and comment define real property to include applicability of the Common Rule. machinery and equipment that are without further notice and comment on B. Chapter II—Circular Overview this circular.’’ One commenter objected fixtures. After careful consideration, to this statement, arguing that all FTA has decided against changing its Chapter II provides an overview of changes should be subject to notice and definition of real property. Circular 5010.1D, including applicable The same commenter asked FTA to comment. FTA disagrees. When the program descriptions, grant revise its definitions of ‘‘equipment’’ revision of a circular or regulation management responsibilities, and and ‘‘supplies’’ so that the dollar value includes an opportunity for notice and Federal civil rights requirements. thresholds are comparable. This One commenter suggested that the comment, there is no need to duplicate commenter asked FTA to raise the applicable program descriptions should that effort for each circular affected by ceiling for supplies to $25,000. FTA include fewer details. FTA disagrees. such revision. declines to revise its definitions of FTA is using the same program One commenter lauded FTA, noting ‘‘equipment’’ and ‘‘supplies.’’ These descriptions in all of its circulars to that the expanded narrative and definitions are based on the definitions reduce the need for ad hoc revisions to examples are positive improvements. and requirements at 49 CFR part 18— each circular whenever programs This commenter and one other stated Uniform Administrative Requirements change. that FTA could improve Circular for Grants and Cooperative Agreements The same commenter asked FTA to 5010.1D by adding more references or to State and Local Governments (also consider adding under its role that FTA Web addresses. FTA agrees with this known as the Common Grant Rule). may utilize a Project Management commenter and will include Web One commenter noted that by Oversight Consultant to aid in its addresses in the electronic version of defining a budget revision to include the management of grants. FTA declines to Circular 5010.1D. addition or deletion of an activity line make this revision, noting that this is Three commenters asked FTA to item (ALI) in FTA’s Transportation explained in Chapter V, Oversight. clarify the difference between the terms Electronic Award and Management One commenter said it was redundant grantee, recipient, and subrecipient. (TEAM) system, the proposed circular for FTA to provide an introduction FTA has added language to Circular appeared to contradict prior FTA under the heading ‘‘Responsibilities of 5010.1D stating that it uses the terms guidance. FTA notes that this change is Grant Management’’ and to add another grantee and recipient interchangeably, intentional and in the instance of any list of specifications. FTA disagrees. and clarifying its pass-thru policies. such contradictions, Circular 5010.1D These sections are similar but not II. Chapter-by-Chapter Analysis supersedes prior versions of the identical. circular. Another commenter asked FTA to As a preliminary matter, some One commenter recommended that review the list of Civil Rights commenters had non-substantive the proposed definition for requirements to ensure that it includes comments, such as formatting discretionary funding should be revised the proper thresholds. FTA has updated suggestions, a suggestion to remove to read ‘‘grant funds distributed at the Circular 5010.1D accordingly. references to old Federal Register discretion of the agency, or Congress, as C. Chapter III—Grant Administration notices, to include specific terms in the distinct from formula funding.’’ Except index, and to do a thorough review of for ‘‘or Congress,’’ FTA has incorporated Chapter III discusses the mechanics the draft for typos, cross-referencing this language into the final version of and requirements for grant errors, and the like. We have removed Circular 5010.1D. administration, including the grant the old Federal Register references, Another commenter suggested that application process, reporting made some, but not all, of the suggested FTA revise its definition of straight line requirements, and grant modifications formatting changes, added terms to the depreciation. FTA has modified its (including budget revisions). index, and we have thoroughly definition accordingly. One commenter noted that FTA’s reviewed the document in an effort to Another commenter asked FTA to TEAM system requires FTA approval on remove the errors noted by commenters. define ECHO. FTA has added a all budget revisions. As noted, TEAM Furthermore, we have reordered the definition of ECHO-Electronic Clearing does not recognize the difference sections of some of the chapters to House Operation. between budget revisions that do and do provide the material in a more One commenter noted discrepancies not require FTA approval. Accordingly, organized fashion. Some comments in FTA’s use of the term ‘‘force grantees may continue to make certain were outside the scope of the proposed account.’’ This same commenter asked budget revisions without prior FTA circular, and we have not addressed FTA to add information about the approval.

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This same commenter asked FTA to It could also include the addition or commenter asked FTA to expand this add descriptions of size and physical deletion of an ALI. policy to include other formats such as characteristics to Subsection 4.a(3)(e). An administrative amendment is a microfiche or digitally scanned FTA declines to add more detail to this minor change in a grant agreement documents. FTA has examined this subsection, for any change in size or normally initiated by FTA to modify or comment and added language to physical characteristic would require clarify certain terms, conditions, or Circular 5010.1D that allows for other FTA approval. Even the smallest change provisions of a grant. A grant formats. in the size or physical characteristic, amendment is the modification of a D. Chapter IV—Project Management such as the difference between surface grant that includes a change in scope or structured parking, could affect FTA and/or a change in Federal funds. With Real property, equipment and and grantee responsibilities under the respect to establishing time limits for supplies, rolling stock, and facilities National Environmental Policy Act or processing budget revisions and grant purchased or constructed for project other Federal requirements. amendments, FTA agrees with the purposes must be managed, used, and One commenter urged FTA to enlarge commenter but believes that such disposed of in accordance with the universe of changes that may be timeframes are best made through applicable laws and regulations. made without pre-approval. FTA internal standard operating procedures Chapter IV provides guidance on the disagrees with this commenter. Circular (SOPs) and not through this circular. management, use, and disposition of 5010.1D strikes a balance between FTA proposed requiring prior FTA funded real property, equipment, flexibility and good stewardship. To approval for budget revisions for all supplies, rolling stock, and facilities. allow greater flexibility would risk the grants with a Federal share of more than One commenter asked why FTA misuse of Federal funds. $100,000 and if the change in the decided to include real property in its With respect to spare vehicles, cumulative amount of funds allocated to Grant Management Circular and not in another commenter suggested that as each scope from the originally approved its Procurement Circular. FTA notes that long as the spare ratio requirements are scope exceeds 20 percent. One it may need to include a section on real maintained and funds are available commenter asked FTA to rethink the property in its Procurement Circular, within the rolling stock scope or other $100,000 threshold. This commenter but declines to remove it from Circular scopes, FTA should permit grantees to suggests applying the 20 percent rule to 5010.1D. make revisions regarding fleet number all grants, regardless of whether the Another commenter applauded FTA’s without prior FTA approval. FTA Federal share exceeds $100,000. The proposal to raise the threshold for disagrees with this commenter. Prior $100,000 threshold is based on the appraisal concurrence from $100,000 to FTA approval must be obtained for Common Grant Rule requirements at 49 $500,000, but asked FTA to consider revenue rolling stock, whenever the CFR part 18—Uniform Administrative increasing the threshold to $1,000,000. budget revision changes the number of Requirements for Grants and While FTA appreciates this comment, it vehicles to be purchased by more than Cooperative Agreements to State and is still common for FTA to discover two units (for grants with fewer than 10 Local Governments. incorrect appraisals. For this reason, vehicles) or more than 20 percent from One commenter asked FTA to inform FTA will not increase the threshold to the quantity identified in the original the grantee when FTA is about to take $1,000,000. grant. The grantee must continue to any unilateral action with respect to a One commenter asked FTA to better meet FTA bus spare ratio requirements grant, especially if that action relates to explain the conditions that may warrant for any change in the number of revenue closing out a grant. FTA agrees. the use of a grantee’s own labor forces, rolling stock. If the change in the Although it is common practice to commonly referred to as force account. number of revenue rolling stock exceeds inform the grantee of such actions, FTA FTA has added the following conditions 20 percent, the budget revision must be will reemphasize the need to contact to Circular 5010.1D: (1) Cost savings, (2) supported by a Rolling Stock Status grantees before taking unilateral action exclusive expertise, (3) safety and Report. to close out a grant. efficiency of operations, and (4) union Another commenter noted that the This same commenter asked FTA to agreement. addition or deletion of ALIs represents explain why the ‘‘details’’ section in A commenter stated that FTA should significant changes to the purpose of a TEAM limits text to 60 characters. FTA require its grantees to notify FTA of grant and asked FTA to clarify the instructs its grantees to use the excess land as soon as it becomes difference between revisions and attachment feature if 60 characters are excess, and asked that such notification amendments. This same commenter insufficient. include a disposition proposal and asked FTA to establish time limits for One commenter pointed out that, schedule for disposition. FTA does not processing budget revisions and to contrary to its statement in the Federal agree with this commenter. Grantees advise grantees whenever Register, FTA did not indicate in must notify FTA when property is administrative amendments are proposed Circular 5010.1D how it has removed from the service originally anticipated. FTA appreciates these changed its use of the term ‘‘scope.’’ intended. The notification must include suggestions. With respect to the FTA agrees with this commenter and the anticipated disposition or action difference between budget revisions and clarified the definitions of scope and proposed. grant amendments, FTA has included activity line items (ALIs). Previously, FTA would rely upon a language in Circular 5010 distinguishing Milestone/progress reporting for all grantee’s expertise when determining between budget revisions, Section 5309 grant recipients, regardless the useful life for assets other than administrative amendments, and grant of location and population area, has rolling stock. One commenter asked amendments. been revised to reflect the requirement FTA to continue this practice instead of A budget revision is any change to submit quarterly reports in TEAM fixing a useful life for all assets. FTA within the scope that impacts budget when grants include construction of a disagrees with this commenter. By allocations of the original grant. A facility. establishing a useful life for facilities, budget revision may be a transfer of In the records retention section of its FTA ensures consistency across projects funds within a project scope or between proposed guidance, FTA noted that and regions. Where a useful life policy existing ALIs within an approved grant. photocopies are acceptable. One has not been defined by FTA, the

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grantee, in consultation with the FTA One commenter asked FTA to fair market value shall be calculated on regional or metropolitan office shall consider adopting the practice of the basis of the condition of the ‘‘make the case’’ by identifying a useful communicating directly with the equipment or supplies immediately life period for all equipment and grantee receiving a new grant award, before the fire, casualty, or natural facilities with an acquisition value perhaps by modifying TEAM to include disaster, irrespective of the extent of greater than $5,000 to be procured with a facility for automatically advising insurance coverage. Federal funds. In the grant application, grantee contacts by e-mail when FTA One commenter identified several the grantee shall propose and identify a revises the grant’s status or inputs inadvertent omissions from the section useful life for the capital asset to be comments. FTA is looking at improving on real property. FTA has updated this purchased with Federal funds. FTA TEAM accordingly. In the meantime, section in accordance with the approval of the grant represents FTA FTA’s regional offices will make every Department’s Uniform Relocation Act concurrence of the final determination effort to contact grantees when regulations. of useful life for the purpose of project modifying a grant application or award. Two parties asked FTA to distinguish property acquisition. This in turn will Several parties offered comments on between rebuilding and overhauling a identify the useful life of the Federal the reporting requirements articulated vehicle or system. Accordingly, FTA has interest for the disposition of the project in proposed Circular 5010.1D. Please updated Circular 5010.1D to distinguish property in later years. Acceptable note that FTA has made its best effort between overhaul and rebuild. Overhaul methods to determine useful life to avoid duplicative reporting is performed as a planned or include but are not limited to: requirements. Moreover, FTA notes that concentrated preventative maintenance (a) Generally accepted accounting the reporting requirements may vary activity and is intended to enable the principles. depending on the size of the grantee, the rolling stock to perform to the end of its (b) Independent evaluation. type of funding, or the amount of original useful life. Rebuild is a capital (c) Manufacturer’s estimated useful funding a grantee receives. Please expense incurred at or near the end of life. contact the regional or metropolitan the useful life of rolling stock that (d) Internal Revenue Service office with questions regarding the results in a new useful life for the guidelines. applicability of the reporting rolling stock that is consistent with the extent of the rebuilding. (e) Industry standards. requirements of Chapter III. With One commenter asked FTA to clarify (f) Grantee experience. respect to requiring grantees to state the useful life of an asset in its grant when a grantee or recipient must return (g) The grantee’s independent auditor application, FTA is ensuring that it can insurance money that it receives from a who needs to concur that the useful life verify the use and disposition of that subrecipient. FTA’s Master Agreement is reasonable for depreciation purposes. asset throughout its useful life. in Section 19, Subsection i states that if (h) Proven useful life developed at a Another commenter identified several the recipient receives insurance Federal test facility. misnumbered sections in this chapter. proceeds as a result of damage or Useful Life of a fixed guideway FTA has corrected these errors. destruction to the project property, the electric trolley-bus with rubber tires A State DOT asked FTA to clarify recipient agrees to: (1) Apply those obtaining traction from overhead language regarding its Equal insurance proceeds to the cost of catenary has been revised to be 15 years Employment Opportunity programs to replacing the damaged or destroyed from previously proposed 18 years. apply to more than just transit agencies. Project property taken out of service, or One commenter stated that FTA’s FTA has modified Chapter III (2) Return to the Federal Government an proposal concerning vehicles removed accordingly. amount equal to the remaining Federal from service because of fire, collision, or The same commenter noted that the interest in the damaged or destroyed natural disaster inappropriately shifts National Transit Database Safety and Project property. risk to its grantees, noting that the Security Reporting requirement is Another commenter asked FTA to existing circular looks to the post-event exclusive to urban areas. FTA agrees clarify when a grantee should submit a value of the vehicle to measure the and has clarified this point. Project Management Plan (PMP) to FTA remaining Federal interest while the Another State DOT asked FTA to note as a prerequisite to grant approval. proposed circular would refer to the that there is no minimum vehicle According to FTA’s Project Management pre-event value. This commenter urged threshold for reporting in the Oversight rule, 49 CFR part 633, for all FTA to maintain the existing policy. nonurbanized program. FTA agrees and major capital projects, the grantee must FTA disagrees. The policy articulated in has modified Circular 5010.1D submit a PMP as part of its grant Circular 5010.1D is consistent with accordingly. application. FTA’s Master Agreement and current One commenter stated its Several commenters expressed FTA practice. Similar to Circular understanding that 49 U.S.C. concern that FTA proposes to include 5010.1D, Section 19.h(b)(1) of FTA’s 5334(h)(1)–(3) applies to transferring useful life determination in grant Master Agreement states that the fair property that has not met useful life agreements and that the minimum market value of project equipment and standards, and suggested that FTA threshold for such determinations is supplies shall be the value immediately amend the circular text to include this $5,000. FTA disagrees with these before the occurrence prompting the statement. FTA agrees and has modified commenters. According to the Common withdrawal of the equipment or Circular 5010.1D accordingly. Grant Rule, every asset over $5,000 must supplies from appropriate use. In the The same commenter noted that be accounted for. Indirectly, this means case of project equipment or supplies insurance proceeds set the current fair that every asset over $5,000 must have lost or damaged by fire, casualty, or market value of an asset and that the a useful life. natural disaster, the fair market value Federal share is based upon this shall be calculated on the basis of the number. FTA refers this commenter to E. Chapter V—Oversight condition of the equipment or supplies the following language from FTA’s Chapter V discusses FTA oversight. immediately before the fire, casualty, or Master Agreement: In the case of Project FTA evaluates grantee adherence to natural disaster, irrespective of the equipment or supplies lost or damaged program and administrative extent of insurance coverage. by fire, casualty, or natural disaster, the requirements through a comprehensive

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oversight program. FTA’s Master Rolling Stock Status Report. The use of FTA–2007–29125, or on the FTA Web Agreement specifies these requirements. this report is limited to disposing of a site: http://www.fta.dot.gov. Paper FTA determines compliance through vehicle that has met minimum useful copies of the circular may be obtained self-certification, oversight review and life and fair market value is greater than by contacting FTA’s Administrative audits, and site visits. FTA annually $5,000, disposing of a vehicle before it Services Help Desk, at 202–366–4865. completes an individual Grantee reaches minimum useful life, or FOR FURTHER INFORMATION CONTACT: Oversight Assessment Questionnaire, requesting a budget revision affecting James Harper, Director, Office of which serves as baseline information for vehicles. Procurement, Office of Administration, each grantee’s capacity to comply, and Issued in Washington, DC, this 22nd day Federal Transit Administration, 1200 the degree of the risk the grantee’s of September, 2008. New Jersey Avenue, SE., East Building, program may represent for the Federal James S. Simpson, Room E42–332, Washington, DC 20590, program. Based on this information, Administrator. phone: 202–366–1127, fax: 202–366– FTA makes decisions about which [FR Doc. E8–22891 Filed 9–29–08; 8:45 am] 3808, or e-mail [email protected] grantees will receive oversight reviews for issues regarding third party BILLING CODE 4910–57–P during the coming year. Regional staff contracting procedures and practices; or uses the information to develop regional Kerry L. Miller, Assistant Chief Counsel oversight plans and to allocate oversight DEPARTMENT OF TRANSPORTATION for General Law, Office of Chief resources within the region for the Counsel, Federal Transit upcoming fiscal year, which may Federal Transit Administration Administration, 1200 New Jersey include oversight reviews, regional Avenue, SE., East Building, Room E56– [Docket No. FTA–2007–29125] meetings, and/or regional site visits. 314, Washington, DC 20590, phone: One commenter asked FTA to add its 202–366–1936, fax: 202–366–3809, or Job Access Reverse Commute (JARC) Third Party Contracting Guidance: Notice of Final Circular e-mail, [email protected], for legal and New Freedom Programs to the list issues. of programs covered by State AGENCY: Federal Transit Administration Management Reviews. FTA only listed (FTA), DOT. Table of Contents programs for which it is authorized to ACTION: Notice of Availability of Final I. Background withhold a percentage for oversight Circular. II. Overview activities. FTA retains the right to III. Chapter-by-Chapter Analysis review any of its programs through State SUMMARY: The Federal Transit A. Chapter I—Introduction and Role of the Management Reviews. Administration (FTA) has issued FTA Federal Transit Administration B. Chapter II—Applicability F. Chapter VI—Financial Management Circular 4220.1F, ‘‘Third Party C. Chapter III—The Recipient’s Contracting Guidance’’ to provide Responsibilities Chapter VI discusses the proper use comprehensive guidance to grantees and D. Chapter IV—The Recipient’s Property and management of Federal funds FTA recipients of cooperative agreements and Services Needs and Federal expects from its grantees. Financial (recipients) to implement third party Requirements Affecting Those Needs management is one of the most contracting requirements that apply to E. Chapter V—Sources important practices in the management FTA assisted procurements. F. Chapter VI—Procedural Guidance for of Federal funds. Open Market Procurements DATES: Effective Date: The effective date One commenter asked FTA to define G. Chapter VII—Protests, Changes and of this circular is November 1, 2008. the Cash Basis of Accounting and its Modifications, Disputes, Claims, permissible use. Definitions have been ADDRESSES: A copy of this circular and Litigation, and Settlements comments and material received from 1. Appendix A—References added. 2. Appendix B—FTA Regional and Another commenter asked FTA to the public, as well as any documents indicated in the preamble as being Metropolitan Contact Information clarify whether a specific form is 3. Appendix C—Third Party Contracting required for documenting internal available in the docket, are part of Checklists controls. FTA notes that the form docket FTA–2007–29125 and are 4. Appendix D—Matrices of Third Party checklist provided in Circular 5010.1D available for inspection or copying at Contract Provisions the Docket Management Facility, U.S. is not mandatory. FTA has provided it I. Background to those transit properties that do not Department of Transportation, 1200 currently do their own testing. FTA has New Jersey Ave., SE., West Building This notice provides a summary of modified Circular 5010.1D to make clear Ground Floor, Room W12–140, FTA’s Third Party Contracting Guidance that this form is a tool, not a Washington, DC between 9 a.m. and 5 final circular, and addresses comments requirement. p.m., Monday through Friday, except received in response to the FTA’s Federal holidays. September 28, 2007, Federal Register G. Appendices You may retrieve the circular and notice (72 FR 55630). FTA’s most recent One commenter noted that Appendix comments online through the Federal enabling legislation, the Safe, C, Guide for Preparing an Appraisal Document Management System (FDMS) Accountable, Flexible, Efficient Scope of Work, is excellent guidance at Web site: http://regulations.gov. Enter Transportation Equity Act: A Legacy for and asked FTA to include a review the docket number FTA–2007–29125 in Users (SAFETEA–LU), Public Law 109– appraisal scope of work. FTA agrees the search field. The FDMS is available 59, August 10, 2005, as amended by the with this comment and has indicated 24 hours each day, 365 days each year. SAFETEA–LU Technical Corrections that the Guide for Preparing an Electronic submission and retrieval help Act, 2008, Public Law 110–244, June 6, Appraisal Scope of work can also be and guidelines are available under the 2008, added new third party contracting used for a review appraisal. help section of the Web site. requirements for FTA recipients. Other Appendix D, Fleet Status Report, has This notice does not include the final Federal laws and regulations have also been renamed and revised so as to not circular. An electronic version of the amended certain Federal requirements be confused with the Fleet Status Report circular may be found on the docket: or added new Federal requirements screen in TEAM. The new name is http://regulations.gov, docket number affecting third party procurements

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undertaken by FTA recipients. To 1. Too Much Information and Appendix C adds checklists to remind address these changes, FTA is re-issuing Complexity the recipient of the many Federal FTA Circular 4220.1E, issued June 19, Several commenters objected to the requirements that might apply to its 2003, and last amended in February of length and complexity of the proposed procurement, with references to the 2004. circular, expressing a preference for the various sections, subsections, FTA published proposed FTA ‘‘tight structure and focused approach’’ paragraphs, and subparagraphs of Circular 4220.1F in the Federal of the previous circular. We understand Chapters II through VI. A new Appendix Document Management System (FDMS) that a streamlined list of requirements D adds clause matrices. After a recipient at Web site: http://regulations.gov, and can be desirable. Because we are gains a clear understanding of the in the FTA Web site: http:// required by law to present all matters meaning of the terms used in the www.fta.dot.gov. FTA published a that may have a significant effect on circular, what FTA may do, and the notice of availability in the Federal private interests for public comment, we types of acquisitions covered by the Register (72 FR 55630) on September have included as many subjects as circular, the recipient can use the later 28, 2007, seeking public comment on possible that might directly or indirectly chapters of the circular as reminders of the proposed circular. FTA established affect a specific FTA assisted the many Federal requirements that a November 27, 2007, deadline for procurement. FTA assisted affect various acquisitions, alternatives comments, but extended the comment procurements are subjected not only to to the open market that may provide the property and services that are sought, period to February 15, 2008, as many Federal procedural requirements, and the different procedures to be used announced in the Federal Register on but also to many Federal requirements for the various methods of procurement. October 31, 2007 (72 FR 61708). about the nature of property and Ten commenters responded to FTA’s Specifically, we are concerned that services that may be acquired and the the recipient remains aware of the many request for comments in response to that prospective contractors that might seek notice and the proposed circular. Federal requirements that could affect to provide them. FTA lacks authority to the contractor that may be selected and Commenters included four State issue blanket waivers to those Federal departments of transportation, four the nature of what is being required. If requirements. concentration is focused mainly on regional transportation authorities, one The circular’s purpose is to provide acquisition procedures, it can be easy to trade association, and one private for- guidance on how a recipient might lose sight of other Federal requirements profit firm. comply with the many requirements that may prove difficult or expensive to This notice does not include the final affecting its procurements that administer if considered too late. While circular. An electronic version of the accompany the use of Federal assistance these matters were briefly noted in circular may be found on the docket: awarded by FTA. If the recipient is former FTA third party contracting http://regulations.gov, docket number prepared to forgo the use of FTA circulars, mostly by reference to the FTA–2007–29125, or on the FTA Web assistance to support a procurement, Master Agreement, we disagree that they site: http://www.fta.dot.gov. Paper then the circular’s guidance will not are beyond the scope of a third party copies of the circular may be obtained apply to that procurement. contracting procurement circular. For by contacting FTA’s Administrative Nevertheless, we have attempted to example, a prospective contractor Services Help Desk, at 202–366–4865. reduce the circular’s complexity and should be aware of the implications of make it more user-friendly by II. Overview of the Circular entering into contracts financed with consolidating related information in FTA assistance, such as complying with We recognize that this edition ‘‘F’’ of seven separate chapters. Chapter I our Buy America and Charter Service FTA Circular 4220.1 is substantially describes the context in which the regulations, government-wide different from the previous FTA guidance takes place and FTA’s role in environmental protections, among Circular 4220.1E, ‘‘Third Party third party contracting. Chapter II others, before submitting a bid or Contracting Requirements,’’ 06–19–03. designates to whom and to what the proposal in response to a recipient’s The final FTA Circular 4220.1F (the circular applies. Chapter III outlines the solicitation. Also, the recipient may final circular) does contain much more recipient’s general procurement wish to consider the various sources information and guidance than was responsibilities. Chapter IV describes from which the property or services it available in the previous circular, which the various Federal requirements that seeks may be obtained. focused mostly on Federal may affect the eligibility of prospective One commenter complained that the requirements. In part, this results from contractors to participate, the property proposed circular would no longer be the SAFETEA–LU amendment to 49 and services to be acquired, the useful as a training document because it U.S.C. Section 5334 adding a new limitations imposed on the use of the is too complex. We disagree. We believe subsection ‘‘(l)’’ requiring FTA to property or services acquired, as well as the final circular with its focus on publish for notice and comment any the acquisition procedures to be used. consolidating topics, providing more ‘‘guidance document * * * that * * * Chapter V lists the various sources from guidance and information, coupled with imposes obligations, produces which the recipient might acquire checklists of requirements that might be significant effects on private interests, or property and services. Chapter VI overlooked if contract awards need to be effects a significant change in existing describes the procedural requirements expedited, will far better serve the policy.’’ The final circular now that apply to the various procurement individuals to be trained. describes many procedures and methods. Chapter VII closes by One commenter asked for review aids processes that will assist the recipient in providing guidance on resolving such as worksheets, clause and complying with the many Federal contract difficulties that might emerge. certifications matrices, and model statutory and regulatory requirements Appendix A lists the various laws, clauses. We agree that these aids could that can affect third party procurements. regulations, executive orders, and be helpful, and have included a new Many commenters expressed the directives referenced in the circular. Appendix C with checklists including following views about the format and Appendix B provides an updated list of references to specific parts of the contents of the proposed circular as a FTA regional and metropolitan offices circular. FTA has also prepared a new whole: with contact information. A new Appendix D with matrices identifying

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the various clauses and contract various participants in an FTA assisted assistance that would have been provisions that might be required. For project, we suggest that you review provided to the recipient. In summary, examples of model clauses, we refer you those documents. the recipient is ultimately responsible to the FTA’s Best Practices Procurement Because this circular consists of a for compliance with Federal Manual (BPPM), which we are planning broad range of guidance to FTA requirements. If the recipient chooses to to update in the near future. We caution, recipients, some of that guidance will take an action that is later determined however, that while these checklists and simply re-state a Federal law or to violate Federal law or regulations, matrices will be current on the day the regulation, while other guidance will then it can expect that the Federal final circular is issued, later enacted provide one or more methods of Government will take remedial action. Federal laws and regulations may not be complying with an underlying Federal 3. Links to Relevant Documents Needed reflected in timely amendments to the law or regulation, focusing on the terms circular. FTA will attempt to update the of the FTA law or regulation to clarify One commenter requested us to add circular as necessary, but recommends what is needed for compliance. Doing so links to essential documents referenced that the recipient check the Master will result in ‘‘blurring of lines between in the proposed circular. We are unable Agreement and the FTA Web site for legal and regulatory requirements, to do so at this time, although we have information about any new Federal guidance, and commentary,’’ as noted included on-line addresses of certain requirements. by one commenter. Throughout the final resources that may be difficult to find. circular, however, FTA has attempted to Be aware, however, that these addresses 2. Separate Requirements From identify those provisions that constitute may change as Web sites change. Guidance Federal statutory or regulatory In summary, we recognize that One commenter asked whether the requirements. Information not implementing FTA’s third party circular only provides guidance to FTA designated as a Federal statutory or contracting guidance can be recipients or whether it intends to regulatory requirement in nearly all complicated, and that many disparate provide mandatory directions or cases will be compliance guidance. Federal requirements will apply. We requirements when financing third FTA is willing to give serious expect to continue to learn from your party contracts with Federal assistance. consideration to alternative ways a experience in administering the many Several other commenters requested us recipient may comply with the Federal Federal requirements that apply to third to clearly identify distinctions between laws and regulations that apply to FTA party contracting. We will be Federal requirements and guidance or programs. In some situations, FTA is monitoring the usefulness of this recommendations or separate Federal familiar with only one method of guidance, and we continue to be open third party procurement requirements achieving compliance, and then only to comments and suggestions. We value from guidance. that method is listed in the final input from our recipients and others, FTA considers this circular to be circular. Other situations lend and we urge you to communicate with FTA’s official guidance for themselves to various methods of FTA staff at our headquarters and implementing Federal requirements. compliance. In summary, an FTA regional offices regarding questions and This guidance consists of FTA’s recipient should review the Federal concerns you may have and successes recommendations for achieving laws and regulations cited in connection you experience. compliance with the various Federal with each subject of concern to learn 4. Notification of Changes to the Final requirements that might apply to a what requirements apply to it and to Circular recipient or its procurement. The actual other participants in its project. To Federal requirements are contained in determine what is required of FTA that One commenter recommended that the provisions of Federal statutes or in might affect third party procurement, FTA provide notice and comment about promulgated Federal regulations, and in the recipient may also review any all amendments or updates to the final many cases impose binding Executive orders and other Federal circular, even if FTA later amends or requirements on participants in FTA directives referred to in connection with updates the final circular because of assisted procurements. Appendix A each subject of concern as well as the revisions to other FTA or other Federal contains a list of many of those laws and relevant Federal laws and regulations. regulations or guidance that has regulations applicable to FTA assisted FTA’s BPPM, while not official FTA undergone notice and comment. procurements. Executive Orders, guidance, includes more extensive FTA disagrees. When the revision of directives, and similar publications are examples of procedures, processes, or a circular or regulation requires the binding on the Executive Branch of the ways in which compliance with specific Federal Government to provide an U.S. Government, which must Federal requirements might be opportunity for notice and comment, implement them. While the Executive achieved. there is no need to satisfy that Orders and other directives to Federal A recipient seeking methods of requirement again just to update a agencies do not apply directly to parties complying with a Federal requirement reference to that revised document. FTA or individuals outside the Federal other than those described in the final is required by 49 U.S.C. 5334(l) to Government, some provisions of those circular or in the BPPM should contact provide notice and comment and Orders or directives require the FTA employees and officials in its otherwise follow applicable Federal cooperation of parties that are not part region, particularly because FTA is not rulemaking procedures about any of the Executive Branch of the U.S. authorized to provide Federal assistance change that ‘‘grants rights, imposes Government. Consequently, FTA must for third party procurements that do not obligations, produces significant effects gain the consent of the relevant parties comply with Federal requirements. on private interests, or effects a to ensure compliance with the While many recipient actions do not significant change in existing policy.’’ Executive Orders and Federal directives. expressly require approval under FTA, however, need not provide notice FTA does this through the provisions of Federal law or regulation, if FTA finds and comment when making minor its Master Agreement incorporated by that a third party procurement fails to technical corrections, such as updating reference in each FTA grant agreement comply with Federal requirements, then legal citations and ensuring conformity and FTA cooperative agreement. To FTA may need to withdraw funding, of its circulars with the latest Federal determine what is required of the obtain a refund, or offset future Federal regulations or guidance that has

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undergone notice and comment. FTA Section 5—Definitions statement,’’ and recommended that it be will notify the public of those changes The fifth section of Chapter I contains replaced with ‘‘written sanction * * * as they occur. definitions of various terms used in the by.’’ FTA disagrees with this FTA will also post updates on its Web final circular. Several commenters recommendation because not every site: http://www.fta.dot.gov. The submitted recommendations, including ‘‘approval, authorization, concurrence, recipient should register for requests for changes in some of the [or] waiver’’ constitutes a sanction. We notifications when FTA issues Federal proposed definitions and requests for have, however, replaced the word Register notices or new guidance. To additional definitions. ‘‘conscious’’ with ‘‘deliberate.’’ register for notifications, go to the FTA From FTA Circular 4220.1E, we have Subsection 5.b—Best Value public Web site: http://www.fta.dot.gov. retained the definitions of ‘‘Best Value,’’ In the middle of the page will be a box ‘‘FTA,’’ ‘‘State,’’ and ‘‘Third Party Commenters submitted four with the following message: Contract,’’ modified to accommodate recommendations for revisions to the Sign up for e-mail updates comments we received. definition of ‘‘Best Value.’’ We have The Federal Transit Administration now From the ‘‘Definitions’’ subsection of accepted those recommendations and offers e-mail updates on various the proposed circular, we have retained have redrafted the definition to topics including Federal Register definitions of ‘‘Approval, Authorization, emphasize that best value is one type of notices, SAFETEA–LU and others. Concurrence, Waiver,’’ ‘‘Common Grant competitive, negotiated procurement Please click on the link above to begin Rules,’’ ‘‘Cooperative Agreement,’’ process with award determined on the the sign-up process. ‘‘Design-Bid-Build Project,’’ ‘‘Design- basis of other factors important to the Build Project,’’ ‘‘Grant,’’ ‘‘Master recipient in addition to cost or price 5. Editorial Comments Agreement,’’ ‘‘Non-Governmental factors. In this subsection, we have A few commenters recommended Recipient,’’ ‘‘Electronic Commerce (E- replaced terms used in connection with brief descriptions of citations, and noted Commerce),’’ ‘‘Property,’’ ‘‘Recipient,’’ sealed bid procurements, which editorial discrepancies and and ‘‘Revenue Contract,’’ modified to implicitly require award to the low typographical errors. We agree with accommodate comments we received. bidder, with terms suitable for most of their recommendations and We have separated the definitions of negotiated procurements. We have also have made appropriate changes in the ‘‘State,’’ ‘‘Local Government’’ and included a statement that the evaluation final circular. ‘‘Indian Tribal Government’’ from the factors for a specific procurement definition of ‘‘Governmental Recipient’’ should reflect the subject matter and the III. Chapter-by-Chapter Analysis without changing the meaning of those elements that are most important to the This section briefly describes the terms. recipient, and a clarification that our list contents of each chapter of the final We have also added definitions of of evaluation factors appearing in the circular and addresses public comments ‘‘Cardinal Change,’’ ‘‘Change Order,’’ proposed circular are not an exhaustive received in response to its September ‘‘Constructive Change,’’ ‘‘Force list of acceptable evaluation factors. 28, 2007, and October 31, 2007, notices. Account,’’ ‘‘Full and Open Subsection 5.c—Cardinal Change Competition,’’ ‘‘Joint Procurement,’’ A. Chapter I—Introduction and ‘‘Project Labor Agreement (PLA),’’ One commenter sought clarification of Background ‘‘Public Transportation,’’ ‘‘State or Local terms pertaining to ‘‘changes.’’ To Chapter I is an introductory chapter Government Purchasing Schedule or remedy misunderstandings, we have with general information about FTA and Purchasing Contract,’’ ‘‘Unsolicited added a definition of ‘‘Cardinal how to contact us. It also provides a Proposal,’’ and ‘‘Value Engineering,’’ to Change.’’ brief review of FTA’s authorizing preclude misunderstanding of those Subsection 5.d—Change Order legislation, along with information subjects as they are discussed in the about Grants.gov. It includes definitions final circular. To remedy misunderstandings, we applicable to third party contracting, As stated in the preamble to the have also added a definition of ‘‘Change and describes FTA’s role in third party proposed circular, we have substituted Order.’’ procurements. While contact a definition of ‘‘Recipient’’ for the Subsection 5.f—Constructive Change information about FTA officials is definition of ‘‘Grantee’’ to encompass identified in the various chapters of the both recipients of Federal grants and We have also revised the definition of final circular, if you have a question and recipients of cooperative agreements. ‘‘Constructive Change’’ in view of the an FTA official is not identified as a We transferred the term ‘‘Piggybacking’’ same request for clarification. contact source, you should contact the included in previous FTA Circular Subsection 5.h—Design-Bid-Build Regional Administrator for the region in 4220.1E from the Definitions section of Project which the project is administered or the Chapter I to the Chapter V discussion of Associate Administrator for the Program ‘‘Assignment of Contract Rights.’’ We Another commenter requested that we under which a headquarters project is also transferred the term ‘‘tag-on’’ remove the term ‘‘at risk’’ in the administered. included in previous FTA Circular definition of ‘‘Design-Bid-Build Project’’ when referring to contracting for the Sections 1 Through 4—Description of 4220.1E from the Definitions section of Chapter I to the Chapter V discussion of construction portion of the project. We FTA, Its Authorizing Legislation, agree, and have made that change. Contact Information, and General ‘‘Cardinal Changes.’’ Background Subsection 5.a—Approval, Subsection 5.i—Design-Build Project We have edited the first four sections Authorization, Concurrence, Waiver The same commenter also requested of Chapter I, but they otherwise remain In the definition of ‘‘Approval, us to broaden the definition of ‘‘Design- substantially similar to those of the Authorization, Concurrence, Waiver,’’ Build Project’’ to include projects other proposed circular provided in appearing for the first time in the than transportation systems or operable connection with FTA’s September 27, proposed circular, one commenter segments. We agree, and have made the 2007, Federal Register notice. objected to the term ‘‘conscious written change.

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Subsection 5.k—Force Account Subsection 5.u—Project Labor Section 6—FTA’s Role Agreement (PLA) One commenter’s statements about The sixth section discusses FTA’s role our involvement in a recipient’s We have added a definition of and responsibilities with regard to third decision to use its workforce to perform ‘‘Project Labor Agreement’’ consistent party procurements. The subsections project work prompted us to add a with the General Services hereunder addressing third party definition of ‘‘Force Account.’’ Administration’s (GSA) definition of contract reviews, procurement system that term. reviews, and training and technical Subsection 5.m—Full and Open assistance continue to be substantially Competition Subsection 5.v—Property similar to those of FTA Circular One commenter’s statements We have amended our definition of 4220.1E. ‘‘Property’’ to replace ‘‘real property’’ prompted us to add a definition of ‘‘Full Subsection 6.a—Reliance on the with ‘‘land and buildings, structures, or and Open Competition.’’ Recipient’s Self-Certification appurtenances on land.’’ Subsection 5.p—Indian Tribal For consistency with the Common Government Subsection 5.w—Public Transportation Grant Rules, the final circular retains We separated the definition of We have added a definition of ‘‘Public the proposed circular’s discussion of ‘‘Indian Tribal Government’’ from the Transportation’’ in view of the self-certification. Specifically, the DOT’s definition of ‘‘Governmental Recipient.’’ amendment to the SAFETEA–LU Common Grant Rule for governmental Technical Corrections Act, which recipients, 49 CFR Part 18, permits Subsection 5.q—Joint Procurement expressly restores the exclusion of governmental recipients to request self- We have added a definition of ‘‘Joint ‘‘sightseeing service’’ from the certification, but does not require them Procurement’’ to differentiate it from definition of ‘‘public transportation’’ for to do so, nor does that Common Grant ‘‘State or Local Purchasing Schedule or purposes of 49 U.S.C. Chapter 53. Rule permit FTA to require self- certification. The DOT’s Common Grant Purchasing Contract.’’ Subsection 5.x—Recipient Rule for non-governmental recipients, Subsection 5.r—Local Government Another commenter requested us to 49 CFR Part 19, has no provisions We separated the definition of ‘‘Local include an explanation in our definition addressing self-certification. Government’’ from the definition of of ‘‘Recipient’’ that a ‘‘Recipient’’ does Subsection 6.f—Master Agreement ‘‘Governmental Recipient.’’ not include a third party contractor or third party subcontractor. We agree, and Two commenters requested changes Subsection 5.s—Master Agreement have made the addition requested. to our discussions of FTA’s Master Agreement. In this subsection, we are One commenter recommended that Subsection 5.y—Revenue Contract we change the definition of ‘‘Master not merely defining the Master Agreement’’ to conform to our One commenter requested us to Agreement, but are providing more explanation in the FTA Master reconcile the meanings of ‘‘Revenue information about it and how it can best Agreement. We agree, and have made Contract’’ as used throughout the be used. proposed circular. We agree, and have that change. Subsection 6.g—‘‘Best Practices revised the definition for consistency Procurement Manual (BPPM)’’ Subsection 5.t—Non-Governmental with the meaning of the term as used in Recipient Chapter II, subparagraph 2.b(4). One recipient asked us to clarify the One recipient noted that the Subsection 5.aa—State or Local purpose of the BPPM. We have revised definition of ‘‘non-governmental Government Purchasing Schedule or this subsection that describes the BPPM recipient’’ excludes private businesses Purchasing Contract to emphasize that the BPPM is not except at FTA’s discretion, but does not official FTA guidance applicable to the add a definition of private business. We We have added a definition of ‘‘State recipient, but instead is a compilation of have used the term ‘‘non-governmental or Local Government Purchasing suggested procedures, methods, and recipient’’ to mean ‘‘recipient’’ as Schedule or Purchasing Contract’’ to examples the recipient may use as it defined in Department of Transportation differentiate it from ‘‘Joint sees fit. Another commenter requested (DOT) regulations, ‘‘Uniform Procurement.’’ us to update the BPPM so that it will be a reliable resource. We are planning to Administrative Requirements for Grants Subsection 5.bb—Third Party Contract and Agreements with Institutions of update the BPPM, but are uncertain Higher Education, Hospitals, and Other One commenter requested that the whether we will be able to maintain it Non-Profit Organizations,’’ 49 CFR Part definition of ‘‘Third Party Contract’’ be so that it will always reflect accurate 19. That definition includes the term amended specifically to include recommendations. ‘‘commercial organizations,’’ which we purchase orders and credit card Subsection 6.h—Third Party Contracting interpret to mean ‘‘private businesses.’’ purchases. We agree, and have made the Helpline Thus we have not defined ‘‘private change. We have included a better Web business’’ for purposes of the final Subsection 5.cc—Unsolicited Proposal circular. FTA intends to inform address for FTA’s Third Party recipients that it will reserve the right We have added a definition of Contracting Helpline. ‘‘Unsolicited Proposal’’ consistent with to apply the provisions of 49 CFR Part Subsection 6.i—‘‘Frequently Asked FAR standards. 19 to all recipients not covered by 49 Questions’’ CFR Part 18. As provided in those Subsection 5.dd—Value Engineering regulations, the Federal Acquisition We have included a reference to the Regulation (FAR) cost principles One commenter’s statements FTA Web site for ‘‘Frequently Asked applicable to for-profit organizations prompted us to add a definition of Questions’’ about third party will apply to commercial organizations. ‘‘Value Engineering.’’ contracting.

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B. Chapter II—Applicability laws and regulations would apply to the project, and applies to alterations or We have restructured Chapter II to project, and the recipient would need to repairs to buildings and facilities on the consolidate provisions pertaining to the take actions that would meet the land when it was acquired or made various categories of recipients and their requirements of all participating available for project use. agencies. projects. We expanded the chapter to Paragraph 2.b(2)—Operations Contracts include additional paragraphs to Paragraph 2.a(5)—Third Party Subparagraph 2.b(2)(b)—Operations respond to unanticipated comments to Contractors and Subcontractors Contracts Financed Entirely Without the proposed circular. As a result, we Subparagraph 2.a(5)(b)—Effect of FTA Assistance have transferred some provisions of the Federal Requirements proposed circular to this chapter. As stated in the notice of availability Much of this chapter retains One commenter appears to question of proposed FTA Circular 4220.1F, FTA provisions substantially similar to their whether federally required contract has been considering whether and to counterpart provisions within FTA clauses must flow down to third party what the extent its third party Circular 4220.1E or its footnotes, with contractors and subcontractors because contracting provisions should apply to important exceptions discussed below: the circular does not apply directly to an FTA recipient’s acquisitions financed them. We have included a new entirely without FTA assistance. Section 1—Legal Effect of the Circular paragraph addressing the status of third For many years, FTA has taken the After reading many of those party contractors and subcontractors position that ‘‘one dollar taints all,’’ a comments, we have become aware that and have informed recipients that some policy in which FTA required a many of our recipients misunderstand Federal laws and regulations will, in recipient to apply FTA requirements to the legal implications of FTA’s effect, require the compliance of their all its other operations contracts, circulars. As a result, we included a third party contractors and including those contracts financed new section at the beginning of Chapter subcontractors as well as the recipient. entirely without Federal assistance, if II to explain that the final circular, In those cases, the recipient must the recipient uses any part of its FTA although official FTA guidance, is not a include adequate provisions in their formula assistance to support any Federal mandate comparable to a solicitation documents and third party operation contract. Because recipients Federal law or regulation. contracts. in large urbanized areas have not been authorized to use Urbanized Area Section 2—Applicability of the Circular Subsection 2.b—Third Party Contracts Formula assistance for operations, Subsection 2.a—Participants in FTA Paragraph 2.b(1)—Capital Contracts operations contracts they can Assisted Procurements Subparagraph 2.b(1)(b)—Art demonstrate were financed entirely Paragraph 2.a(1)—Recipients of FTA One commenter asked us to update without FTA assistance have not been Grants and Cooperative Agreements the procurement requirements in FTA required to comply with FTA requirements. In contrast, recipients in Subparagraph 2.a(1)(a)—States Circular 9400.1A, ‘‘Federal Transit Administration Design and Art in smaller urbanized areas currently must As stated in the preamble to proposed Transit Projects,’’ dated 06–09–95. FTA apply FTA requirements to all their FTA Circular 4220.1F, the previous FTA intends to do so after the end of Fiscal operations procurements, whether or Circular 4220.1E inadvertently Year 2008. not they are financed with FTA misstated FTA’s long-standing practice assistance, if they use any of their in administering its State managed Subparagraph 2.b(1)(c)—Over-the-Road Urbanized Area Formula assistance or programs when it took the position that Bus Accessibility Program Nonurbanized Area Formula assistance only States and State instrumentalities One commenter asked whether the to support even one operations contract. could use State procedures when exemption from the proposed circular’s FTA did make exceptions for undertaking procurements financed provisions applies only to FTA’s Over- Congestion Mitigation and Air Quality with FTA’s funding for State managed the-Road Bus Accessibility Program or (CMAQ) and Job Access/Reverse programs. We have retained the new whether all over-the-road bus Commute (JARC) assistance used for language of the proposed circular, procurements are also exempted. We operations, determining that if a which correctly states OMB’s decision have revised the proposed circular to recipient could demonstrate which that FTA governmental subrecipients of clarify that the exemption applies only operations contracts CMAQ or JARC States may use State procurement to the Over-the-Road-Bus Accessibility assistance supported, then the procedures, but non-governmental Program and does not include over-the- recipient’s other entirely privately recipients of States must use the road buses acquired through other FTA financed operations contracts need not procurement procedures of the Common programs. comply with FTA requirements. Now Grant Rule for non-governmental that SAFETEA–LU changed the JARC recipients. Subparagraph 2.b(1)(d)—Real Property program from a discretionary program to Four commenters pointed out a formula program, FTA must determine Paragraph 2.a(3)—Recipients of Both apparent inconsistencies pertaining to whether to impose its procurement Federal Assistance Awarded by FTA the application of the proposed circular requirements on a recipient’s operations and Funds Provided by Another Federal to real property. While we have left the contracts not financed with Federal Agency definition of ‘‘Property’’ to include ‘‘real assistance if the recipient uses its While there is a general property,’’ we agree that clarifications formula JARC funds for operations. understanding that FTA requirements are needed and have revised the FTA also provided an exception for apply to FTA assisted procurements, paragraph pertaining to real property to recipients in large urbanized areas to one commenter asked what Federal emphasize that the final circular does exempt all their operations contracts requirements would apply if another not apply to the purchase of land and from FTA requirements provided they Federal agency were also providing existing facilities, but does apply to are able to trace their use of preventive funding for the project. Our response is construction of new buildings and maintenance funding to specific that the requirements of each agency’s facilities on the land acquired for the contracts. If, however, they are unable to

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do so, and use FTA assistance for acquisitions, including operations financed entirely without FTA general support of preventive acquisitions, from acquisitions financed assistance. In exempting the recipient maintenance contracts, then FTA entirely without FTA assistance, and from FTA requirements that have in the requirements will apply to all their then ask those recipients that are past affected its procurements, however, operations contracts. segregating their acquisitions to describe we caution the recipient that FTA At the same time, FTA has been the methods by which they are tracking cannot exempt a recipient from other reviewing its policies pertaining to its sources of funding. FTA could reserve Federal requirements that may apply recipients’ use of other FTA assistance the right to disallow the practice if the irrespective of whether or not the that finances operations contracts in recipient’s recordkeeping methods are acquisition were financed with Federal connection with other project activities. deficient. States could monitor those assistance. An example would be Among other programs in which FTA practices for compliance by their Federal requirements for accessibility supports the costs of project-related recipients that qualify to use State for individuals with disabilities that operations are the New Freedom procedures. would apply to a recipient irrespective Program, 49 U.S.C. 5317, the Elderly In considering its proposal to remove of whether or not Federal assistance Individuals and Individuals with FTA’s procurement requirements from were made available for an activity Disabilities Program, 49 U.S.C. 5310, the operations contracts financed with FTA undertaken by the recipient. FTA Elderly Individuals and Individuals formula assistance, FTA is aware that assisted procurements, however, must with Disabilities Pilot Program, 49 doing so might diminish contracting comply with all applicable Federal U.S.C. 5310 note, and the National opportunities for some disadvantaged requirements. Research Program, 49 U.S.C. 5312(a), all business enterprises (DBE). To preclude of which involve some recipients or that result, FTA has emphasized its Paragraph 2.b(3)—Preventive subrecipients that receive only a small position that a recipient required by Maintenance Contracts portion of their financial expenses from DOT regulations, ‘‘Participation by In the paragraph pertaining to the FTA. Disadvantaged Business Enterprises in application of FTA requirements to FTA expressly sought comments Department of Transportation Financial preventive maintenance contracts, one about the extent to which FTA Assistance Programs,’’ 49 CFR Part 26, commenter asked us to identify requirements should be applied to a to have a DBE program may not ‘‘discrete.’’ Rather than defining recipient or subrecipient’s operations structure its operations expenditures (or ‘‘discrete,’’ we have substituted the term contracts financed entirely without other expenditures) in a manner that ‘‘separate and distinct’’ in the final Federal assistance. FTA also sought removes an unreasonable proportion of circular. comments on the extent of agency contracts that could have been Paragraph 2.b(4)—Revenue Contracts operating expenses that are not related performed by DBEs from its DBE to public transportation but must program. Accordingly, we expressly One commenter objected to an FTA comply with FTA procurement sought comments estimating the requirement that revenue contracts be requirements under the concept that one impacts on DBE participation that might awarded ‘‘utilizing competitive dollar of FTA operating assistance accompany FTA’s proposed policy procedures and principles,’’ asking brings an agency’s entire operating change that would permit all recipients instead that we reinstate the distinction budget under the FTA requirements. to separate their FTA assisted between situations that offer Specifically, FTA requested comments operations contracts from their other unrestricted access to similar users and on the rationale for excluding other operations contracts receiving no FTA situations that can provide only limited operating contracts from the assistance. However, we did not receive access to similar users. We agree, and applicability of FTA requirements. any comments directly addressing have made that change in the final Those that commented overwhelmingly prospective adverse impacts on DBE circular. urged FTA to exempt all acquisition participation that might result from that Paragraph 2.b(6)—Public-Private financed without any Federal assistance change. Partnerships from Federal requirements. Most One commenter advised that applying commenters believe imposing Federal DBE requirements broadly to all One commenter asked us to describe requirements on acquisitions not procurements might well invalidate the or define the contract delivery financed with Federal assistance to be entire DBE program. FTA does not arrangements or project delivery overbroad, if not unauthorized. intend to require each FTA assisted systems listed in the proposed circular FTA also asked for examples of how procurement to be included in a in connection with public-private operating expenses could be tracked and recipient’s DBE program. Nevertheless, partnerships (PPPs). Because we did not managed so that FTA assisted expenses a recipient that enters into a third party want to duplicate information could be segregated from other contracts for operations or planning previously published, we have included operating costs. One commenter must comply with the requirements of a reference to the FTA ‘‘Notice of explained that many accounting and the DBE regulations. Therefore, FTA establishment of Public-Private bookkeeping systems are generally maintains that a recipient required to Partnership Pilot Program; solicitation capable of identifying cost allocations have a DBE program may not structure of applications,’’ 72 FR 2583–2591, sufficiently thoroughly so that the its operations expenditures (or other January 19, 2007, which includes a funding sources of each contract can be expenditures) in a way so that an description of the various contract readily identified. Because a variety of unreasonable proportion of contracts delivery arrangements or project accounting systems can identify funding that could be performed by DBEs are delivery systems in the context of PPPs. sources, the commenter asked FTA not removed from its DBE program. One commenter proposed that we to impose a uniform accounting system After considering the comments we designate as PPPs only those that might be expensive to implement. received, FTA has determined not to partnerships that include both project The commenter also pointed out that require any FTA recipient to apply FTA delivery and operations. FTA disagrees. FTA could monitor that process by statutory and regulatory requirements to Structured in multiple forms, PPPs can asking recipients to state whether or not acquisitions that the recipient can vary greatly according to the scope of they are segregating federally assisted demonstrate conclusively it has been responsibility and degree of risk

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assumed by the private partner for FTA assisted property, we have not Paragraph 3.c(2)—Conflicting Federal project activities. The same commenter imposed that mandate. However, when Requirements pointed out that design-build (with or an arranger is compensated with One commenter asked which FTA without a warranty) and construction proceeds derived from the use of FTA official or officials should be notified of manager at risk are variations on the assisted property, we have stated our conflicting Federal laws and regulations design-bid-build method of project expectation that the recipient would use when more than one Federal agency delivery. We agree that design-build competitive procedures to select its provides support for an FTA assisted (with or without a warranty) and arranger. In addition, one commenter project. The final circular advises the construction manager at risk are project recommended that FTA strengthen recipient to notify the FTA Chief delivery systems but consider that conflict of interest procedures Counsel in writing. projects with those attributes can applicable to arrangers to ensure that an constitute a PPP because the private Section 4—State and Local Laws and partner or partners undertake the arranger does not personally benefit by Regulations recipient’s function of selecting the using his or her company or other companies in which he or she has a Subsection 4.b—Conflicts Between construction firm, and assume the risk Federal Requirements and State or Local financial interest. In this matter, FTA of delivering the entire project. Requirements In all eight categories of PPPs we have believes it appropriate to rely on the identified, the private partner recipient’s conflict of interest The same commenter also asked who undertakes in part the duties usually requirements and procedures to prevent should be notified when conflicting performed by the recipient and assumes unfair dealing. Federal and State requirements apply to some of the recipient’s financial risk. a project. Our response is that the Moreover, FTA’s ‘‘Notice of Paragraph 2.b(8)—Force Account recipient should notify the Regional Counsel for the region in which the establishment of Public-Private One commenter recommended that Partnership Pilot Program; solicitation project is being administered or the we clarify that the final circular does Assistant Chief Counsel for General Law of applications,’’ 72 FR 2583–2591, not apply to a recipient’s force account January 19, 2007, expressly for those projects administered by FTA work. We agree, and have added a acknowledges all eight types of PPPs headquarters staff. paragraph stating that the final circular’s listed in the proposed circular. The proposed circular noted that in Two commenters objected to our third party contracting guidance does the case of a conflict between State and discussion of PPPs and joint not apply to force account work. local laws, it might be necessary for development as too intrusive. One FTA to terminate the project if no Section 3—Federal Laws and resolution were available. One commenter complained that having to Regulations craft individual arrangements with FTA commenter sought an explanation of for each project would be unduly time- Subsection 3.c—Other Federal how this might occur. Since the consuming, recommending that FTA Requirements inception of the FTA program, FTA has establish objective principles for our required recipients to comply with Paragraph 3.c(1)—Compilation in the Federal requirements. In a relatively few participation in those projects. We agree Master Agreement that objective FTA principles for PPP instances, recipients have needed to participation would be helpful. As a We received two comments about the persuade their State legislatures to enact result of our experience with joint significance of the Master Agreement. special legislation that would permit the development projects, we have One commenter suggested we add a recipient to comply with Federal laws and regulations to permit its project to excerpted parts of our ‘‘Notice of Final paragraph discussing the Master continue. For that reason, the recipient Agency Guidance on the Eligibility of Agreement in much greater detail. We should notify FTA in writing as soon as Joint Development Improvements under have included a reference to the Federal Transit Law,’’ 72 FR 5788, possible when conflicts between Federal discussion of the Master Agreement in February 7, 2007, which contains third and State laws or regulations occur. Chapter I, subsection 6.f of the final party contracting guidance we have FTA is willing to work with the found useful. As we gain more circular, instead of repeating that recipient in seeking and implementing experience with joint development information in Chapter II. Because the an equitable resolution. projects and other PPPs, we will issue purpose of discussing the Master Two other commenters opposed the further guidance as appropriate. Agreement here is to identify it as a proposed circular’s termination resource identifying Federal provisions, claiming among other Paragraph 2.b(7)—Transactions requirements, among other things, we reasons that the recipient’s counsel, not Involving Complex Financial have revised the heading of that FTA, should be authorized to determine Arrangements paragraph in the final circular. Another what requirements apply, and that FTA Two commenters offered commenter complained that the Master enforcement of Federal laws recommendations about the role of an Agreement is not a useful means of inconsistent with State laws would ‘‘arranger’’ or facilitator in complicated communicating procurement effectively pre-empt State or local laws. financial transactions involving FTA requirements to recipients. Although we First of all, FTA makes every effort to assisted property. One commenter agree that the Master Agreement does avoid the need to terminate Federal pointed out that the arranger is usually not provide explicit procurement assistance for a project due to paid with the proceeds of the guidance to recipients, we have found conflicting Federal and State or local transaction resulting from the use of that the Master Agreement is one of the laws or regulations. When such FTA assisted property, and indicated most useful means of providing situations arise, occasionally they have that the arranger should be selected recipients a reasonably current been resolved by efforts the recipient using competitive procedures. Because has made to persuade its State compilation of the many Federal FTA is not sure that arrangers are legislature to amend the conflicting law, requirements that apply to FTA assisted always paid in part with FTA assistance at least to the degree necessary to permit or the proceeds derived from the use of projects. FTA assistance to be used. FTA is not

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authorized to waive Federal takes action. Those commenters argued a recipient should be able to solicit requirements except to the extent that FTA reviews of prospective actions specifications or contract terms for permitted by the underlying Federal diminish prerogatives they should have possible use in a future solicitation. We laws and regulations. If a Federal law or due to their self-certification. They agree that judicious use of standard regulation contains a requirement that apparently believe that by forms, specifications, and contract terms FTA may not waive, FTA has no choice acknowledging their self-certification, may be justified in certain situations, but to insist on the recipient’s FTA is endorsing the correctness of a and have revised the subsection on compliance as a condition of FTA self-certified recipient’s procurement industry contracts to clarify that the assistance. If the Federal Government decisions. Our response is that certain recipient may use them if they can terminates Federal assistance for a FTA reviews and approvals are required accommodate Federal requirements. project based on the recipient’s failure by Federal laws and regulations Subsection 3.e—Special Notification or inability to comply with Federal law irrespective of self-certification. Other Requirements for States or regulations, FTA’s position is that the reviews FTA recommends are intended termination would not be a Federal pre- to preserve the recipient’s ability to use Two commenters had concerns about emption of State or local law. The FTA assistance to support the the project and contract notification decision of whether a Federal agency procurement by helping the recipient requirements for States that have been will provide or continue Federal avoid an inadvertent violation of included in DOT’s annual assistance for a specific project is Federal laws or regulations, some of appropriations acts for the last few separate and distinct from a Federal which can be complex. years. FTA Circular 4220.1E described decision to pre-empt State or local law. former Appropriations Act notification Section 3—Third Party Contracting requirements having a $500,000 C. Chapter III—The Recipient’s Capacity threshold that applied to all FTA Responsibilities Section 3 contains discussions of the recipients. In contrast, the DOT Apart from specific procurement requirements for third party contracting Appropriations Acts in the last few procedures discussed at length in capacity, adequate contract provisions, years have limited their notification Chapter VI, this chapter consolidates the and an adequate procurement history requirements to States, but no longer recipient’s procurement responsibilities. that are substantially similar to their recognize a $500,000 threshold. Now We have retained much of the FTA Circular 4220.1E counterparts. We each State must include statements in information included in FTA Circular have added other subsections to the all its requests for proposals, 4220.1E, but we have also added final circular, such as recordkeeping, solicitations, Federal assistance information about Common Grant Rule that were omitted from FTA Circular applications, forms, notifications, press provisions not discussed in that 4220.1E but addressed in the Common releases, or other publications involving circular. Grant Rules. FTA assistance that FTA is or will be Two commenters objected to the providing Federal assistance for the Section 1—Written Standards of provision in Section 3 stating that project, the amount of Federal Conduct contractors providing procurement assistance FTA has provided or expects Subsection 1.a—Personal Conflicts of expertise or support to the recipient to provide, and the Catalog of Federal Interest ‘‘should be unrelated to and Domestic Assistance (CFDA) Number of Three commenters objected to the independent of any potential bidder or the program that authorizes the Federal personal conflict of interest prohibitions offeror.’’ The commenter explained that assistance. as written in the proposed circular. The prospective bidders or offerors One commenter asked whether, when Common Grant Rules and FTA Circular frequently know others with necessary issuing its announcements, it really 4220.1E prohibit personal conflicts of procurement expertise, and forbidding must include the CFDA Number for the interest by prohibiting contract the use of those sources would FTA program under which the project is activities that ‘‘would’’ result in a real unnecessarily reduce the availability of supported. FTA’s position is that or apparent conflict of interest, while expertise a recipient might need. We because identification of the CFDA the proposed circular would prohibit agree with that commenter and have number is expressly required by the personal conflicts of interest by changed the standard to one that calls recent DOT appropriation acts, the prohibiting contract activities that for preventing or ameliorating recipient must include the requisite ‘‘could’’ result in a real or apparent organizational conflicts of interest that CFDA number. The commenter also conflict of interest. We agree with the would result in conflicting roles that asked whether the requirement for commenter who pointed out that might bias a contractor’s judgment or States must flow down to its changing ‘‘would’’ to ‘‘could’’ broadens result in an unfair competitive subrecipients. FTA interprets the the standard from predictable to advantage. appropriations laws to require compliance with those notification speculative. In drafting the proposed Subsection 3.c—Industry Contracts circular, FTA did not intend to deviate requirements by the State’s from Common Grant Rules standards or One commenter noted that our subrecipients, lessees, or third party otherwise amend FTA’s current caution about using industry contracts, contractors at any tier, and we have standards. Accordingly, we have revised while reasonable in certain situations, included a provision in the final this provision by substituting ‘‘would’’ might be unwarranted if construed too circular to that effect. for ‘‘could,’’ consistent with Common broadly. Specifically, the commenter Another commenter has requested Grant Rules standards. expressed the belief that there are FTA to discuss this notification advantages to using well-known requirement in its grant management Section 2—Self-Certification industry developed forms, such as the circulars and to take other measures to We received no comments on self- AIA forms used in the construction communicate with States directly about certification, except in the context of industry or payment request forms and these broad notification requirements. some commenters’ objections to similar documents whose contract terms We agree and will make special efforts statements recommending FTA review and clauses are familiar to contractors to inform the States of these of particular matters before the recipient performing the work. In other situations, requirements.

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Subsection 3.f—Use of Technology/ general Federal requirements that apply excess capacity for assignment purposes Electronic Commerce to all federally assisted acquisitions. (which FTA does permit in limited One commenter recommended that For example, some Federal circumstances). The commenter asked FTA expressly endorse a more extensive requirements may change the way a whether the recipient can and should use of electronic contracting, including contractor fabricates and delivers rely on its own understandings about electronic bidding and reverse auctions, property; others will affect how the what it needs or whether FTA is, in and that FTA permit the recipient to contractor provides the requested effect, prohibiting cooperative engage contractors to perform those services, the amount of wages it must procurements. services. FTA approves the use of pay, and the labor protections it must We have revised this discussion for electronic bidding and reverse auctions provide to some or all employees. As a clarity. FTA’s decision to limit for third party procurements of result, to assure that FTA assistance can participation in the costs of acquisitions $100,000 or less and, if permitted under be used to support the costs of property to only that property or services the State or local law, for third party and services a recipient seeks, it is recipient requires to fulfill its procurements of a greater value. A important that the recipient’s immediate needs, is justified by the recipient may perform electronic acquisition comply with all of the many requirements of the Common Grant contracting using its own staff or may applicable Federal laws and regulations Rules. In monitoring whether a recipient engage one or more contractors to act on having an indirect effect, if not a direct has complied with its procedures to its behalf. effect, on the property or services to be determine what property or services are acquired and also on the contractor that necessary, FTA bases its determinations Section 4—Audit provides the property and services. on what would have been a recipient’s We received no comments on this FTA believes it important that the reasonable expectations at the time it section of Chapter III. recipient be fully aware of these entered into the contract. D. Chapter IV—The Recipient’s Property requirements and restrictions at the time Paragraph 1.b(2)—Acquisition for and Services Needs and Federal it begins to determine the types of Assignment Purposes property and services it needs. FTA Requirements Affecting Those Needs FTA recognizes that a recipient’s later cannot support a recipient’s needs might decrease due to changed We have restructured Chapter IV to procurement that in some way has circumstances or even honest mistakes. consolidate provisions pertaining to the violated one or more Federal In those cases, it is appropriate for a various categories of recipients and their requirements. Thus FTA cautions the recipient to assign its extra contract projects. We expanded the chapter to recipient to examine its initial include additional paragraphs in authority to another entity needing the preferences in light of Federal property or services. Although it may be response to comments on the proposed requirements before undertaking a circular. As a result, some of the difficult to determine precisely, FTA procurement for which it intends to use expects the recipient to make a guidance originally included in other FTA assistance. As an aid, we refer you chapters of the proposed circular has concerted effort to measure its actual to the checklists in Appendix C. In the immediate needs carefully before been transferred to this chapter of the course of developing the checklists final circular. entering into a procurement. A recipient identified with specific provisions of should be cautious about acquiring However, much of this chapter retains the final circular, we have consolidated provisions that are substantially similar contract rights whose use or disposition requirements pertaining to specific to their counterpart provisions in FTA is genuinely uncertain at the time of aspects of procurement in separate Circular 4220.1E or its footnotes, with contract award, except if the contract is chapters, and thus have found it important exceptions discussed below. intended to support State or local necessary to transfer some information purchasing schedules. Section 1—Determining the Recipient’s from Chapter IV of the proposed circular Needs to Chapter VI of the final circular, which Subsection 1.c—Procurement Size One commenter suggested that the provides procedural guidance for open Other commenters raised concerns acquisition planning and project market procurements. that the guidance would prohibit management functions addressed in this Subsection 1.a—Eligibility cooperative procurements. We chapter should not be included in a understand that by ‘‘cooperative circular focused on third party The property or services a recipient procurements,’’ the commenters are contracting guidance. FTA disagrees. acquires with FTA assistance must be referring to what we designate as ‘‘joint FTA considers procurement procedures eligible for Federal support. One procurements,’’ meaning a method of to be only one aspect of third party commenter requested a more definitive contracting in which two or more contracting. The fundamental purpose explanation of eligibility and requested purchasers agree from the outset to use of procurement is to acquire property examples. We have expanded that a single solicitation document and enter and services that meet the purchaser’s explanation to focus on the into a single contract with a vendor for needs. The type, amount, requirements for eligibility under delivery of property or services in a characteristics, and features of the Federal law as well as eligibility under fixed quantity, even if expressed as a property or services an FTA recipient the scope of the specific project total minimum and total maximum. seeks and conditions under which the supported by the FTA assistance to be This restriction does not preclude joint property and those services are acquired used. (cooperative) procurements because a must satisfy Federal requirements that Subsection 1.b—Necessity joint (cooperative) procurement is apply to federally assisted procurements intentionally developed to meet the if the recipient intends to use FTA Paragraph 1.b(1)—Unnecessary Reserves actual, immediate needs of the two or assistance to support the costs of the One commenter expressed concern more parties that seek to acquire similar property or services it procures. For an about FTA’s position that the recipient’s property or services, as discussed more FTA recipient, these requirements will acquisitions be limited to its immediate fully below. Nor does this restriction encompass Federal requirements needs, especially when followed by apply to a State that enters into focused on FTA acquisitions as well as prohibitions against the procurement of contracts with various vendors to

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establish State Purchasing Schedules for Paragraph 2.a(5)—Federal Civil Rights ‘‘Protection of Sensitive Security its convenience and the convenience of Laws and Regulations Information,’’ 49 CFR Part 15, and 49 its authorized users. Subparagraph 2.a(5)(b)— U.S.C. 14(s) and its implementing One commenter has expressed the Nondiscrimination on the Basis of Sex Department of Homeland Security (DHS) regulations, ‘‘Protection of opinion that market conditions are not We added a subparagraph reminding Sensitive Security Information,’’ 49 CFR the usual reason for using joint or the recipient that its third party Part 1520, actually apply to FTA cooperative procurements, maintaining contractors must comply with Federal assisted procurements and must be that joint procurements result when laws and regulations pertaining to included in third party contracts. The they are economically advantageous. nondiscrimination on the basis of sex. commenter believes those regulations FTA disagrees on the grounds that are targeted mainly on airlines. market conditions can affect what is Subparagraph 2.a(5)(c)— Nondiscrimination on the Basis of Age While recognizing the focus on airline economically advantageous to a security, FTA has determined that these recipient. We have, however, revised We added a subparagraph reminding laws and regulations do apply to public the Procurement Size paragraph of the the recipient that its third party transportation agencies and other FTA final circular to emphasize the contractors must comply with Federal recipients that have sensitive security importance of economic advantage to laws and regulations pertaining to information, such as information related the recipient. nondiscrimination on the basis of age. to vulnerability assessments (including Other commenters requested FTA to Paragraph 2.a(6)—Socio-Economic any information addressing acknowledge that ‘‘grantees are not Development vulnerabilities or corrective actions) responsible for the actions of other conducted after September 11, 2001, Subparagraph 2.a(6)(a)—Disadvantaged and other information covered by the grantees, even when conducting joint or Business Enterprises (DBE), and regulations. Therefore, FTA’s view is cooperative procurements.’’ FTA is Subparagraph 2.a(6)(b)—Small and that recipients must include unwilling to make that change. FTA Minority Firms and Women’s Business requirements for compliance with those generally holds recipients responsible Enterprises regulations in their third party contracts for compliance with Federal to assure that their contractors will take requirements by all participants in its One commenter objected to the application of both DOT’s DBE the necessary steps to protect any project, apart from a few exceptions sensitive security information within involving designated recipients in regulations and the Common Grant Rules’ participation preferences for their control. FTA’s Urbanized Area Formula program This determination is based on the small and minority firms and women’s that relinquish their responsibilities to DHS Interim Final Rule issued in 2004 business enterprises. FTA disagrees other grantees. that extended sensitive security with the commenter. At a minimum, information protections to all forms of Section 2—Federal Requirements That each recipient must comply with DOT’s transportation coupled with the general DBE regulatory prohibition May Affect a Recipient’s Acquisitions Transportation Safety Administration against discrimination, 49 CFR 26.13, and DOT amendments to their One commenter recommended that irrespective of whether the recipient is regulations removing limiting references FTA remove the references to its Master required to have a DBE program. A to ‘‘aviation or maritime’’ in their Agreement, maintaining that they are recipient required to have a DBE regulations at 49 CFR Parts 1520 and 15, inapplicable to the discussion of Federal program must comply with the respectively. See, 70 FR 1379, January 7, laws and regulations in this chapter. We provisions of its program. All Federal 2005. disagree, but have transferred our recipients, including FTA recipients, discussion of the Master Agreement to must comply with the Common Grant Paragraph 2.a(8)—Seat Belt Use the introductory paragraphs of Chapter Rules’ provisions concerning One commenter asked for a model I, subsection 6.f of the final circular, participation by small and minority contract clause for Seat Belt Use with which provides a general discussion of firms and women’s business enterprises. flowdown requirements in the final Federal Requirements that may affect a FTA believes it is possible to comply circular or FTA’s BPPM. We have not recipient’s acquisitions. with both the DOT’s DBE regulations included a model clause in the final and the Common Grant Rules, because circular but will draft one for inclusion Subsection 2.a—Contractor the Common Grant Rules for in the BPPM. Qualifications participation by small and minority firms and women’s business enterprises Subsection 2.b—Administrative Paragraph 2.a(2)—Debarment and Restrictions on the Acquisition of Suspension do not require fixed goals or actions, such as extending the reach of DBE Property and Services One commenter has informed us that program requirements to all minority Notably we have re-arranged the its State maintains its own debarment firms and women’s business enterprises format of this subsection to group topics and suspension list, and that it checks that would not otherwise qualify for for easier usage in conjunction with the both the Federal and State lists for inclusion under DOT’s DBE regulations. new checklists we have included in debarments and suspensions. FTA has These regulations contain no provisions Appendix C. requiring them to be mutually exclusive. no objection to a recipient precluding a Paragraph 2.b(3)—Period of prospective participant included in a Paragraph 2.a(7)—Sensitive Security Performance State debarment or suspension list from Information Four commenters objected to the participating in an FTA assisted project, One commenter asked whether the period of performance provisions in the even if that prospective participant is Federal ‘‘Protection of Sensitive proposed circular. One commenter not included in GSA’s Excluded Parties Security Information’’ requirements of found our period of performance List System (EPLS). 49 U.S.C. section 40119(b) and its discussion confusing. We have implementing DOT regulations, restructured that discussion as

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requested. Two other commenters final circular, noting that the examples Subsection 2.c—Socio-Economic objected to our statement that the third given are not all-inclusive. Requirements for the Acquisition of party contract terms be no longer than Property and Services ‘‘minimally necessary’’ as unduly Paragraph 2.b(6)—Protections Against restrictive and not found in applicable Performance Difficulties Paragraph 2.c(1)—Labor law. Our response is that this is not a Subparagraph 2.b(6)(a)—Changes Subparagraph 2.c(1)(a)—Wage and Hour new standard. In fact, FTA Circular Requirements 4220.1E, the predecessor to the final One commenter emphasized the need circular, also provided that, ‘‘Grantees for changes clauses. We have Two commenters pointed out that the are expected to be judicious in strengthened our recommendations that threshold for the wage and hour establishing and extending contract recipients include changes clauses in requirements of the Contract Work terms no longer than minimally their contracts. We recognize, however, Hours and Safety Standards Act has necessary to accomplish the purpose of that a recipient may only be able to been amended to apply to contracts of the contract.’’ We understand, however, include a contract provision requiring $100,000 or more. We agree, and the that if a recipient takes that guidance to the contractor to consider a change final circular includes that change. an extreme, allowing no reasonable rather than demand a change. Every Subparagraph 2.c(1)(b)—Fair Labor period to accommodate even small recipient may not have the economic Standards performance delays, then the guidance leverage to compel a third party would be undesirable. We have contractor to continue contract work Consistent with the FTA Master therefore removed the ‘‘minimally until it is assured payment and other Agreement, we added a reminder that necessary’’ standard, replacing it with terms under which it must work. We do the Fair Labor Standards Act protects guidance that the recipient is expected expect the recipient to include changes employees engaged in commerce. to establish a period of performance and changed conditions clauses that consistent with ‘‘the time necessary to provide for both parties to negotiate in Paragraph 2.c(2)—Civil Rights accomplish the purpose of the good faith about desirable changes. contract.’’ Subparagraph 2.c(2)(c)—Environmental Justice Four commenters also objected to the Subparagraph 2.b(6)(b)—Remedies position that every time extension Sub-subparagraph 2.b(6)(b)1— We added a subparagraph reminding would constitute an out-of-scope change Liquidated Damages the recipient of Federal Environmental requiring a sole source justification. One Justice provisions. commenter seems to believe that we Four commenters requested changes would treat all time extensions not to the liquidated damages provisions in Subparagraph 2.c(2)(d)—Limited contemplated in the original contract as the proposed circular. Two commenters English Proficiency (LEP) recommended that acceptable methods out-of-scope changes. This provision, We added a subparagraph reminding which is included in FTA Circular of calculating liquidated damages, in the recipient of Federal Limited English 4220.1E, is not new. Nevertheless, we addition to time, be acknowledged as Proficiency provisions. agree that a time extension can acceptable. We agree, and the final sometimes be a legitimate remedy in circular includes additional methods of Subparagraph 2.c(2)(e)— circumstances beyond the recipient’s calculating liquidated damages. Another Nondiscrimination on the Basis of control, and should not in all cases be commenter recommended that we Disability considered an out-of-scope change. In substitute the proposed circular’s Sub-subparagraph 2.c(2)(e)3—DOT other instances, however, the statement that ‘‘the rate and Public Transportation Regulations circumstances surrounding other time measurement period may not be Implementing Section 504 and the ADA extensions, especially those in which excessive,’’ with the established significant new deliverables would be standard for liquidated damages ‘‘that We consolidated references to the added, would be an out-of-scope the measure of damages must be major Federal regulations that describe change. We have revised the final calculated to reasonably reflect the costs the various requirements for public circular accordingly. estimated to be incurred by the recipient transportation services to individuals Paragraph 2.b(5)—Payment Provisions should the standard not be obtained, with disabilities, and provided some and that the procurement file should Subparagraph 2.b(5)(b)—Advance examples of their application. Payments contain a record of the calculation and rationale.’’ We agree, and have made Subparagraph 2.c(2)(f)—Electronic One recipient pointed out that that change. Another commenter asked Reports and Information how we expect a recipient to document prohibiting a recipient from using local One commenter asked us to clarify the reasonableness of the liquidated share funds for advance payments whether the requirement to use without first obtaining FTA’s consent is damages it intends to use. We have accessible electronic formats when unfair, particularly if no Federal included provisions in the final circular delivering reports would apply only to assistance is at risk. We agree, and have explaining that FTA expects the third party contracts for delivery of modified the paragraph to remove the recipient to calculate a rate and reports, or also to other information in prohibition for projects having measurement standard that reasonably electronic format that the recipient automatic preaward authority or reflects the costs should the standard intends to provide to FTA. We have projects having some form of preaward not be met, and expects the recipient to revised the paragraph on electronic authority. include this information in its reports and information to clarify that Another recipient asked for more solicitation and contract. We have also all information submitted to FTA must examples of allowable pre-award added a discussion in Chapter VII of be provided in accessible formats. expenditures. We agree, and have how liquidated damages might, in identified additional examples in the certain situations, foster settlements.

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Paragraph 2.c(3)—Environmental However, 49 U.S.C. 5325(i) preempts that determines whether qualifications- Requirements conflicting in-state dealer requirements based procurement procedures must be Subparagraph 2.c(3)(f)—Recycled contained in State laws. used or whether qualifications-based procurement procedures may not be Products Paragraph 2.e(10)—Five-Year Limitation used. One commenter asked FTA to post on One commenter asked how FTA plans Another commenter asked how these its Web site a link to EPA’s Web site to enforce the five-year limitation on qualifications-based procurement about recovered materials advisory rolling stock contracts, and whether requirements would apply to various notices. We have included the EPA Web FTA will require the recipient to activities undertaken in an Intelligent site in the final circular. prepare a five-year needs document for Transportation System (ITS) project its contract files. Our response is that involving construction or improvements Paragraph 2.c(5)—Preference for U.S. FTA has considerable discretion to take Property—Buy America to real property. The final circular now actions to determine and enforce contains a list of some of the activities One commenter pointed out that the compliance with the statutory likely to take place during the proposed circular’s description of FTA’s requirements in its enabling legislation. implementation and development of an Buy America requirements omitted We believe it useful for the recipient to ITS project, and have identified those in discussion of the $100,000 threshold. have documentation in its files that can which qualifications-based procurement We agree, and have included this justify any actions that might call into procedures must be used and those in information in the final circular. We question the recipient’s compliance which qualifications-based procurement have also revised the Buy America with statutory requirements of any type, procedures may not be used. provisions for the final circular to including compliance with the five-year clarify that FTA’s Buy America limitation on rolling stock contracts. Subsection 2.h—Construction—Special requirements apply to property Requirements Subsection 2.f—Public Transportation delivered to the recipient, but not to Services—Special Requirements Paragraph 2.h(1)—Bonding property acquired by a contractor for Paragraph 2.f(1)—Protections for Public Subparagraphs 2.h(1)(f)—Excessive use in performing contract work if the Bonding property used is not delivered to the Transportation Employees recipient. Consistent with the FTA Master Three commenters questioned Agreement, we added a reminder that whether FTA would accept State Subsection 2.d—Technical Restrictions bonding policies that differ from Federal on the Acquisition of Property and the Fair Labor Standards Act protects employees engaged in commerce. requirements. We have amended the Services proposed circular to affirm that we will Paragraph 2.d(3)—Use of $1 Coins Subsection 2.g—Architectural not challenge State or local bonding Engineering and Related Services— policies that exceed FTA’s One commenter objected to the Special Requirements requirements. One commenter requested Presidential $1 Coin Act of 2006 that we address the use of bonding for requirement that each FTA-assisted We received three comments about acquisitions beyond construction, public transportation service property procurements of architectural, commenting on its expense and that uses coins or currency to be fully engineering, and related services as usefulness. We have amended the capable of accepting and dispensing $1 specified in 49 U.S.C. 5325(b)(1). proposed circular to explain that while coins because it is likely to cause an Paragraph 2.g(2)—Relation to bonding is expensive, bond undue hardship on rural public Construction requirements can be useful if the transportation agencies because they Two commenters pointed out recipient has a material risk of loss will need to either retrofit existing inconsistencies between Chapter IV and because of a failure of the prospective equipment, including farebox and ticket Chapter VI of the proposed circular in contractor. This is to prevent potential dispensing equipment, or purchase new determining when qualifications-based risks associated with contractor equipment. The Department of Treasury procurement procedures must be used bankruptcy or financial failure at the is implementing those requirements, and may not be used. We have re- time of partially completed work. and FTA lacks the authority to waive drafted provisions of both chapters to Another commenter urged us not to them. stress that qualifications-based encourage recipients to submit each Subsection 2.e—Rolling Stock—Special procurement procedures may be used bonding request that exceeds the limits Requirements only when the services are directly in described in the proposed circular to Paragraph 2.e(8)—In-State Dealers support of, directly connected to, FTA for approval. We agree, and the directly related to, or lead to final circular now reminds the recipient One commenter asked how we will construction, alteration, or repair of real that it may contact the Regional administer the SAFETEA–LU property. Administrator for the region amendment to 49 U.S.C. 5325 providing administering the project for approval of Subparagraph 2.g(2)(c)—Type of that bus purchases may not be restricted its bonding policies if it chooses to do Contractor Not Determinative to in-State dealers. The commenter’s so. If a recipient’s bonding policies far concern is focused on the conflict that One commenter also suggested that exceed FTA or State or local would arise if State law limits purchases we state that certain architectural requirements to an extent that of motor vehicles to in-state dealers, engineering firms have the capability of competition is reduced, FTA cannot while 49 U.S.C. 5325(i) prohibits the performing services beyond traditional assure the availability of FTA assistance limitation. The commenter points out A&E services. We have amended both to support the costs of that acquisition. that recipients must comply with chapters for consistency, so that the Federal law as well as State law. We final circular emphasizes that it is the Paragraph 2.h(3)—Value Engineering agree that Federal laws that appear to nature of the work to be performed and One commenter cautioned us about conflict with similar State laws can its relationship to construction, not the our statement that ‘‘FTA will not cause problems to FTA’s recipients. nature of the prospective contractor, approve a New Starts grant application

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for final design funding or a full funding does not generally authorize a Federal Subsection 2.j—Audit Services grant agreement until value engineering agency to require inventors to make Three commenters asked for more is complete.’’ While that sentence is their federally assisted inventions information about obtaining audit based on the requirements of 49 U.S.C available to the public at large, FTA can information from other Federal 5309, we agree that restrictions and does support projects in which agencies. We have included information pertaining to New Starts projects should participants agree to make rights to use about Federal agencies that work with not be included in the final circular in an invention developed or reduced to various types of recipients and a way that might become invalid due to practice under an FTA project broadly contractors to establish indirect cost later changes in law. Therefore, we have available. rates consistent with FAR cost softened the statement to caution that Paragraph 2.i(2)—Rights in Data principles. It is our understanding that value engineering can be required as a those Federal agencies are charged with pre-requisite for some FTA assistance One commenter took exception to those responsibilities and are expected awards. FTA’s rights in data policy as being to fulfill them. While a Federal agency Another commenter asked that we inconsistent with the Common Grant might not perform all audits for include a definition of ‘‘value Rules. For data developed under a recipients of Federal assistance, the engineering’’ that distinguishes it from research, development, demonstration, Federal agency charged with the cost-cutting. We agree, and have added or special studies project, FTA’s general responsibility for establishing indirect a definition to Chapter I, section 5 that policy is to obtain sufficient rights to cost rates and other similar functions will be used consistently in our revised permit FTA to make either FTA’s would be expected to provide the circulars. license in the copyright to the subject recipient sufficient data that the Paragraph 2.h(5)—Prevailing Wages data or a copy of the subject data to recipient’s private or internal auditors which it would be entitled under the Two commenters expressed their could perform their duties properly. Common Grant Rules available to any belief that, along with raising the When we revise our BPPM, we will FTA recipient, subrecipient, third party threshold of the Contract Work Hours include more information. contractor, or third party subcontractor,. and Safety Standards Act to $100,000, E. Chapter V—Sources FTA obtains these rights in data through the threshold of the Davis-Bacon Act the recipient’s agreement set forth in the requiring prevailing wages to be paid for Section 1—Force Account construction labor had also been raised FTA Master Agreement. If FTA is not Four commenters questioned our to $100,000. FTA disagrees. The Davis- able to secure sufficient rights in data inclusion of force account as a source Bacon Act has not been so amended. derived from the research projects it from which a recipient could obtain The Davis-Bacon Act applies its supports and is unable to make that data services. Three commenters asserted prevailing wage requirements to ‘‘every available for the general benefit of that the use of force account is a grants contract in excess of $2,000 . . . .’’ 40 transportation, then certain research and management issue, not a procurement U.S.C. 3142. development projects might not be issue. Understanding our decision to worth pursuing. discuss force account in contrast with Paragraph 2.h(9)—Preference for U.S. The commenter then requested an third party contracting, one commenter Property—Buy America explanation of those contracts excepted recommended that we clarify that the Three commenters objected to FTA’s from these requirements. FTA does not final circular does not apply to force Buy America provisions for seek these broad rights in data for other account work. We agree, and the final construction projects as overbroad. We than research, development, circular states that its procurement agree, and the final circular now demonstration, or special studies guidance does not apply to a recipient’s includes information about the $100,000 projects. For example, FTA does not force account work. threshold. The final circular also seek greater rights in data supplied Section 3—Joint Procurements, and clarifies FTA’s position that its Buy under its capital projects than those America requirements apply to property rights provided in the Common Grants Section 4—State or Local Government delivered to the recipient, but not to Rules, because FTA is not providing Purchasing Schedules or Purchasing property acquired by a contractor for Federal assistance for the research and Contracts use in performing contract work if that development of property or services at Several commenters informed us that property the recipient used is not the time the property or services are the proposed circular’s descriptions of delivered to the recipient under their eligible for capital funding. Due to joint procurements and procurements contract. questions that arose in connection with through State or local government Subsection 2.i—Research, Development, licensing automatic data processing purchasing schedules or contracts is Demonstration, Deployment, and equipment or programs for the confusing, and recommended that we Special Studies—Special Requirements recipient’s use, if FTA capital assistance reinstate the provisions of FTA Circular is used to support those costs, then FTA 4220.1E. Two commenters, for example, Paragraph 2.i(1)—Patent Rights would not take the greater rights. In pointed out that joint procurements are One commenter asked whether FTA summary, FTA does not seek greater unlikely to be undertaken using State or will grant a waiver of patent rights when rights in data used in projects for which local government purchasing schedules. the recipient wants the source code FTA did not directly finance the We agree, and we have revised the being created to be an open source so research and development costs of that sections on Joint Procurement as well as that others will be encouraged to use data. the section on State or Local that source code; or when the recipient Paragraph 2.i(3)—Export Control Government Purchasing Schedules or wants to contract with an entity that has Purchasing Contracts for clarity. already created an open source code to One commenter requested that we tailor that code and allow the tailored provide a citation to the Export Control Section 3—Joint Procurements code also to become open source. At the regulations referenced in the proposed The final circular defines ‘‘joint outset, FTA cannot waive another circular. We agree, and have added the procurement’’ to mean a method of party’s patent rights. While Federal law requested citation to the final circular. contracting in which two or more

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purchasers agree from the outset to use Subsection 4.a—Use Encouraged recipient would not prepare an open a single solicitation document and enter One commenter asked how State or market solicitation for the property or into a single contract with a vendor for local government schedules or services when attempting to use a State delivery of a property or services in a purchasing agreements could be or local government purchasing fixed quantity, even if expressed as a available to other parties. The extent to schedule, the recipient might choose to total minimum and total maximum. The which a State or local government append the relevant Federal final circular emphasizes that the chooses to make its purchasing requirements to a purchase order and contract resulting from a joint agreements or schedules available rests obtain the vendor’s consent to those procurement is not drafted with the with the State or local government that conditions as a prerequisite for using understanding that its terms will be has established the schedule or FTA assistance to support the costs of made available to purchasers other than purchasing contract. that property or those services. But the original parties at a later date. As whatever procedure the parties use, with all FTA assisted contracts, the Subsection 4.b—All FTA and Federal requirements applicable to FTA recipient must comply with all Requirements Apply procurements cannot be waived. applicable Federal requirements. Several commenters expressed the Section 6—Federal Supply Schedules One commenter asked whether a view that it would be impossible for a recipient to use State or local Subsection 6.d—Competition and Price ‘‘Cooperative Purchasing Program’’ is Reasonableness the same as a joint procurement. We government schedules or purchasing used the term ‘‘Cooperative Purchasing agreements if FTA requirements were to One commenter asked whether State Program’’ to refer to the GSA apply to those procurements. FTA and local governments must verify Cooperative Purchasing Program for the recognizes that when a State or local competition was used for the Federal Government. The final circular government establishes a schedule, it procurement of items listed on GSA now identifies that program as the has not contemplated the need to schedules before using those schedules. ‘‘GSA’s Cooperative Purchasing comply with FTA’s third party Our response is that there is no need to Program’’ to preclude confusion with procurement requirements. For verify that competition was used for the joint procurements. example, a State or local government property and services listed on GSA generally does not consider matters schedules prior to using the schedules. Subsection 3.a—Use Encouraged such as FTA Buy America standards at Vendors listed on GSA schedules the time its schedules are introduced. A should be treated as prospective One commenter suggested that recipient that seeks to use FTA sources. Therefore, a recipient is discussing the advantages of joint assistance to acquire property or generally expected to select at least procurement as being able to ‘‘exactly services from a State or local three vendors from a GSA schedule and match’’ each participating recipient’s government purchasing schedule, seek proposals. requirements is misleading, and informs however, must comply with applicable Section 7—Existing Contracts us that in many cases customizing FTA requirements. To do so, the would be required. We agree, and we recipient is expected to use competition Subsection 7.a—Permissible Actions removed the term ‘‘exactly match.’’ by seeking bids from three or more Paragraph 7.a(1)—Exercise of Options Section 4—State or Local Government vendors listed on the schedule, and then determine whether the property or Subparagraph 7.a(1)(c)—Awards Purchasing Schedules or Purchasing Treated as Sole Source Procurements Contracts services as offered would comply with Federal requirements. Among other One commenter requested that we In this section, we have established a things, the recipient would need to explain what we mean by ‘‘failure to definition of ‘‘state or local government determine whether a product sought evaluate the option.’’ There is no purchasing schedule’’ to mean an from the schedule would qualify as requirement to solicit for options or arrangement that a State or local domestic or foreign under our Buy obtain firm option prices as part of a government has established with America standards, if the product would solicitation. If option prices are multiple vendors in which those be shipped by ocean-going vessel or by obtained, the recipient need not vendors agree to provide essentially an air for compliance with Federal cargo evaluate those option prices in option to the State or local government preference requirements, if a new bus determining the underlying contract to acquire specific property or services had been tested and whether preaward award. However, if the recipient does in the future at established prices. If the and post delivery review could be not evaluate options when the contract State or local government wishes to obtained, whether the property sought was awarded, it may not exercise the permit others to use the schedules, the had been manufactured in accordance options at a later date unless it can State or local government might seek the with environmental restrictions, and so justify a sole source award. agreement of the vendor to provide the forth. FTA is not able to waive Federal Two commenters objected to our listed property or services to others with requirements beyond what is position that negotiating a lower option access to the schedules, or it may permit permissible under law. Only if the price would always result in a sole the vendor to determine whether it property or services listed on a State or source award requiring justification. wishes to do so. This arrangement has local government purchasing schedule FTA recognizes that it is reasonable to two parts: (1) Establishing the schedule, complies with FTA’s requirements permit the price of an option to be and (2) acquiring property and services would the recipient be able to use FTA reduced if the lower price can be from the schedule. FTA does not assistance to support the costs of that reasonably determined from the terms of provide Federal assistance to a State or property or services. the original contract, or if that price local government when it is establishing One commenter asked us to describe results from actions that can be reliably its schedule. FTA assistance is provided methods of meeting FTA requirements measured, such as changes in Federal after the schedule is established and a when acquiring property and services prevailing labor rates, or as authorized recipient acquires property or services through a State or local government under State or local law. One of the from that schedule. purchasing schedule. While the commenters also objected to our view

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that negotiating a higher option price contract changes. The commenter F. Chapter VI—Procedural Guidance for would always result in a sole source warned that if the contract provisions Open Market Procurements award requiring justification. FTA has are read without consideration of their We have also restructured Chapter VI not changed its position. If only a higher context, minor changes not expressly so that the final circular consolidates price is available, then competition addressed or even contemplated under provisions pertaining to the various would normally be required unless the the contract when it was signed might procurement methods. Chapter VI of the higher price results from actions that be considered out-of-scope changes. final circular includes additional can be reliably measured, such as Minor changes, even if considered ‘‘out- paragraphs to respond to unanticipated increases in Federal prevailing labor of-scope’’ because they are not comments on the proposed circular. As rates, or as authorized under State or addressed in the contract, should not be a result, we have transferred some of the local law. considered ‘‘cardinal’’ changes. The guidance originally included in other One commenter objected to our commenter recommended that a chapters of the proposed circular to requirement for contracts to include cardinal change be described as ‘‘a Chapter VI of the final circular. Much of maximum quantities. The commenter major deviation from the original this chapter retains provisions believes that requiring maximum purpose of the work or the intended substantially similar to their counterpart quantities could adversely affect the method of achievement,’’ rather than an provisions in FTA Circular 4220.1E or establishment of State or local ‘‘out-of-scope change.’’ Although the its footnotes, with important exceptions government purchasing schedules. FTA Federal Court of Claims coined the term discussed below. disagrees. FTA does not finance the ‘‘cardinal change’’ to describe changes establishment of State or local that are beyond the scope of the Section 1—Competition Required purchasing schedules, so that when contract, we agree that some changes Subsection 1.b—Unsolicited Proposals State or local governments and their necessary to fulfill the original intent of Two commenters pointed out that the vendors enter into contracts for their the contract might not be expressly purchasing schedules, those contracts unsolicited proposal provisions of the included in the contract. Therefore, we proposed circular are too broad. FTA are not subject to FTA requirements. It have adopted the commenter’s is only when a recipient intends to use agrees that the proposed circular’s recommendation, and the final circular guidance could be misunderstood. The FTA assistance to acquire property or contains revised provisions. services that FTA requirements are final circular now permits a recipient to imposed. Thus if an FTA recipient seeks One commenter wanted many more use the same standards applicable to a to acquire an indefinite amount of examples and much more guidance. Federal agency that must comply with property or services through a State or Such guidance can be found in FTA’s the FAR. BPPM at the FTA Web site: http:// local purchasing schedule, it would Section 2—Solicitation Requirements www.fta.dot.gov/funding/ need to specify a maximum quantity as and Restrictions well as a minimum quantity. thirdpartyprocurement/ grants_financing_6037.html and Subsection 2.a—Description of Property Paragraph 7.a(2)—Assignment of ‘‘Frequently Asked Questions’’ at the or Services Contract Rights FTA Web site: http://www.fta.dot.gov/ Paragraph 2.a(1)—What To Include Subparagraph 7.a(2)(a)—Acquisition funding/thirdpartyprocurement/ Through Assigned Contract Rights grants_financing_6039.html. Four commenters objected to our admonition that ‘‘Detailed technical Three commenters objected to our Two commenters objected to the specifications should be avoided if at all position that a recipient seeking an example of an engine change or similar possible in favor of performance assignment of contract rights from large component change as a cardinal specifications.’’ Two commenters another recipient must ensure that the change per se, particularly since it pointed out that prohibiting detailed assigning recipient ‘‘has not improperly might be necessary to obtain a technical specifications could make expanded the quantity of property or compatible new engine if the old engine fleet management more difficult, while services to be delivered under its is no longer available. FTA’s view is one commenter informed us that the original contract.’’ The purpose of this that if a major component of a vehicle prohibition would conflict with design- provision is to express FTA’s intention is no longer available, the recipient bid-build construction contracting that the recipient seeking the should use competition to obtain a procedures. We agree in part, and have assignment would review the assigning compatible substitute. In some cases, revised the discussion of detailed recipient’s contract to determine the recipient would need to enter into technical specifications so that the final whether the total quantities sought a contract with the original circular only expresses a preference for would not exceed the limits of that manufacturer if installation of the performance or functional original contract. We agree that a needed component would be specifications, coupled with a statement recipient seeking an assignment of complicated, but in other cases, similar explaining that there is no flat contract rights cannot determine components available from more prohibition against detailed technical whether or not the assigning recipient vendors might be usable and available. specifications when appropriate. The specified greater quantities than the If the vehicle has not been fabricated final circular also includes a statement assigning recipient needed at the time of when a specific major component referencing Common Grant Rules its original solicitation. We have revised became obsolete, whether using a requirements. this guidance to clarify FTA’s concerns. different component would cause a Paragraph 2.a(2)—Quantities Limited to Subsection 7.b—Impermissible Actions cardinal change would depend on the extent of the effect of that change. The the Recipient’s Actual Needs Paragraph 7.b(2)—Cardinal Changes final circular, however, states that the One commenter recommended that a One commenter asked us to provide circumstances surrounding the need for discussion of the recipient’s needs be more guidance about cardinal changes changing major components will placed in a different circular or policy and not use the terms ‘‘in-scope’’ and determine whether or not a change document. We disagree. It is important ‘‘out-of-scope’’ as determinative of would be a cardinal change. to remind recipients that they should

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not contract for excess quantities, the affected area. We agree, and the final final circular to state that a firm fixed particularly because doing so can circular includes this change. price contract may include an economic increase costs and provide more Subparagraph 2.a(4)(h)—Organizational price adjustment provision, incentives, opportunities for them to assign their Conflicts of Interest or both. contract rights to others, a practice FTA does not favor. One commenter recommended that Section 3—Methods of Procurement the organizational conflict of interest Subsection 3.a—Micro-Purchases Paragraph 2.a(4)—Prohibitions subparagraph be revised for clarity. We Subparagraph 2.a(4)(d)—Retainer agree, and have made that revision. We received three comments about Contracts Sub-subparagraph 2.a(4)(h)2—Remedies micro-purchases. Two commenters advised us that the discussion in the Two commenters objected to our Three commenters objected to the prohibition against a recipient making proposed circular was too detailed, and proposed circular’s provisions that specifically recommended that noncompetitive awards to any person or appeared to exempt consortia from firm on a retainer contract without documentation procedures be moved to organizational conflict of interest the BPPM. We believe a reasonably providing further justification. The restrictions. When drafting those comprehensive discussion of micro- commenters reminded us that many provisions, we were attempting to purchases is necessary in view of the recipients award retainer contracts distinguish arrangements in which a based on competition. They expressed contract would be awarded for both opportunities for misunderstanding. their view that this prohibition would initial and follow-on work from One commenter recommended that unduly limit the recipient’s flexibility to arrangements in which a contract would we remove discussions of dollar limits acquire the property and services it be awarded for only the initial work. in connection with micro-purchases, needs. We agree in part, and the final The final circular contains revised mainly because States or local circular now prohibits only provisions stressing that FTA expects jurisdictions may have lower limits. We noncompetitive awards to persons or the recipient to analyze each planned disagree. Although we stated in the firms on retainer contracts if those acquisition for potential organizational proposed circular that the recipient awards are not for the property or conflicts of interest as early in the could establish lower thresholds for services specified for delivery under the acquisition process as possible, and to retainer contracts. micro-purchases, the final circular take appropriate measures to avoid, emphasizes that the recipient may set Subparagraph 2.a(4)(e)—Excessive neutralize, or mitigate them before lower thresholds for micro-purchases in Bonding contract award. compliance with State and local law, or One commenter requested more Subparagraph 2.a(4)(i)—Restraint of otherwise as it considers appropriate. discussion of bonding. The final circular Trade The same commenter asked how now explains more fully our objections One commenter asked why Davis-Bacon requirements relate to the to unnecessary bonding as unduly noncompetitive pricing is included dollar value of a procurement unless it restrictive of competition. within the same category as matters is FTA’s position that contracts subject Subparagraph 2.a(4)(f)—Brand Name within the recipient’s control. Both to Davis-Bacon cannot be procured as Only Common Grant Rules provide that micro-purchases. In its discussion of micro-purchases, the proposed and final Two commenters requested us to state noncompetitive pricing practices circulars are cautioning the recipient that specifying a brand name product between firms or between affiliated that even though it may use micro- without stating salient characteristics companies are practices that in some that would allow for an equivalent may situations can be restrictive of purchase procedures for procurements be acceptable as a proper sole source competition. Consequently, the of construction, it still must comply award. We have not adopted that recipient should be alert to situations with Davis-Bacon prevailing wage recommendation, as we believe it would evidencing the possibility that bidders requirements. encourage specifications based on brand or offerors seeking contracts might be One commenter asked whether the names without descriptions of salient engaging in noncompetitive pricing Service Contract Act’s threshold of characteristics. The final circular, practices. Questionable practices would $2,500 should be mentioned in include submissions of identical bid however, includes a modified connection with micro-purchases. We prices for the same products by the discussion of ‘‘brand name only’’ have not discussed the Service Contract same group of firms. Other questionable matters indicating that prohibitions Act because the only FTA recipient that against the use of ‘‘brand name only practices would be reflected in an unnatural pattern of awards that had the must comply with the Service Contract descriptions’’ would apply in some Act is the District of Columbia. situations. cumulative effect of apportioning work among a fixed group of bidders or Subsection 3.c—Sealed Bids (Formal Subparagraph 2.a(4)(g)—In-State or offerors. Advertising) Local Geographic Restrictions Subsection 2.c—Contract Type Paragraph 3.c(1)—When Appropriate Sub-subparagraph 2.a(4)(g)3—Major Specified Disaster or Emergency Relief One commenter pointed out that our Paragraph 2.c(1)—Typical Contract discussion of sealed bidding gives the One commenter recommended that Types we revise our discussion of exceptions impression that sealed bidding can only to in-state or geographical preferences Subparagraph 2.c(1)(a)—Firm Fixed be used for acquisition of property and for major disaster or emergency relief Price construction. We agree that sealed projects, making special reference to the One commenter recommended that bidding can be used for the acquisition Stafford Act’s preference for we include a discussion of firm fixed of other types of property and services, organizations, firms, and individuals price contracts with economic price and the final circular now clarifies that residing or doing business primarily in adjustments. We agree, and revised the matter.

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Subparagraph 3.c(1)(d)—Price if State and local laws permit the proposed circular in designating the Determinative recipient to negotiate if it only receives relationship to real property compared One commenter recommended that a single bid in response to a formally with the relationship to construction as we clarify the term ‘‘price-related advertised procurement. The the standard for determining when factors’’ in our discussion of contract commenter then recommended that we qualifications-based procurement price in the context of sealed bidding delete the standard or explain it more procedures must be used and may not procurements. We agree, and revised the fully. We agree, and have explained the be used. We have revised both Chapter final circular to identify transportation standard more fully. VI and Chapter IV of the final circular to stress that qualifications-based costs, life cycle costs, and discounts Subparagraph 3.d(1)(c)—Price Alone procurement procedures may be used expected to be taken as examples of Not Determinative price-related factors. only when the services are directly in One commenter asked us to clarify the support of, directly connected to, Subparagraph 3.c(1)(e)—Discussions distinction between price-related factors directly related to, or will lead to Unnecessary in sealed bidding and award criteria for construction, alteration, or repair of real The same commenter recommended competitive proposals. We agree, and property. made the necessary revision. that we clarify this subparagraph to Another commenter requested us to distinguish between when discussions Subparagraph 3.d(1)(d)—Discussions provide examples of activities related to are acceptable, such as before receipt of Expected a project involving ‘‘improvements to bids, in negotiations after receipt of The same commenter asked us to real property’’ that would require the bids, and in pre-award responsibility make the distinction between use of qualifications-based procurement determinations, and when discussions discussions permitted in sealed bidding procedures. The final circular includes are not acceptable, such as after receipt and the discussion/negotiation process several examples. of bids. We agree, and made appropriate in competitive proposals. We agree, and changes. Paragraph 3.f(2)—Qualifications-Based made the revision. Procurement Procedures Prohibited Subsection 3.d—Competitive Proposals Paragraph 3.d(2)—Procurement The same commenter also requested (Request for Proposals) Procedures us to provide examples of The same commenter also Subparagraph 3.d(2)(f)—Best Value ‘‘improvements to real property’’ for recommended that we change the which qualifications-based procurement wording of the standard for using That commenter also requested us to procedures would be prohibited. We competitive proposals to ‘‘there is an amend the discussion of ‘‘Best Value’’ to agree, and have added several examples. expectation that there is more than one stress that the evaluation factors for a source willing and able to submit an specific procurement should reflect the Paragraph 3.f(5)—Audits and Indirect offer, or proposal.’’ We agree, and the subject matter and the elements that are Costs final circular contains appropriate most important to the recipient. We agree, and made the revision. Subparagraph 3.f(5)(d)—Prenotification: changes. Confidentiality of Data Two commenters requested that we Subsection 3.e—Two-Step Procurement clarify that only one of the four pre- Procedures Two commenters asked us to clarify conditions justifying the use of One commenter recommended that the confidentiality requirements for cost competitive proposals need be present. competitive negotiation be included in or rate data used to determine indirect We agree, and the made that revision. the discussion of two-step procurement cost rates for architectural engineering Paragraph 3.d(1)—When Appropriate processes. We agree, and added contracts, particularly in light of the fact guidance about proposals as well as bids that States have widely differing ‘‘Open Subparagraph 3.d(1)(a)—Type of Records’’ type laws. FTA recognizes that Specifications in our general discussion of two-step procurement procedures. some State laws might make it difficult One commenter recommended that for a recipient to protect cost and rate we support the use of negotiations when Subsection 3.f—Architectural data pertaining to its contractors. performance specifications are used. Engineering Services and Other Services Nevertheless, FTA’s enabling legislation Two commenters recommended that we Again as in Chapter IV, the same at 49 U.S.C. 5325(b)(3)(D) requires a delete ‘‘unavailability of adequate commenter suggested that we state that recipient to treat any cost or rate data specifications or descriptions’’ as a certain architectural engineering firms used to determine indirect cost rates for standard justifying use of competitive have the capability of performing architectural engineering contracts as proposals. We have adopted those services beyond traditional A&E confidential. Section 5325(b)(3)(D) also recommendations, and the final circular services. We have revised both Chapter prohibits the recipient from making that now include a statement that detailed VI and Chapter IV of the final circular data accessible or providing it to technical specifications may be used if for consistency, emphasizing that the another party unless the audited firm other circumstances, such as the need nature of the work to be performed and provides the recipient written for discussions or factors other than its relationship to construction, not the permission to do so. Moreover, if price alone should determine contract nature of the prospective contractor, prohibited by law, that cost and rate award. determines whether qualifications-based data may not be disclosed under any circumstances. FTA is not authorized to Subparagraph 3.d(1)(b)—Uncertain procurement procedures must be used or may not be used. waive the requirements of 49 U.S.C. Number of Sources 5325(b)(3)(D). Therefore, the final The same commenter expressed the Paragraph 3.f(1)—Qualifications-Based circular recommends that before view that uncertainty about whether Procurement Procedures Required requesting or using cost or rate data, not more than one offeror will submit a One commenter reminded us to only should a recipient notify the proposal is not in itself a reason to resolve the inconsistencies between affected firm, but it also must obtain require the use of competitive proposals Chapter IV and Chapter VI of the permission to provide that data in

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response to a valid request under a Sub-subparagraph 3.i(1)(b)2—Single Bid Questions’’ at the FTA Web site: State’s ‘‘Open Records’’ type law. or Proposal http://www.fta.dot.gov/funding/ Four commenters pointed out that in thirdpartyprocurement/faq/ Subsection 3.g—Design-Bid-Build _ _ our discussion of the consequences of grants financing 6148.html. One commenter asked us to use an procurements resulting in a single bid or Section—6 Cost and Price Analysis outline format for this subsection. We proposal, the proposed circular uses the Subsection 6.a—Cost Analysis agree, and have revised the format of terms ‘‘adequate’’ and ‘‘inadequate’’ in this subsection for greater consistency ways different from the BPPM’s use of One commenter asks whether, as with the formats generally used in the those terms. In short, the commenters stated in the proposed circular, a cost final circular. requested that we adopt the standard analysis will be necessary in the case of a single bid or proposal when The same commenter requested us to that competition is ‘‘adequate’’ if a competition has been determined revise the subsection to emphasize that single bid or proposal is submitted adequate because submission of only two contracts are awarded when a through no fault of the recipient. We one bid or proposal was not the fault of recipient uses the design-bid-build agree, and made that revision. the recipient, or whether a price procurement method. We agree, and Subparagraph 3.i(1)(d)—Associated analysis would be acceptable. FTA’s made that revision. Capital Maintenance Item Exception position is that a cost analysis will be Repealed Subsection 3.h—Design-Build required in the case of a single bid or Two commenters asked why we proposal that is not the fault of the In response to comments about format omitted associated capital maintenance recipient, except if a price analysis can and clarity, we revised the final circular items as appropriate for sole source. be based on a catalog or market price of for greater consistency with the formats When SAFETEA–LU was signed into a commercial product sold in generally used in the final circular. law on August 10, 2005, it repealed the substantial quantities to the general sole source procurement authority for Subsection 3.i—Other Than Full and public or based on prices set by law or associated capital maintenance items. Open Competition regulation. Since then, an associated capital Paragraph 3.i(1)—When Appropriate. maintenance item must qualify under Paragraph 6.a(2)—Establishing Indirect the same standards that would apply to Cost Rates Subparagraph 3.i(1)(b)—Sole Source other sole source acquisitions. One commenter questioned whether Sub-subparagraph 3.i(1)(b)1—Unique the discussion about which entity must Paragraph 3.i(3)—Procurement Capability and Availability approve indirect cost rates applies to Procedures architectural engineering contracts. FTA One commenter asked us to provide Subparagraph 3.i(3)(b)—Sole Source did not intend these provisions to apply examples of unique capability and Justification to architectural engineering contracts availability that justify a sole source One commenter recommended that because architectural engineering procurement, pointing out that many we require that a sole source contracts have their own statutory vendors have unique capabilities that do justification must be prepared by an indirect costs requirements. We have not justify a sole source procurement. entity that can independently evaluate revised this discussion and the final We do not believe specific examples information provided by the recipient circular now states that the provisions would be helpful and might further and prospective contractor. FTA agrees of this paragraph do not apply to cause misunderstanding. In describing that independent sole source architectural engineering contracts. property or services that have unique evaluations would be desirable, but capability and availability, we recognize Subparagraph 6.a(2)(b)—Contracts believes it would be unrealistic to Exceeding $5 Million that property or services with unique or impose a firm requirement for innovative concepts, that have patents independent evaluations. Requirements Rather than engage an outside auditor, or restricted data rights, that would for independent sole source evaluations one commenter has recommended that require substantial duplication costs, or are not expressly authorized by our law a recipient be permitted to use its would require unacceptable delay meet or the Common Grant Rules, and may internal audit staff to perform indirect the standard of having unique capability conflict with State or local procurement costs when required for contracts and availability. Our position is that a procedures. exceeding $5 Million. FTA disagrees. unique or innovative concept qualifies The purpose of using an outside entity as a sole source if it is a new, novel, or Section 5—Incentive Costs and is to obtain an objective review of the changed concept, approach, or method Payments recipient’s rates, profits, and other that is the product of original thinking, One commenter asked whether financial data related to a contract that the details of which are kept incentive payments are available only to must undergo cost analysis. confidential or are patented or contractors that provide accurate cost Section 7—Evaluations copyrighted. The property or services and ridership estimates in connection must also be available to the recipient with a new fixed guideway capital Subsection 7.c—Evaluators only from one source and have not been project and to contractors that enable a One commenter objected to the available in the past to the recipient new fixed guideway capital project to be proposed circular’s implied requirement from another source. We believe completed for less than its original that all proposal evaluations must be situations in which prospective estimated cost. Another commenter performed by auditors or financial acquisitions are limited by patents or objected to that limitation. We agree that management personnel, pointing out restricted data rights, substantial incentive payments should not be that for certain procurements, technical duplication costs, or requiring limited to the two situations described. or public policy personnel should unacceptable delay can be readily The final circular now contains a perform the evaluations. We agree that recognized and need no further reference to the ‘‘Incentive Payments’’ technical and public policy staff should explanation. information in ‘‘Frequently Asked participate in bid or proposal

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evaluations and that a recipient may use highly publicized matters irrespective of involve any of the areas that the FTA auditors and financial management amount in its next quarterly Milestone would review. We disagree. The personnel as they see fit, and have made Progress Report, and at the next Project Common Grant Rules for governmental that revision to the final circular. We Management Oversight review, if any. If recipients require the recipient ‘‘in all have also clarified that the recipient the recipient issues a protest decision instances * * * [to] * * * disclose may contract for those services its staff adverse to the protester, FTA expects information regarding the protest to the are unable to perform. the recipient to notify the FTA Regional awarding agency.’’ FTA reserves the Administrator for the region Subsection 8—Contract Award right to obtain as much information as administering a regional project or the it needs about each protest, although the Subsection 8.a—Award to Other Than FTA Associate Administrator for the amount of information it may request the Lowest Bidder Program Office administering a will vary depending on whether FTA is One commenter recommended that headquarters project directly, so that FTA can be prepared in case of an asked to participate in the costs of the recipient be advised to state its right defending the protest and its resolution. to award the contract to other than the appeal. We included that information in the final circular. The extent of information FTA may low bidder or offeror in its solicitation require will also vary depending on document. We agree, and the final Subsection 1.b—FTA’s Role and whether the protest involves circular has been revised accordingly. Responsibilities controversial or highly publicized Subsection 8.c—Rejections of Bids and Paragraph 1.b(1)—Requirements for the matters. The final circular states that Proposals Protester FTA is particularly interested in any Three commenters recommended that Subparagraph 1.b(1)(a)—Qualify as an protest of an FTA assisted third party the subparagraph discussing bid ‘‘Interested Party’’ contract exceeding $100,000, and any protest of an FTA assisted third party rejection should be expanded to apply One commenter asked whether a contract involving controversial or to both bids and offers or proposals. We subcontractor that has committed to be highly publicized matters irrespective of agree, and have made the revision part of a team that prepared the requested. proposal or bid would be eligible to the amount. G. Chapter VII—Protests, Changes and qualify as an ‘‘interested party’’ and file Section 2—Changes and Modifications Modifications, Disputes, Claims, a protest with FTA, or whether only a Litigation, and Settlements prime contractor or consultant would This section consists of guidance on changes and modifications to third party This chapter consolidates FTA qualify as an ‘‘interested party.’’ Our contracts. We revised the guidance in guidance pertaining to third party response is that a subcontractor does not procurement protests with guidance qualify as an ‘‘interested party’’ that the final circular to accommodate some pertaining to disagreements that may may file a protest with FTA because a of the comments discussed below. emerge during the course of a third subcontractor has only an indirect One commenter requested an party procurement. The chapter now interest in the results of the extensive discussion of the procedures includes discussions of protests, procurement; moreover, a subcontractor for contract changes and modifications. changes and modifications, disputes, does not submit bids or offers to the Our response is that more extensive recipient. The final circular lists various claims, litigation, and settlements. information about changes and entities that either qualify or do not modifications can be found in the Section 1—Protests qualify as an ‘‘interested party’’ that BPPM. Section 1 addresses FTA and the may file a protest with FTA. For recipient’s responsibilities pertaining to example, an established consortium, The same commenter asked that the protests of third party contract joint venture, team, or partnership that final circular include references to other decisions. These provisions are is an actual bidder or offeror would parts of the circular pertaining to substantially similar to those in FTA qualify as an ‘‘interested party’’ that has contract changes. In Chapter I, section 5 Circular 4220.1E. It adds a new a direct economic interest in the results of the final circular, we have established discussion of FTA’s practice of of the procurement. An individual definitions for ‘‘cardinal change,’’ reviewing only those protests of an member of a consortium, joint venture, ‘‘change order,’’ and ‘‘constructive ‘‘interested party,’’ which must be an team, or partnership, acting solely for change.’’ We are not using the term actual or prospective bidder or offeror itself, however, would not qualify as an ‘‘constructive change order’’ in the final with a direct economic interest in the ‘‘interested party.’’ An association or circular. The final circular includes third party contract award. organization that does not perform information about changes in Chapter contracts also would not qualify as an IV, paragraph 2.b(3) in connection with Subsection 1.a—The Recipient’s Role ‘‘interested party.’’ period of performance, in Chapter IV, and Responsibilities Paragraph 1.b(2)—Extent of FTA Review subparagraph 2.b(6)(a) in connection Paragraph 1.a(2)—Responsibilities to with protecting against performance In view of FTA’s decision to limit its FTA difficulties, and Chapter V, paragraph review of third party contract protests to 7.b(2) in connection with assignment of Subparagraph 1.a(2)(a)—Timely a recipient’s failure to have or to follow Notification its protest procedures, a recipient’s contract rights. Three commenters asked who the failure to review a complaint or protest, Section 3—Disputes recipient should notify when it receives or allegations of violations of Federal a third party contract protest. Our law or regulations, one commenter The final circular changes the location response is that FTA expects the complained that FTA’s requirements for of the section on disputes with the recipient to report any current or recipients are very detailed and impose section on claims set forth in the prospective third party contract protest additional administrative burdens on proposed circular, and adds more involving more than $100,000, and any the recipient to report each protest to information in response to comments protests involving controversial or the FTA even if the protest does not we received as described below.

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Subsection 3.a—The Recipient’s Role and argued that for FTA to delay in part with the commenter’s and Responsibilities participation in settlement costs until an observations. The final circular has been Paragraph 3.a(1)—Notify FTA about audit has been completed could revised to clarify that, in resolving third Disputes unnecessarily hamper negotiations and party contract claims, FTA expects the delay closure of the project. Our recipient to take reasonable measures to One commenter asked whom the response is that a recipient should rely pursue its rights and remedies available recipient should notify when it becomes on itself to finance its own settlements, under law, including settlement, involved in a dispute related to a third with the use of project funds that have particularly if failure to do so would party contract. Our response is that FTA been awarded for the contract under the jeopardize the Federal interest in the expects the recipient to report any grant or cooperative agreement to the project or cause the recipient to seek current or prospective third party extent that settlement costs are additional Federal assistance. contract dispute involving more than supportable under the Federal cost The same commenter argued that $100,000, and any dispute involving principles that apply to the recipient. providing the level of documentation controversial or highly publicized The recipient should not rely on FTA to specified in the proposed circular matters irrespective of amount, in its provide any extra Federal assistance would have the potential of violating next quarterly Milestone Progress beyond the amount previously awarded attorney/client privilege, and that Report, and at the next Project to support the settlement. providing documentation relative to any Management Oversight review, if any. The same commenter asked why FTA disputed negotiations is very different The final circular contains that would recommend an audit after the from producing procurement files information. recipient has reached a settlement relative to a particular solicitation. Paragraph 3.a(2)—Adequate agreement. We consider an audit to be While FTA understands that providing Documentation a tool that the recipient can use to information in connection with claims justify that the settlement is necessary, or litigation can be difficult, FTA One commenter argued that requiring reasonable, adequately documented, reserves the right to review the the recipient to include all pertinent and that FTA should participate in its recipient’s records and supporting facts, events, negotiations, applicable costs. documentation that would justify the laws, and a legal evaluation of the use of FTA assistance to support the likelihood of success in any potential Section 4—Claims and Litigation costs resulting from the claim or litigation pertaining to a dispute appears In addition to changing the location of litigation. The amount of information to imply that FTA would question any the section on claims with the section FTA may request will vary depending settlement the recipient arranges unless on disputes as set forth in the proposed on the nature of the claim or litigation. there is no likelihood of successful circular, the final circular includes a FTA is particularly interested in any litigation. The commenter also added discussion of litigation and also current or prospective major third party that while some disputes may lead to includes more information in response contract claim or litigation in amounts litigation, many should be settled. We to comments we received as described exceeding $100,000, and any claim or agree in principle that many disputes below. litigation involving controversial or may best be resolved through highly publicized matters irrespective of settlement. But whether or not FTA Subsection 4.a—The Recipient’s Role the amount relating to any third party seeks access to the recipient’s records and Responsibilities contract. The final circular contains that pertaining to a dispute, FTA expects the One commenter asked us to clarify information. recipient to include adequate whether the Common Grant Rules’ documentation in its project files of the assignment of responsibility to the Subsection 4.b—FTA’s Role and facts, events, negotiations, applicable recipient to resolve third party contract Responsibilities laws, and a legal evaluation of the claims means that the recipient is Paragraph 4.b(1)—Proceeds Recovered likelihood of success in any potential expected to resolve claims made under litigation proceeding as may be its third party contracts or claims One commenter pointed out that it necessary to justify FTA’s concurrence against the contractor made by third may not be possible to calculate the in the compromise or settlement of the parties. FTA’s interpretation of the amount of proceeds a recipient recovers claim, should FTA determine its Common Grant Rules is that the in proportion to the Federal share concurrence would be necessary. recipient is expected to resolve claims committed to the project. The amount of Maintaining adequate documentation of made under its third party contracts, but ‘‘any net proceeds’’ may not have a a dispute or other significant event will not claims against the contractor made direct correlation to a portion of an likely benefit the recipient, even if FTA by third parties. We have revised the overall project. Except for unusual does not inspect those records. The circular to make that clarification. circumstances, we disagree. We believe amount of information FTA may request that equitable calculations of the Paragraph 4.a(2)—Legal Rights and will vary depending upon the nature of Federal share committed to a project or Remedies the claim. FTA is particularly interested part of a project may in some instances in any current or prospective major The same commenter complained be difficult, but not impossible. dispute exceeding $100,000, and any about the provision in the proposed Moreover, the last sentence of 49 U.S.C. dispute involving controversial or circular directing the recipient to pursue 5309(h)(6) requires proportionate highly publicized matters irrespective of all legal rights and remedies available refunds of the Federal share when amount relating to any third party under any third party contract, claiming reductions in the net project costs of contract. The final circular contains that that doing so would preclude settlement capital investment projects are made. information. of minor disputes until all contract The Common Grant Rules provide that remedies, including termination or recipients should expend refunds and Paragraph 3.a(3)—Audit litigation, have been exhausted. The rebates for project costs before The same commenter expressed commenter pointed out that such an requesting further payments from the concerns about our recommendation interpretation would have significant Federal Government, which would have that the recipient obtain a project audit, adverse effects on the project. We agree the effect of providing some, if not a

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strictly proportionate, refund of Federal settlement before FTA has declared a revised the final circular to clarify assistance to the Federal grantor agency. special interest in the matter at issue, FTA’s views that the situations then the recipient would not be able to described in the paragraph do not Paragraph 4.b(2)—Liquidated Damages obtain FTA’s review and concurrence in always mean that FTA will not provide One commenter asked whether in advance. In such a case, if after the all or some Federal assistance negotiating a settlement, the recipient recipient agreed to a settlement and contemplated, or that FTA will could exchange its rights to liquidated FTA became interested in the project withdraw all or some Federal assistance damages for extra property or services. due to allegations of program previously awarded, or that FTA will We agree that in some situations doing management concerns, possible attempt to recover all or some Federal so would be reasonable. The final mismanagement, impropriety, waste, or assistance used in the situation. circular includes a new paragraph fraud, FTA could refuse to participate in The commenter asked that FTA addressing that matter. the costs of activities associated with remove its examples of specific Section 5—FTA Participation in those improprieties, and even recover circumstances in which FTA might not Settlements, Arbitration Awards, and the Federal assistance used to support participate in project costs unless those Court Awards those improprieties. The purpose of circumstances are exhaustive. FTA obtaining FTA review and concurrence disagrees. Not knowing all the Much of the guidance in this section is to gain assurance that the costs of possibilities that can affect a project, we has been transferred from FTA Circular specific activities, including are unable to provide an all-inclusive 5010.1C, ‘‘Grant Management procurements, will be eligible for FTA list of examples that might cause FTA Guidelines,’’ 10–01–98 substantially assistance. to reduce, withdraw, or seek recovery of intact, modified to accommodate the all or some Federal assistance. We comments we received as discussed Subsection 5.b—FTA’s Prerogatives believe these examples can be useful below. Paragraph 5.b(2)—Provide Federal indications of situations of concern to Subsection 5.a—The Recipient’s Assistance FTA. Another commenter implied that Responsibilities The same commenter expressed failure by FTA or its oversight Paragraph 5.a(1)—Settlement concerns that FTA will fund only a contractors to note and correct errors the Arrangements Must Be Reasonable portion of eligible costs of contractor’s recipient has made should affect FTA’s claims. Our response is as follows: To One commenter asked that FTA decision to participate in the costs of the extent that the recipient has not discuss settlements in lieu of liquidated resolving protests, disputes, claims or used all or part of the FTA assistance damages that substitute additional litigation in which the recipient budgeted for the activity that was the services or equipment for cash otherwise might be found to be at fault. subject of a dispute, claim, or litigation, payments, possibly resulting in benefits We disagree. FTA pays its ‘‘oversight’’ the recipient may use the funds so to all parties. We agree that, in certain contractors only to perform ‘‘oversight’’ budgeted to pay the costs of the situations, substitutions of extra and report their findings and settlement or resolution of the matter. property or services rather than recommendations to FTA. Neither FTA Any additional FTA assistance that liquidated damages payments could nor its oversight contractors act as a could be provided would depend on the constitute all or part of a reasonable recipient’s quality control agents nor do availability of all or part of the FTA settlement. FTA also recognizes that in they make decisions for recipients. Any assistance requested. Even if all the certain instances a settlement may perceived failure of FTA or its oversight requested FTA assistance were require the recipient to relinquish its contractors to note and correct a available, we cannot assure that FTA claims for all or part of the liquidated recipient’s error does not indicate FTA’s will be able to provide a sufficient damages and other amounts the concurrence in the recipient’s action, amount of Federal assistance to pay for recipient would be owed if it prevailed nor does it impose any liability on FTA. on all matters at issue. The final circular the entire Federal share of those costs. includes a new paragraph explaining Nevertheless, FTA generally attempts, Appendix A—References FTA’s views on reasonable settlements. subject to availability of funds, to One commenter provided provide FTA assistance in the recommendations about changes to Subparagraph 5.a(3)(c)—Special Federal percentage that matches the percentage Interest or Federal Concern citations as listed in the Appendix. The of the original award. However, any final circular includes most of those We have amended the heading of this expenditure of FTA assistance is also recommended changes. subparagraph to include the term subject to the requirement that the costs ‘‘Federal Concern,’’ which is sometimes claimed be reasonable, allowable, and Appendix B—FTA Regional and used interchangeably with ‘‘Special allocable. Metropolitan Office Contact Federal Interest.’’ We believe it is in the Information best interests of the recipient to obtain Paragraph 5.b(3)—Deny Federal Assistance The final circular’s list of regional and FTA review and written concurrence in metropolitan office contact information settlements when a special Federal Three commenters objected to the list now includes the Philadelphia interest or concern is declared due to of situations in which FTA may Metropolitan Office, which was program management concerns, possible determine the extent to which FTA erroneously omitted. mismanagement, impropriety, waste, or assistance could be used for their fraud. One commenter requested that support. The commenters pointed out Appendix C—Third Party Contracting we explain when and how the recipient that many of the situations listed Checklists should be aware that a special Federal involving the recipient, the contractor, In response to one commenter’s interest in a project is ‘‘declared,’’ and and other jurisdictions or entities may request for review aids and worksheets, complained that, as written, the be a result from judgments entered into the final circular now includes a new declaration could be an after-the-fact in good faith that turned out bad, rather Appendix C with checklists including action by FTA. Our response is that if than matters of negligence or references to specific sections of the the recipient has entered into a incompetence. We agree, and have final circular.

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Appendix D—Federally Required and Education, Room 1332, Department of Financial Literacy to discuss new Other Model Clauses the Treasury, 1500 Pennsylvania agenda items, update the President’s In response to one commenter’s Avenue, NW., Washington, DC 20220. Advisory Council on Financial Literacy In general, the Department will post request for clause matrices, the final on the work of the committees and all statements on its Web site (http:// circular now includes a new Appendix follow-up on issues from previous www.treasury.gov/offices/domestic- D with matrices identifying the various meetings. finance/financial-institution/fin- clauses and contract provisions that Dated: September 24, 2008. education/council/index.shtml) without might be required. Taiya Smith, change, including any business or Executive Secretary, Treasury Department. Index personal information provided such as names, addresses, e-mail addresses, or [FR Doc. E8–22941 Filed 9–29–08; 8:45 am] One commenter asked us to include BILLING CODE 4810–42–P ‘‘piggybacking’’ and ‘‘tag-on’’ to the telephone numbers. The Department index. We agree, and the final circular will make such statements available for public inspection and copying in the includes those terms in this index. DEPARTMENT OF THE TREASURY The same commenter asked that topic Department’s library, Room 1428, Main headings be formatted to stand out more Department Building, 1500 Office of Thrift Supervision clearly. The final circular includes these Pennsylvania Avenue, NW., changes. Washington, DC 20220, on official Ameribank, Northfork, WV; Notice of business days between the hours of 10 Appointment of Receiver Issued in Washington, DC, this 24th day of a.m. and 5 p.m. You can make an September, 2008. appointment to inspect statements by Notice is hereby given that, pursuant James S. Simpson, telephoning (202) 622–0990. All to the authority contained in section Administrator. statements, including attachments and 5(d)(2) of the Home Owners’ Loan Act, [FR Doc. E8–22914 Filed 9–29–08; 8:45 am] other supporting materials, received are the Office of Thrift Supervision has duly appointed the Federal Deposit Insurance BILLING CODE 4910–57–P part of the public record and subject to public disclosure. You should submit Corporation as sole Receiver for only information that you wish to make Ameribank, Northfork, West Virginia (OTS No. 14177). DEPARTMENT OF THE TREASURY available publicly. FOR FURTHER INFORMATION CONTACT: Dated: September 23, 2008. Open Meeting of the President’s Edwin Bodensiek, Director of Outreach, By the Office of Thrift Supervision. Advisory Council on Financial Literacy Department of the Treasury, Main Sandra E. Evans, AGENCY: Office of Financial Education, Department Building, 1500 Federal Register Liaison. Treasury. Pennsylvania Avenue, NW., [FR Doc. E8–22744 Filed 9–29–08; 8:45 am] Washington, DC 20220, at ACTION: BILLING CODE 6720–01–M Notice of meeting. [email protected]. SUMMARY: The President’s Advisory SUPPLEMENTARY INFORMATION: In Council on Financial Literacy will accordance with section 10(a) of the DEPARTMENT OF VETERANS convene its fifth meeting on Tuesday, Federal Advisory Committee Act, 5 AFFAIRS October 14, 2008, in the Cash Room of U.S.C. App. and the regulations the Main Department Building, 1500 thereunder, Dubis Correal, Designated Advisory Committee on Women Pennsylvania Avenue, NW., Federal Officer of the Advisory Council, Veterans; Notice of Meeting Washington, DC beginning at 2 p.m. has ordered publication of this notice The Department of Veterans Affairs Eastern Time. The meeting will be open that the President’s Advisory Council on (VA) gives notice under Public Law 92– to the public. Financial Literacy will convene its fifth 463 (Federal Advisory Committee Act) DATES: The meeting will be held on meeting on Tuesday, October 14, 2008, that the Advisory Committee on Women Tuesday, October 14, 2008, at 2 p.m. in the Cash Room in the Main Veterans will meet October 28–30, 2008 Eastern Time. Department Building, 1500 at the Capital Hilton, 16th and K Street, ADDRESSES: The President’s Advisory Pennsylvania Avenue, NW., NW., Washington, DC, from 8:30–4:30 Council on Financial Literacy will Washington, DC, beginning at 2 p.m. p.m., each day. The meeting is open to convene its fifth meeting in the Cash Eastern Time. The meeting will be open the public. Room of the Main Department Building, to the public. Because the meeting will The purpose of the Committee is to 1500 Pennsylvania Avenue, NW., be held in a secured facility, members advise the Secretary of Veterans Affairs Washington, DC. of the public who plan to attend the regarding the needs of women veterans Submission of Writen Comments: The meeting must contact the Office of with respect to health care, public is invited to submit written Financial Education at 202–622–1783 or rehabilitation, compensation, outreach, statements with the President’s [email protected] and other programs and activities Advisory Council on Financial Literacy by 5 p.m. Eastern Time on Friday, administered by the VA designed to by any one of the following methods: October 10, 2008, to inform the meet such needs. The Committee will Department of their desire to attend the make recommendations to the Secretary Electronic Statements meeting and to provide the information regarding such programs and activities. E-mail that will be required to facilitate entry On October 28, the agenda will [email protected]; into the Main Department Building. To include overviews of the Veterans or enter the building, attendees should e- Health Administration, the Veterans mail the Department their full name, Benefits Administration, the National Paper Statements date of birth, social security number, Cemetery Administration, an update on Send paper statements in triplicate to organization, and country of citizenship. the 2008 Advisory Committee on President’s Advisory Council on The purpose of this meeting is for the Women Veterans Report, and an update Financial Literacy, Office of Financial President’s Advisory Council on on the activities conducted by the

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Center for Women Veterans. On October programs, and VA’s homeless programs. may attend, appear before, or file 29, the agenda will include discussion The agenda is tentative and is subject to statements with the Committee. Written on legislation related to women change. statements must be filed before the veterans, women veterans’ health, Any member of the public wishing to meeting, or within 10 days after the updates to recommendations made in attend should contact Ms. Shannon L. meeting. Middleton, at the Department of the 2008 Advisory Committee on Dated: September 24, 2008. Women Veterans Report, updates from Veterans Affairs, Center for Women By Direction of the Secretary. the Department of Labor, and VA’s Veterans (00W), 810 Vermont Avenue, NW., Washington, DC 20420. Ms. suicide prevention initiatives. On E. Phillip Riggin, Middleton may be contacted either by October 30, the agenda will include Committee Management Officer. phone at (202) 461–6193, fax at (202) [FR Doc. E8–22910 Filed 9–29–08; 8:45 am] updates on rural health, military sexual 273–7092, or e-mail at assault prevention and response [email protected]. Interested persons BILLING CODE 8320–01–P

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Part II

Department of Homeland Security 6 CFR Part 5 Privacy Act of 1974: Implementation of Exemptions; System of Records; Final Rules and Notice

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DEPARTMENT OF HOMELAND with the provisions of the Paperwork B. Paperwork Reduction Act SECURITY Reduction Act of 1995, 44 U.S.C. 3501, The Paperwork Reduction Act of 1995 DHS has determined that this final rule (PRA) (44 U.S.C. 3501 et seq.) requires Office of the Secretary would not impose new record keeping, that DHS consider the impact of application, reporting, or other types of paperwork and other information 6 CFR Part 5 information collection requirements. collection burdens imposed on the [Docket No. DHS–2008–0090] Public Comments public and, under the provisions of PRA section 3507(d), obtain approval from Privacy Act of 1974: Implementation of I&A received no comments on the the Office of Management and Budget Exemptions; Privacy Act; Office of system of records notice and notice of (OMB) for each collection of Intelligence and Analysis Enterprise proposed rulemaking. I&A will information it conducts, sponsors, or Records System implement the rulemaking as proposed. requires through regulations. DHS has determined that there are no current or AGENCY: Privacy Office, DHS. Regulatory Requirements new information collection ACTION: Final rule. A. Regulatory Impact Analyses requirements associated with this rule. SUMMARY: The Department of Homeland Changes to Federal regulations must C. Executive Order 13132, Federalism Security is issuing a final rule to amend undergo several analyses. In conducting its regulations to exempt portions of a This action will not have a substantial these analyses, DHS has determined: new system of records entitled the direct effect on the States, on the relationship between the national ‘‘Office of Intelligence and Analysis 1. Executive Order 12866 Assessment (I&A) Enterprise Records System (ERS)’’ Government and the States, or on the from certain provisions of the Privacy This rule is not a significant distribution of power and Act. Specifically, the Department regulatory action under Executive Order responsibilities among the various exempts portions of the ERS system 12866, ‘‘Regulatory Planning and levels of government, and therefore will from one or more provisions of the Review’’ (as amended). Accordingly, not have federalism implications. Privacy Act because of criminal, civil, this rule has not been reviewed by the D. Environmental Analysis Office of Management and Budget and administrative enforcement DHS has reviewed this action for requirements. (OMB). Nevertheless, DHS has reviewed this rulemaking, and concluded that purposes of the National Environmental DATES: Effective Date: This final rule is there will not be any significant Policy Act of 1969 (NEPA) (42 U.S.C. effective September 30, 2008. economic impact. 4321–4347) and has determined that FOR FURTHER INFORMATION CONTACT: For this action will not have a significant general questions, please contact the 2. Regulatory Flexibility Act Assessment effect on the human environment. Information Sharing and Knowledge Pursuant to section 605 of the E. Energy Impact Management Division, Office of Regulatory Flexibility Act (RFA), 5 Intelligence and Analysis, Department The energy impact of this action has U.S.C. 605(b), as amended by the Small of Homeland Security, Washington, DC been assessed in accordance with the Business Regulatory Enforcement and 20528. For privacy issues, please Energy Policy and Conservation Act Fairness Act of 1996 (SBREFA), DHS contact: Hugo Teufel III, Chief Privacy (EPCA) Public Law 94–163, as amended certifies that this rule will not have a Officer, Department of Homeland (42 U.S.C. 6362). This rulemaking is not significant impact on a substantial Security, Washington, DC 20528. a major regulatory action under the number of small entities. The rule provisions of the EPCA. SUPPLEMENTARY INFORMATION: would impose no duties or obligations List of Subjects in 6 CFR Part 5 Background on small entities. Further, the exemptions to the Privacy Act apply to Freedom of information; Privacy. The Department of Homeland individuals, and individuals are not ■ For the reasons stated in the preamble, Security (DHS) published a notice of covered entities under the RFA. proposed rulemaking in the Federal DHS amends Chapter I of Title 6, Code Register, 73 FR 28060, May 15, 2008, 3. International Trade Impact of Federal Regulations, as follows: proposing to exempt portions of the Assessment PART 5—DISCLOSURE OF RECORDS system of records from one or more AND INFORMATION provisions of the Privacy Act because of This rulemaking will not constitute a criminal, civil, and administrative barrier to international trade. The ■ 1. The authority citation for Part 5 enforcement requirements. The system exemptions relate to criminal continues to read as follows: of records is the Office of Intelligence investigations and agency documentation and, therefore, do not Authority: Pub. L. 107–296, 116 Stat. 2135, and Analysis Enterprise Records System 6 U.S.C. 101 et seq.; 5 U.S.C. 301. Subpart A (ERS). The ERS system of records notice create any new costs or barriers to trade. also issued under 5 U.S.C. 552. was published concurrently in the 4. Unfunded Mandates Assessment ■ Federal Register, 73 FR 28128, May 15, 2. At the end of Appendix C to Part 2008, and comments were invited on Title II of the Unfunded Mandates 5, add the following new paragraph 7 to both the proposed rule and SORN. No Reform Act of 1995 (UMRA), (Pub. L. read as follows: comments were received. 104–4, 109 Stat. 48), requires Federal Appendix C to Part 5—DHS Systems of Pursuant to the requirements of the agencies to assess the effects of certain Records Exempt From the Privacy Act Regulatory Flexibility Act, 5 U.S.C. 601– regulatory actions on State, local, and * * * * * 612, DHS certifies that these regulations tribal governments, and the private 7. The Office of Intelligence and Analysis will not significantly affect a substantial sector. This rulemaking will not impose (I&A) Enterprise Records System (ERS) number of small entities. The final rule an unfunded mandate on State, local, or consists of records including intelligence imposes no duties or obligations on tribal governments, or on the private information and other properly acquired small entities. Further, in accordance sector. information received from agencies and

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components of the federal government, in section 2(9) of the Homeland Security Act concern individual rights of access to and foreign governments, organizations or of 2002) and ‘‘critical infrastructure’’ (as amendment of records (including the review entities, international organizations, state and defined in 42 U.S.C. 5195c(c)) of the United of agency denials of either) contained in this local government agencies (including law States, including the cyber and national system, which consists of intelligence, enforcement agencies), and private sector telecommunications infrastructure and the counterterrorism, homeland security, and entities, as well as information provided by availability of a viable national security and related investigatory records concerning individuals, regardless of the medium used emergency preparedness communications efforts of the Department, as described more to submit the information or the agency to infrastructure; (4) activities detrimental to the fully in subsection (b)(1), above. Compliance which it was submitted. This system also security of transportation and transportation with these provisions could inform or alert contains: Information regarding persons on systems; (5) activities which violate or are the subject of an intelligence, watch lists with known or suspected links to suspected of violating the laws relating to counterterrorism, homeland security, or terrorism; the results of intelligence analysis counterfeiting of obligations and securities of investigatory effort undertaken on behalf of and reporting; ongoing law enforcement the United States and other financial crimes, the Department, or by another agency with investigative information, information including access device fraud, financial whom DHS is cooperating, of the fact and systems security analysis and reporting; institution fraud, identity theft, computer nature of such efforts, and/or the relevant active immigration, customs, border and fraud; and computer-based attacks on our intelligence, counterterrorism, homeland transportation, security related records; nation’s financial, banking, and security, or investigatory interest of DHS historical law enforcement, operational, telecommunications infrastructure; (6) and/or other intelligence, counterterrorism, immigration, customs, border and activities, not wholly conducted within the or law enforcement agencies. Moreover, transportation security, and other United States, which violate or are suspected compliance could also compromise sensitive administrative records; relevant and of violating the laws which prohibit the information either classified in the interest of appropriately acquired financial information; production, transfer, or sale of narcotics or national security, or which otherwise and public-source data such as that substances controlled in accordance with requires, as appropriate, safeguarding and contained in media reports and commercially Title 21 of the United States Code, or those protection from unauthorized disclosure; available databases, as appropriate. Data associated activities otherwise prohibited by identify a confidential source or disclose about the providers of information, including Titles 21 and 46 of the United States Code; information which would constitute an the means of transmission of the data, is also (7) activities which impact, concern, or unwarranted invasion of another individual’s retained. otherwise threaten the safety and security of personal privacy; reveal a sensitive (a) Pursuant to 5 U.S.C. 552a(k)(1), (2), (3), the President and Vice President, their intelligence or investigative technique or and (5), this system of records is exempt from families, heads of state, and other designated method, including interfering with 5 U.S.C. 552a(c)(3), (d)(1), (2), (3), (4), and (5), individuals; the White House, Vice intelligence or law enforcement investigative (e)(1), (e)(4)(G), (H), and (I), and (f). These President’s residence, foreign missions, and processes by permitting the destruction of exemptions apply only to the extent that other designated buildings within the United evidence, improper influencing or information in this system is subject to States; (8) activities which impact, concern, intimidation of witnesses, fabrication of exemption. Where compliance would not or otherwise threaten domestic maritime statements or testimony, and flight from appear to interfere with or adversely affect safety and security, maritime mobility and detection or apprehension; or constitute a the intelligence, counterterrorism, homeland navigation, or the integrity of the domestic potential danger to the health or safety of security, and related law enforcement maritime environment; (9) activities which intelligence, counterterrorism, homeland purposes of this system, the applicable impact, concern, or otherwise threaten the security, and law enforcement personnel, exemption may be waived by DHS. national operational capability of the confidential sources and informants, and (b) Exemptions from the particular Department to respond to natural and potential witnesses. Amendment of the subsections are justified for the following manmade major disasters and emergencies, records would interfere with ongoing reasons: including acts of terrorism; (10) activities intelligence, counterterrorism, homeland (1) From subsection (c)(3) (Accounting for involving the importation, possession, security, and law enforcement investigations Disclosures) because making available to a storage, development, or transportation of and activities, including incident reporting record subject the accounting of disclosures nuclear or radiological material without and analysis activities, and impose an from records concerning him/her would authorization or for use against the United impossible administrative burden by specifically reveal any interest in the States; requiring investigations, reports, and individual of an intelligence, (iv) Foreign governments, organizations, or analyses to be continuously reinvestigated counterterrorism, homeland security, or persons (foreign powers); and and revised. related investigative nature. Revealing this (v) Individuals engaging in intelligence (3) From subsection (e)(1) (Relevant and information could reasonably be expected to activities on behalf of a foreign power or Necessary) because it is not always possible compromise ongoing efforts of the terrorist group. for DHS to know in advance of its receipt the Department to identify, understand, analyze, Thus, by notifying the record subject that relevance and necessity of each piece of investigate, and counter the activities of: he/she is the focus of such efforts or interest information it acquires in the course of an (i) Known or suspected terrorists and on the part of DHS, or other agencies with intelligence, counterterrorism, or terrorist groups; whom DHS is cooperating and to whom the investigatory effort undertaken on behalf of (ii) Groups or individuals known or disclosures were made, this information the Department, or by another agency with believed to be assisting or associated with could permit the record subject to take whom DHS is cooperating. In the context of known or suspected terrorists or terrorist measures to impede or evade such efforts, the authorized intelligence, counterterrorism, groups; including the taking of steps to deceive DHS and investigatory activities undertaken by (iii) Individuals known, believed to be, or personnel and deny them the ability to DHS personnel, relevance and necessity are suspected of being engaged in activities adequately assess relevant information and questions of analytic judgment and timing, constituting a threat to homeland security, activities, and could inappropriately disclose such that what may appear relevant and including (1) activities which impact or to the record subject the sensitive methods necessary when acquired ultimately may be concern the security, safety, and integrity of and/or confidential sources used to acquire deemed unnecessary upon further analysis our international borders, including any the relevant information against him/her. and evaluation. Similarly, in some situations, illegal activities that either cross our borders Moreover, where the record subject is the it is only after acquired information is or are otherwise in violation of the actual target of a law enforcement collated, analyzed, and evaluated in light of immigration or customs laws and regulations investigation, this information could permit other available evidence and information that of the United States; (2) activities which him/her to take measures to impede the its relevance and necessity can be established could reasonably be expected to assist in the investigation, for example, by destroying or made clear. Constraining the initial development or use of a weapon of mass evidence, intimidating potential witnesses, or acquisition of information included within effect; (3) activities meant to identify, create, avoiding detection or apprehension. the ERS in accordance with the relevant and or exploit the vulnerabilities of, or (2) From subsections (d)(1), (2), (3), and (4) necessary requirement of subsection (e)(1) undermine, the ‘‘key resources’’ (as defined (Access to Records) because these provisions could discourage the appropriate receipt of

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and access to information which DHS and DEPARTMENT OF HOMELAND comment is provided below. The I&A are otherwise authorized to receive and SECURITY Department is adopting the proposed possess under law, and thereby impede rule as final. Additionally, a Privacy efforts to detect, deter, prevent, disrupt, or Office of the Secretary Impact Assessment for MAGNET is apprehend terrorists or terrorist groups, and/ posted on the Department’s privacy Web or respond to terrorist or other activities 6 CFR Part 5 site. (See http://www.dhs.gov/privacy which threaten homeland security. [Docket No. DHS–2008–0080] and follow the link to ‘‘Privacy Impact Notwithstanding this claimed exemption, Assessments’’). which would permit the acquisition and Privacy Act of 1974: Implementation of Pursuant to the requirements of the temporary maintenance of records whose Exemptions; Maritime Awareness Regulatory Flexibility Act, 5 U.S.C. 601– relevance to the purpose of the ERS may be Global Network (MAGNET) 612, DHS certifies that these regulations less than fully clear, DHS will only disclose will not significantly affect a substantial such records after determining whether such AGENCY: Privacy Office, DHS. number of small entities. The final rule disclosures are themselves consistent with ACTION: Final rule. imposes no duties or obligations on the published ERS routine uses. Moreover, it small entities. Further, in accordance should be noted that, as concerns the receipt SUMMARY: On May 15, 2008, the with the provisions of the Paperwork by I&A, for intelligence purposes, of Department of Homeland Security Reduction Act of 1995, 44 U.S.C. 3501, information in any record which identifies a originally published the SORN and DHS has determined that this final rule U.S. Person, as defined in Executive Order associated proposed rulemaking for the would not impose new recordkeeping, 12333, as amended, such receipt, and any Maritime Awareness Global Network application, reporting, or other types of subsequent use or dissemination of that (MAGNET) (DHS/USCG–061) in the information collection requirements. identifying information, is undertaken Federal Register. The Department of consistent with the procedures established Homeland Security is issuing a final Public Comments and adhered to by I&A pursuant to that rule to amend its regulations to exempt USCG received one public comment. Executive Order. Specifically, I&A portions of a new system of records The comment received was submitted intelligence personnel may acquire entitled the ‘‘United States Coast under the incorrect docket number for information which identifies a particular U.S. Guard’s Maritime Awareness Global the MAGNET NPRM and was related to Person, retain it within or disseminate it from Network (MAGNET)’’ from certain a different notice. No other comments ERS, as appropriate, only when it is provisions of the Privacy Act. were submitted. Accordingly, the determined that the personally identifying Specifically, the Department exempts Department is adopting the proposed information is necessary for the conduct of portions of the MAGNET system from rule as final. I&A’s functions, and otherwise falls into one one or more provisions of the Privacy Regulatory Requirements of a limited number of authorized categories, Act because of criminal, civil, and each of which reflects discrete activities for administrative enforcement A. Regulatory Impact Analyses which information on individuals would be requirements. utilized by the Department in the overall Changes to Federal regulations must execution of its statutory mission. DATES: Effective Date: This final rule is undergo several analyses. In conducting (4) From subsections (e)(4) (G), (H) and (I) effective September 30, 2008. these analyses, DHS has determined: (Access), and (f) (Agency Rules), inasmuch as FOR FURTHER INFORMATION CONTACT: 1. Executive Order 12866 Assessment it is unnecessary for the publication of rules Department of Homeland Security This rule is not a significant and procedures contemplated therein since United States Coast Guard (Mr. Mike regulatory action under Executive Order the ERS, pursuant to subsections (1) and (2), Payne), Intelligence Division (CG–26), 12866, ‘‘Regulatory Planning and above, will be exempt from the underlying 2100 2nd Street, SW., Washington, DC Review’’ (as amended). Accordingly, duties to provide to individuals notification 20593–0001; Hugo Teufel III, Chief this rule has not been reviewed by the about, access to, and the ability to amend or Privacy Officer, Privacy Office, Office of Management and Budget correct the information pertaining to them in, Department of Homeland Security, (OMB). Nevertheless, DHS has reviewed this system of records. Furthermore, to the Washington, DC 20528; telephone 703– this rulemaking, and concluded that extent that subsection (e)(4)(I) is construed to 235–0780. there will not be any significant require more detailed disclosure than the SUPPLEMENTARY INFORMATION: information accompanying the system notice economic impact. for ERS, as published in today’s Federal Background 2. Regulatory Flexibility Act Assessment Register, exemption from it is also necessary The Department of Homeland Pursuant to section 605 of the to protect the confidentiality, privacy, and Security (DHS) published a notice of Regulatory Flexibility Act (RFA), 5 physical safety of sources of information, as proposed rulemaking in the Federal U.S.C. 605(b), as amended by the Small well as the methods for acquiring it. Finally, Register, 73 FR 28066 (15 May 2008), greater specificity concerning the description Business Regulatory Enforcement and proposing to exempt portions of the Fairness Act of 1996 (SBREFA), DHS of categories of sources of properly classified system of records from one or more records could also compromise or otherwise certifies that this rule will not have a provisions of the Privacy Act because of significant impact on a substantial cause damage to the national or homeland criminal, civil, and administrative security. number of small entities. The rule enforcement requirements. The system would impose no duties or obligations Hugo Teufel III, of records is the United States Coast on small entities. Further, the Chief Privacy Officer, Department of Guard’s Maritime Awareness Global exemptions to the Privacy Act apply to Homeland Security. Network (MAGNET). The MAGNET individuals, and individuals are not [FR Doc. E8–22603 Filed 9–29–08; 8:45 am] system of records notice (SORN) was covered entities under the RFA. published concurrently in the Federal BILLING CODE 4410–10–P Register, 73 FR 28143 (15 May 2008), 3. International Trade Impact and comments were invited on both the Assessment proposed rule and SORN. One comment This rulemaking will not constitute a was received and the response to the barrier to international trade. The

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exemptions relate to criminal PART 5—DISCLOSURE OF RECORDS (iii) Individuals known, believed to be, or investigations and agency AND INFORMATION suspected of being engaged in activities documentation and, therefore, do not constituting a threat to homeland security, ■ including (1) activities which impact or create any new costs or barriers to trade. 1. The authority citation for Part 5 continues to read as follows: concern the security, safety, and integrity of 4. Unfunded Mandates Assessment our international borders, including any Authority: Pub. L. 107–296, 116 Stat. 2135, illegal activities that either cross our borders 6 U.S.C. 101 et seq.; 5 U.S.C. 301. Subpart A or are otherwise in violation of the Title II of the Unfunded Mandates also issued under 5 U.S.C. 552. Reform Act of 1995 (UMRA) (Pub. L. immigration or customs laws and regulations of the United States; (2) activities which 104–4, 109 Stat. 48) requires Federal ■ 2. At the end of Appendix C to Part 5, add the following new paragraph 8 to could reasonably be expected to assist in the agencies to assess the effects of certain development or use of a weapon of mass regulatory actions on State, local, and read as follows: effect; (3) activities meant to identify, create, tribal governments, and the private Appendix C to Part 5—DHS Systems of or exploit the vulnerabilities of, or sector. This rulemaking will not impose Records Exempt From the Privacy Act undermine, the ‘‘key resources’’ (as defined an unfunded mandate on State, local, or in section 2(9) of the Homeland Security Act tribal governments, or on the private * * * * * of 2002) and ‘‘critical infrastructure’’ (as 8. The information in MAGNET establishes defined in 42 U.S.C. 5195c(c)) of the United sector. Maritime Domain Awareness. Maritime States, including the cyber and national B. Paperwork Reduction Act Domain Awareness is the collection of as telecommunications infrastructure and the much information as possible about the availability of a viable national security and The Paperwork Reduction Act of 1995 maritime world. In other words, MAGNET emergency preparedness communications (PRA) (44 U.S.C. 3501 et seq.) requires establishes a full awareness of the entities infrastructure; (4) activities detrimental to the (people, places, things) and their activities security of transportation and transportation that DHS consider the impact of within the maritime industry. MAGNET systems; (5) activities which violate or are paperwork and other information collects the information and connects the suspected of violating the laws relating to collection burdens imposed on the information in order to fulfill this need. counterfeiting of obligations and securities of public and, under the provisions of PRA Coast Guard Intelligence (through the United States and other financial crimes, section 3507(d), obtain approval from MAGNET) will provide awareness to the including access device fraud, financial the Office of Management and Budget field as well as to strategic planners by institution fraud, identity theft, computer (OMB) for each collection of aggregating data from existing sources fraud; and computer-based attacks on our information it conducts, sponsors, or internal and external to the Coast Guard or nation’s financial, banking, and DHS. MAGNET will correlate and provide telecommunications infrastructure; (6) requires through regulations. DHS has the medium to display information such as activities, not wholly conducted within the determined that there are no current or ship registry, current ship position, crew United States, which violate or are suspected new information collection background, passenger lists, port history, of violating the laws which prohibit the requirements associated with this rule. cargo, known criminal vessels, and suspect production, transfer, or sale of narcotics or lists. Coast Guard Intelligence (CG–2) will substances controlled in accordance with C. Executive Order 13132, Federalism serve as MAGNET’s executive agent and will Title 21 of the United States Code, or those share appropriate aggregated data to other associated activities otherwise prohibited by This action will not have a substantial law enforcement and intelligence agencies. Titles 21 and 46 of the United States Code; direct effect on the States, on the (a) Pursuant to 5 U.S.C. 522a(j)(2), (k)(1), (7) activities which impact, concern, or relationship between the national and (k)(2) this system of records is exempt otherwise threaten the safety and security of Government and the States, or on the from 5 U.S.C. 552a(c)(3) and (4), (d)(1), (d)(2), the President and Vice President, their distribution of power and (d)(3), (d)(4), (e)(1), (e)(2), (e)(3), (e)(4) (G), families, heads of state, and other designated responsibilities among the various (H), and (I), e(5), e(8), e(12), (f), and (g). These individuals; the White House, Vice levels of government, and therefore will exemptions apply only to the extent that President’s residence, foreign missions, and information in this system is subject to other designated buildings within the United not have federalism implications. exemption. Where compliance would not States; (8) activities which impact, concern, D. Environmental Analysis appear to interfere with or adversely affect or otherwise threaten domestic maritime the intelligence, counterterrorism, homeland safety and security, maritime mobility and DHS has reviewed this action for security, and related law enforcement navigation, or the integrity of the domestic purposes of the National Environmental purposes of this system, the applicable maritime environment; (9) activities which exemption may be waived by DHS. impact, concern, or otherwise threaten the Policy Act of 1969 (NEPA) (42 U.S.C. (b) Exemptions from the particular national operational capability of the 4321–4347) and has determined that subsections are justified for the following Department to respond to natural and this action will not have a significant reasons: manmade major disasters and emergencies, effect on the human environment. (1) From subsection (c)(3) (Accounting of including acts of terrorism; (10) activities Certain Disclosures) because making involving the importation, possession, E. Energy Impact available to a record subject the accounting storage, development, or transportation of of disclosures from records concerning him/ nuclear or radiological material without The energy impact of this action has her would specifically reveal any interest in authorization or for use against the United been assessed in accordance with the the individual of an intelligence, States; Energy Policy and Conservation Act counterterrorism, homeland security, law (iv) Foreign governments, organizations, or (EPCA) Public Law 94–163, as amended enforcement or related investigative nature. persons (foreign powers); and (42 U.S.C. 6362). This rulemaking is not Revealing this information could reasonably (v) Individuals engaging in intelligence a major regulatory action under the be expected to compromise ongoing efforts of activities on behalf of a foreign power or provisions of the EPCA. the Department to identify, understand, terrorist group. analyze, investigate, and counter the Thus, by notifying the record subject that List of Subjects in 6 CFR Part 5 activities of: he/she is the focus of such efforts or interest (i) Known or suspected terrorists and on the part of DHS, or other agencies with Freedom of information; Privacy. terrorist groups; whom DHS is cooperating and to whom the (ii) Groups or individuals known or disclosures were made, this information ■ For the reasons stated in the preamble, believed to be assisting or associated with could permit the record subject to take DHS amends Chapter I of Title 6, Code known or suspected terrorists or terrorist measures to impede or evade such efforts, of Federal Regulations, as follows: groups; including the taking of steps to deceive DHS

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personnel and deny them the ability to for DHS to know in advance of its receipt the are familiar with such individual and his/her adequately assess relevant information and relevance and necessity of each piece of activities. In such investigations it is not activities, and could inappropriately disclose information it acquires in the course of an feasible to rely solely upon information to the record subject the sensitive methods intelligence, counterterrorism, or furnished by the individual concerning his and/or confidential sources used to acquire investigatory effort undertaken on behalf of own activities. the relevant information against him/her. the Department, or by another agency with (6) From subsection (e)(3) (Notice to Moreover, where the record subject is the whom DHS is cooperating. In the context of Subjects), to the extent that this subsection is actual target of a law enforcement the authorized intelligence, counterterrorism, interpreted to require DHS to provide notice investigation, this information could permit and investigatory activities undertaken by to an individual if DHS or another agency him/her to take measures to impede the DHS personnel, relevance and necessity are receives or collects information about that investigation, for example, by destroying questions of analytic judgment and timing, individual during an investigation or from a evidence, intimidating potential witnesses, or such that what may appear relevant and third party. Should the subsection be so avoiding detection or apprehension. necessary when acquired ultimately may be interpreted, exemption from this provision is (2) From subsection (c)(4) (Accounting for deemed unnecessary upon further analysis necessary to avoid impeding Disclosure, notice of dispute) because certain and evaluation. Similarly, in some situations, counterterrorism or law enforcement efforts records in this system are exempt from the it is only after acquired information is by putting the subject of an investigation, access and amendment provisions of collated, analyzed, and evaluated in light of study or analysis on notice of that fact, subsection (d), this requirement to inform other available evidence and information that thereby permitting the subject to engage in any person or other agency about any its relevance and necessity can be established conduct intended to frustrate or impede that correction or notation of dispute that the or made clear. Constraining the initial activity. agency made with regard to those records, acquisition of information included within (7) From subsections (e)(4) (G), (H) and (I) should not apply. the MAGNET in accordance with the relevant (Access), and (f) (Agency Rules), inasmuch as (3) From subsections (d)(1), (2), (3), and (4) and necessary requirement of subsection it is unnecessary for the publication of rules (Access to Records) because these provisions (e)(1) could discourage the appropriate and procedures contemplated therein since concern individual rights of access to and receipt of and access to information which the MAGNET, pursuant to subsections (3), amendment of records (including the review DHS and MAGNET are otherwise authorized above, will be exempt from the underlying of agency denials of either) contained in this to receive and possess under law, and duties to provide to individuals notification system, which consists of intelligence, thereby impede efforts to detect, deter, about, access to, and the ability to amend or counterterrorism, homeland security, and prevent, disrupt, or apprehend terrorists or correct the information pertaining to them in, related investigatory records concerning terrorist groups, and/or respond to terrorist or this system of records. Furthermore, to the efforts of the Department, as described more other activities which threaten homeland extent that subsection (e)(4)(I) is construed to fully in subsection (b)(1), above. Compliance security. Notwithstanding this claimed require more detailed disclosure than the with these provisions could inform or alert exemption, which would permit the information accompanying the system notice the subject of an intelligence, acquisition and temporary maintenance of for MAGNET, as published in today’s counterterrorism, homeland security, or records whose relevance to the purpose of Federal Register, exemption from it is also investigatory effort undertaken on behalf of the MAGNET may be less than fully clear, necessary to protect the confidentiality, the Department, or by another agency with DHS will only disclose such records after privacy, and physical safety of sources of whom DHS is cooperating, of the fact and determining whether such disclosures are information, as well as the methods for nature of such efforts, and/or the relevant themselves consistent with the published acquiring it. Finally, greater specificity intelligence, counterterrorism, homeland MAGNET routine uses. Moreover, it should concerning the description of categories of security, or investigatory interest of DHS be noted that, as concerns the receipt by sources of properly classified records could and/or other intelligence, counterterrorism, USCG, for intelligence purposes, of also compromise or otherwise cause damage or law enforcement agencies. Moreover, information in any record which identifies a to the national or homeland security. compliance could also compromise sensitive U.S. Person, as defined in Executive Order (8) From subsection (e)(5) (Collection of information either classified in the interest of 12333, as amended, such receipt, and any Information) because many of the records in national security, or which otherwise subsequent use or dissemination of that this system coming from other system of requires, as appropriate, safeguarding and identifying information, is undertaken records are derived from other domestic and protection from unauthorized disclosure; consistent with the procedures established foreign agency record systems and therefore identify a confidential source or disclose and adhered to by USCG pursuant to that it is not possible for DHS to vouch for their information which would constitute an Executive Order. Specifically, USCG compliance with this provision; however, the unwarranted invasion of another individual’s intelligence personnel may acquire DHS has implemented internal quality personal privacy; reveal a sensitive information which identifies a particular U.S. assurance procedures to ensure that data intelligence or investigative technique or Person, retain it within or disseminate it from used in its screening processes is as method, including interfering with MAGNET, as appropriate, only when it is complete, accurate, and current as possible. intelligence or law enforcement investigative determined that the personally identifying In addition, in the collection of information processes by permitting the destruction of information is necessary for the conduct of for law enforcement and counterterrorism evidence, improper influencing or USCG’s functions, and otherwise falls into purposes, it is impossible to determine in intimidation of witnesses, fabrication of one of a limited number of authorized advance what information is accurate, statements or testimony, and flight from categories, each of which reflects discrete relevant, timely, and complete. With the detection or apprehension; or constitute a activities for which information on passage of time, seemingly irrelevant or potential danger to the health or safety of individuals would be utilized by the untimely information may acquire new intelligence, counterterrorism, homeland Department in the overall execution of its significance as further investigation brings security, and law enforcement personnel, statutory mission. new details to light. The restrictions imposed confidential sources and informants, and (5) From subsection (e)(2) (Collection of by (e)(5) would limit the ability of those potential witnesses. Amendment of the Information from Individuals) because agencies’ trained investigators and records would interfere with ongoing application of this provision could present a intelligence analysts to exercise their intelligence, counterterrorism, homeland serious impediment to counterterrorism or judgment in conducting investigations and security, and law enforcement investigations law enforcement efforts in that it would put impede the development of intelligence and activities, including incident reporting the subject of an investigation, study or necessary for effective law enforcement and and analysis activities, and impose an analysis on notice of that fact, thereby counterterrorism efforts. impossible administrative burden by permitting the subject to engage in conduct (9) From subsection (e)(8) (Notice on requiring investigations, reports, and designed to frustrate or impede that activity. Individuals) because to require individual analyses to be continuously reinvestigated The nature of counterterrorism and law notice of disclosure of information due to and revised. enforcement investigations is such that vital compulsory legal process would pose an (4) From subsection (e)(1) (Relevant and information about an individual frequently impossible administrative burden on DHS Necessary) because it is not always possible can be obtained only from other persons who and other agencies and could alert the

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subjects of counterterrorism or law Washington, DC 20528; telephone 703– and USCG will implement the enforcement investigations to the fact of 235–0780. rulemaking as proposed. those investigations then not previously SUPPLEMENTARY INFORMATION: known. Regulatory Requirements (10) From subsection (e)(12) (Matching Background Agreements) because requiring DHS to A. Regulatory Impact Analyses provide notice of alterations to existing The Department of Homeland Changes to Federal regulations must matching agreements would impair DHS Security (DHS) published a notice of undergo several analyses. In conducting operations by indicating which data elements proposed rulemaking in the Federal these analyses, DHS has determined: and information are valuable to DHS’s Register, 73 FR 28060, 15 May 2008, analytical functions, thereby providing proposing to exempt portions of the 1. Executive Order 12866 Assessment harmful disclosure of information to system of records from one or more This rule is not a significant individuals who would seek to circumvent or provisions of the Privacy Act because of regulatory action under Executive Order interfere with DHS’s missions. criminal, civil, and administrative (11) From subsection (g) (Civil Remedies) 12866, ‘‘Regulatory Planning and to the extent that the system is exempt from enforcement requirements. The system Review’’ (as amended). Accordingly, other specific subsections of the Privacy Act. of records is the United States Coast this rule has not been reviewed by the Guard (USCG) Law Enforcement Office of Management and Budget Hugo Teufel III, Intelligence Data Base (LEIDB/ (OMB). Nevertheless, DHS has reviewed Chief Privacy Officer, Department of Pathfinder). The LEIDB system of this rulemaking and concluded that Homeland Security. records notice (SORN) was published there will not be any significant [FR Doc. E8–22606 Filed 9–29–08; 8:45 am] concurrently in the Federal Register, 73 economic impact. BILLING CODE 4410–10–P FR 28135, May 15, 2008, and comments were invited on both the proposed rule 2. Regulatory Flexibility Act Assessment and SORN. No comments were received. Pursuant to section 605 of the DEPARTMENT OF HOMELAND Accordingly, the Department is Regulatory Flexibility Act (RFA), 5 SECURITY adopting the proposed rule as final. U.S.C. 605(b), as amended by the Small Concurrently in this issue of the Federal Business Regulatory Enforcement and Office of the Secretary Register, DHS is re-publishing the Fairness Act of 1996 (SBREFA), DHS SORN for USCG LEIDB/Pathfinder. certifies that this rule will not have a 6 CFR Part 5 This Final Rule is also updating the significant impact on a substantial [Docket No. DHS–2008–0082] justification for exempting LEIDB/ number of small entities. The rule Pathfinder from section (e)(5) of the would impose no duties or obligations Privacy Act of 1974: Implementation of Privacy Act. The prior justification on small entities. Further, the Exemptions; U.S. Coast Guard Law referenced the receipt of information exemptions to the Privacy Act apply to Enforcement Information Database from ‘‘foreign agency record systems.’’ individuals, and individuals are not (LEIDB)/Pathfinder LEIDB/Pathfinder does not receive covered entities under the RFA. information directly from any foreign AGENCY: Privacy Office, DHS. source. Any information received from 3. International Trade Impact ACTION: Final rule. a foreign source would be evaluated and Assessment SUMMARY: On May 15, 2008, the input into a USCG message as written This rulemaking will not constitute a Department of Homeland Security by a USCG officer or crewman. The barrier to international trade. The originally published the SORN and USCG drafted message may ultimately exemptions relate to criminal associated proposed rulemaking for the arrive in LEIDB. The justification has investigations and agency United States Coast Guard Law been narrowed to more accurately documentation and, therefore, do not Enforcement Information Data Base reflect this fact (see justifications below create any new costs or barriers to trade. (LEIDB/Pathfinder) (DHS/USCG–062) in at Part 5, sub 6(b)(8)). Lastly, a Privacy Impact Assessment 4. Unfunded Mandates Assessment the Federal Register. The Department of for LEIDB/Pathfinder is posted on the Title II of the Unfunded Mandates Homeland Security is issuing a final Department’s privacy Web site. (See Reform Act of 1995 (UMRA), (Pub. L. rule to amend its regulations to exempt http://www.dhs.gov/privacy and follow 104–4, 109 Stat. 48), requires Federal portions of an existing system of records the link to ‘‘Privacy Impact agencies to assess the effects of certain entitled the USCG LEIDB/Pathfinder Assessments’’). regulatory actions on State, local, and from certain provisions of the Privacy Pursuant to the requirements of the tribal governments, and the private Act. Specifically, the Department Regulatory Flexibility Act, 5 U.S.C. 601– sector. This rulemaking will not impose exempts portions of the LEIDB/ 612, DHS certifies that these regulations an unfunded mandate on State, local, or Pathfinder system from one or more will not significantly affect a substantial tribal governments, or on the private provisions of the Privacy Act because of number of small entities. The final rule sector. criminal, civil, and administrative imposes no duties or obligations on B. Paperwork Reduction Act enforcement requirements. small entities. Further, in accordance DATES: Effective Date: This final rule is with the provisions of the Paperwork The Paperwork Reduction Act of 1995 effective September 30, 2008. Reduction Act of 1995, 44 U.S.C. 3501, (PRA) (44 U.S.C. 3501 et seq.) requires FOR FURTHER INFORMATION CONTACT: DHS has determined that this final rule that DHS consider the impact of Department of Homeland Security would not impose new record keeping, paperwork and other information United States Coast Guard, Mike Payne application, reporting, or other types of collection burdens imposed on the (LEIDB/Pathfinder System Program information collection requirements. public and, under the provisions of PRA Officer), Intelligence Division (CG–26), section 3507(d), obtain approval from 2100 2nd Street, SW., Washington, DC Public Comments the Office of Management and Budget 20593–0001; Hugo Teufel III, Chief USCG received no comments on the (OMB) for each collection of Privacy Officer, Privacy Office, system of records notice or notice of information it conducts, sponsors, or Department of Homeland Security, proposed rulemaking. Accordingly, DHS requires through regulations. DHS has

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determined that there are no current or the above mentioned system of records are the President and Vice President, their new information collection exempt from 5 U.S.C. 552a(c)(3) and (4); families, heads of state, and other designated requirements associated with this rule. (d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G) individuals; the White House, Vice through (I), (e)(5), and (8); (f), and (g). These President’s residence, foreign missions, and C. Executive Order 13132, Federalism exemptions apply only to the extent that other designated buildings within the United This action will not have a substantial information in this system is subject to States; (8) activities which impact, concern, exemption. Where compliance would not or otherwise threaten domestic maritime direct effect on the States, on the appear to interfere with or adversely affect safety and security, maritime mobility and relationship between the national the intelligence, counterterrorism, homeland navigation, or the integrity of the domestic Government and the States, or on the security, and related law enforcement maritime environment; (9) activities which distribution of power and purposes of this system, the applicable impact, concern, or otherwise threaten the responsibilities among the various exemption may be waived by DHS. national operational capability of the levels of government, and therefore will (b) Exemptions from the particular Department to respond to natural and not have federalism implications. subsections are justified for the following manmade major disasters and emergencies, reasons: including acts of terrorism; (10) activities D. Environmental Analysis (1) From subsection (c)(3) (Accounting for involving the importation, possession, Disclosures) because making available to a storage, development, or transportation of DHS has reviewed this action for record subject the accounting of disclosures nuclear or radiological material without purposes of the National Environmental from records concerning him/her would authorization or for use against the United Policy Act of 1969 (NEPA) (42 U.S.C. specifically reveal any interest in the States; 4321–4347) and has determined that individual of an intelligence, (iv) Foreign governments, organizations, or this action will not have a significant counterterrorism, homeland security, or persons (foreign powers); and effect on the human environment. related investigative nature. Revealing this (v) Individuals engaging in intelligence information could reasonably be expected to activities on behalf of a foreign power or E. Energy Impact compromise ongoing efforts of the terrorist group. The energy impact of this action has Department to identify, understand, analyze, Thus, by notifying the record subject that been assessed in accordance with the investigate, and counter the activities of: he/she is the focus of such efforts or interest Energy Policy and Conservation Act (i) Known or suspected terrorists and on the part of DHS, or other agencies with terrorist groups; whom DHS is cooperating and to whom the (EPCA) Public Law 94–163, as amended (ii) Groups or individuals known or disclosures were made, this information (42 U.S.C. 6362). This rulemaking is not believed to be assisting or associated with could permit the record subject to take a major regulatory action under the known or suspected terrorists or terrorist measures to impede or evade such efforts, provisions of the EPCA. groups; including the taking of steps to deceive DHS (iii) Individuals known, believed to be, or personnel and deny them the ability to List of Subjects in 6 CFR Part 5 suspected of being engaged in activities adequately assess relevant information and Freedom of information; Privacy. constituting a threat to homeland security, activities, and could inappropriately disclose ■ For the reasons stated in the preamble, including (1) activities which impact or to the record subject the sensitive methods DHS amends Chapter I of Title 6, Code concern the security, safety, and integrity of and/or confidential sources used to acquire of Federal Regulations, as follows: our international borders, including any the relevant information against him/her. illegal activities that either cross our borders Moreover, where the record subject is the PART 5—DISCLOSURE OF RECORDS or are otherwise in violation of the actual target of a law enforcement immigration or customs laws and regulations investigation, this information could permit AND INFORMATION of the United States; (2) activities which him/her to take measures to impede the ■ 1. The authority citation for Part 5 could reasonably be expected to assist in the investigation, for example, by destroying continues to read as follows: development or use of a weapon of mass evidence, intimidating potential witnesses, or effect; (3) activities meant to identify, create, avoiding detection or apprehension. Authority: Pub. L. 107–296, 116 Stat. 2135, or exploit the vulnerabilities of, or (2) From subsection (c)(4) (Accounting for 6 U.S.C. 101 et seq.; 5 U.S.C. 301. Subpart A undermine, the ‘‘key resources’’ (as defined Disclosure, notice of dispute) because certain also issued under 5 U.S.C. 552. in section 2(9) of the Homeland Security Act records in this system are exempt from the ■ 2. At the end of Appendix C to Part of 2002) and ‘‘critical infrastructure’’ (as access and amendment provisions of defined in 42 U.S.C. 5195c(c)) of the United subsection (d), this requirement to inform 5, add the following new paragraph 9 to States, including the cyber and national any person or other agency about any read as follows: telecommunications infrastructure and the correction or notation of dispute that the Appendix C to Part 5—DHS Systems of availability of a viable national security and agency made with regard to those records, Records Exempt From the Privacy Act emergency preparedness communications should not apply. infrastructure; (4) activities detrimental to the (3) From subsections (d)(1), (2), (3), and (4) * * * * * security of transportation and transportation (Access to Records) because these provisions 9. The Law Enforcement Information Data systems; (5) activities which violate or are concern individual rights of access to and Base (LEIDB)/Pathfinder is a historical suspected of violating the laws relating to amendment of records (including the review repository of selected Coast Guard message counterfeiting of obligations and securities of of agency denials of either) contained in this traffic. LEIDB/Pathfinder supports law the United States and other financial crimes, system, which consists of intelligence, enforcement intelligence activities. LEIDB/ including access device fraud, financial counterterrorism, homeland security, and Pathfinder users can query archived message institution fraud, identity theft, computer related investigatory records concerning traffic and link relevant information across fraud; and computer-based attacks on our efforts of the Department, as described more multiple data records within LEIDB/ nation’s financial, banking, and fully in subsection (b)(1), above. Compliance Pathfinder. Users have system tools enabling telecommunications infrastructure; (6) with these provisions could inform or alert the user to identify potential relationships activities, not wholly conducted within the the subject of an intelligence, between information contained in otherwise United States, which violate or are suspected counterterrorism, homeland security, or unrelated documents. These tools allow the of violating the laws which prohibit the investigatory effort undertaken on behalf of analysts to build high precision and low production, transfer, or sale of narcotics or the Department, or by another agency with return queries, which minimize false hits and substances controlled in accordance with whom DHS is cooperating, of the fact and maximize analyst productivity while working Title 21 of the United States Code, or those nature of such efforts, and/or the relevant with unstructured, unformatted, free test associated activities otherwise prohibited by intelligence, counterterrorism, homeland documents. Titles 21 and 46 of the United States Code; security, or investigatory interest of DHS (a) Pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (7) activities which impact, concern, or and/or other intelligence, counterterrorism, and (k)(2) certain records or information in otherwise threaten the safety and security of or law enforcement agencies. Moreover,

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compliance could also compromise sensitive uses. Moreover, it should be noted that, as physical safety of sources of information, as information either classified in the interest of concerns the receipt by USCG, for well as the methods for acquiring it. Finally, national security, or which otherwise intelligence purposes, of information in any greater specificity concerning the description requires, as appropriate, safeguarding and record which identifies a U.S. Person, as of categories of sources of properly classified protection from unauthorized disclosure; defined in Executive Order 12333, as records could also compromise or otherwise identify a confidential source or disclose amended, such receipt, and any subsequent cause damage to the national or homeland information which would constitute an use or dissemination of that identifying security. unwarranted invasion of another individual’s information, is undertaken consistent with (8) From subsection (e)(5) (Collection of personal privacy; reveal a sensitive the procedures established and adhered to by Information) because many of the records intelligence or investigative technique or USCG pursuant to that Executive Order. contained in this system are derived from method, including interfering with Specifically, USCG intelligence personnel other domestic and foreign sources, it is not intelligence or law enforcement investigative may acquire information which identifies a possible for DHS to vouch for those records’ processes by permitting the destruction of particular U.S. Person, retain it within or compliance with this provision; however, the evidence, improper influencing or disseminate it from LEIDB, as appropriate, DHS has implemented internal quality intimidation of witnesses, fabrication of only when it is determined that the assurance procedures to ensure that data statements or testimony, and flight from personally identifying information is used in its screening processes is as detection or apprehension; or constitute a necessary for the conduct of USCG’s complete, accurate, and current as possible. potential danger to the health or safety of functions, and otherwise falls into one of a In addition, in the collection of information intelligence, counterterrorism, homeland limited number of authorized categories, for law enforcement and counterterrorism security, and law enforcement personnel, each of which reflects discrete activities for purposes, it is impossible to determine in which information on individuals would be confidential sources and informants, and advance what information is accurate, potential witnesses. Amendment of the utilized by the Department in the overall relevant, timely, and complete. With the records would interfere with ongoing execution of its statutory mission. passage of time, seemingly irrelevant or intelligence, counterterrorism, homeland (5) From subsection (e)(2) (Collection of untimely information may acquire new security, and law enforcement investigations Information from Individuals) because significance as further investigation brings and activities, including incident reporting application of this provision could present a new details to light. The restrictions imposed and analysis activities, and impose an serious impediment to counterterrorism or by (e)(5) would limit the ability of those impossible administrative burden by law enforcement efforts in that it would put agencies’ trained investigators and requiring investigations, reports, and the subject of an investigation, study or intelligence analysts to exercise their analyses to be continuously reinvestigated analysis on notice of that fact, thereby judgment in conducting investigations and and revised. permitting the subject to engage in conduct (4) From subsection (e)(1) (Relevant and designed to frustrate or impede that activity. impede the development of intelligence Necessary) because it is not always possible The nature of counterterrorism, and law necessary for effective law enforcement and for DHS to know in advance of its receipt the enforcement investigations is such that vital counterterrorism efforts. relevance and necessity of each piece of information about an individual frequently (9) From subsection (e)(8) (Notice on information it acquires in the course of an can be obtained only from other persons who Individuals) because to require individual intelligence, counterterrorism, or are familiar with such individual and his/her notice of disclosure of information due to investigatory effort undertaken on behalf of activities. In such investigations it is not compulsory legal process would pose an the Department, or by another agency with feasible to rely solely upon information impossible administrative burden on DHS whom DHS is cooperating. In the context of furnished by the individual concerning his and other agencies and could alert the the authorized intelligence, counterterrorism, own activities. subjects of counterterrorism or law and investigatory activities undertaken by (6) From subsection (e)(3) (Notice to enforcement investigations to the fact of DHS personnel, relevance and necessity are Subjects), to the extent that this subsection is those investigations then not previously questions of analytic judgment and timing, interpreted to require DHS to provide notice known. such that what may appear relevant and to an individual if DHS or another agency (10) From subsection (f) (Agency Rules) necessary when acquired ultimately may be receives or collects information about that because portions of this system are exempt deemed unnecessary upon further analysis individual during an investigation or from a from the access and amendment provisions and evaluation. Similarly, in some situations, third party. Should the subsection be so of subsection (d). Access to, and amendment it is only after acquired information is interpreted, exemption from this provision is of, system records that are not exempt or for collated, analyzed, and evaluated in light of necessary to avoid impeding which exemption is waived may be obtained other available evidence and information that counterterrorism or law enforcement efforts under procedures described in the related its relevance and necessity can be established by putting the subject of an investigation, SORN or Subpart B of this Part. or made clear. Constraining the initial study or analysis on notice of that fact, (11) From subsection (g) to the extent that acquisition of information included within thereby permitting the subject to engage in the system is exempt from other specific the LEIDB in accordance with the relevant conduct intended to frustrate or impede that subsections of the Privacy Act relating to and necessary requirement of subsection activity. individuals’ rights to access and amend their (e)(1) could discourage the appropriate (7) From subsections (e)(4) (G), (H) and (I) records contained in the system. Therefore receipt of and access to information which (Access), inasmuch as it is unnecessary for DHS is not required to establish rules or DHS and USCG are otherwise authorized to the publication of rules and procedures procedures pursuant to which individuals receive and possess under law, and thereby contemplated therein since the LEIDB, may seek a civil remedy for the agency’s: impede efforts to detect, deter, prevent, pursuant to subsections (2) and (3), above, Refusal to amend a record; refusal to comply disrupt, or apprehend terrorists or terrorist will be exempt from the underlying duties to with a request for access to records; failure groups, and/or respond to terrorist or other provide to individuals notification about, to maintain accurate, relevant timely and activities which threaten homeland security. access to, and the ability to amend or correct complete records; or failure to otherwise Notwithstanding this claimed exemption, the information pertaining to them in, this comply with an individual’s right to access which would permit the acquisition and system of records. Furthermore, to the extent or amend records. temporary maintenance of records whose that subsection (e)(4)(I) is construed to Hugo Teufel III, relevance to the purpose of the LEIDB may require more detailed disclosure than the be less than fully clear, DHS will only information accompanying the system notice Chief Privacy Officer, Department of disclose such records after determining for LEIDB, as published in today’s Federal Homeland Security. whether such disclosures are themselves Register, exemption from it is also necessary [FR Doc. E8–22613 Filed 9–29–08; 8:45 am] consistent with the published LEIDB routine to protect the confidentiality, privacy, and BILLING CODE 4410–10–P

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DEPARTMENT OF HOMELAND LEIDB/Pathfinder was developed to LEIDB/Pathfinder is a repository for SECURITY efficiently manage field-created certain CGMS messages; users must intelligence and law enforcement craft their own searches. Office of the Secretary related reports. These intelligence This system will contain information [Docket No. DHS–2008–0081] reports vary in content but are about physical characteristics of ports, submitted in a standard Coast Guard vessels, and other maritime Privacy Act of 1974: System of message format which is electronically infrastructure. The physical Records distributed through the Coast Guard characteristics may include security Message System (CGMS) (and to a lesser vulnerabilities, strengths and natural or AGENCY: Privacy Office, DHS. extent the Defense Messaging System). man made attributes. This system will ACTION: Re-publication of a Notice of CGMS is the system by which the Coast also contain information about Privacy system of records. Guard manages all general message individuals. The individuals will be traffic to and from Coast Guard U.S. Citizens, Lawful Permanent SUMMARY: Pursuant to the Privacy Act of components and commands. After Residents, as well as, foreign nationals 1974, the Department of Homeland processing and delivering a message, with whom the Coast Guard interacts, or Security is re-publishing this system of CGMS archives the message for 30 days can reasonably expect to interact, in the records notice (SORN) entitled the before they are deleted regardless of the maritime environment. These United States Coast Guard (USCG) Law content of the message. individuals will be owners and Enforcement Information Data Base The Assistant Commandant for operators of vessels, maritime facilities (LEIDB)/Pathfinder. Intelligence and Criminal Investigations or otherwise engaged in maritime On May 15, 2008, DHS originally (CG–2) identified a need to archive activities. published the SORN and associated messages for more than thirty (30) days Elsewhere in today’s Federal Register, proposed rulemaking (DHS/USCG–062) and to be able to perform analysis of the DHS has published a final rule in the Federal Register. DHS received data contained within the messages to exempting this system of records from no comments on the system of records support law enforcement (LE) and one or more provisions of the Privacy intelligence activities. LEIDB/Pathfinder notice and proposed rulemaking. Act because of criminal, civil, and was developed and implemented to Accordingly, DHS is republishing this administrative enforcement SORN as final. A final rulemaking is support these requirements. All messages sent to the LEIDB/ requirements pursuant to 5 U.S.C. also published in this issue of the 552a(j)(2), (k)(1), and (k)(2). Federal Register in which the Pathfinder address on the CGMS are Department exempts portions of this organized within LEIDB/Pathfinder Public Comments system of records from one or more based on message type (e.g., Field Intelligence Report), when the USCG received no public comments provisions of the Privacy Act because of on the original system of records notice criminal, civil, and administrative information was sent, and by whom the information may be accessed. This and proposed rulemaking. Accordingly, enforcement requirements. DHS and USCG are implementing the DATES: The established system of allows for easy segregation of information based on user access system of records and exemptions as records was effective as of February 29, proposed. 2008, based upon the prior LEIDB controls. Users rely on LEIDB/Pathfinder as an system of records notice published on II. Privacy Act archival system to find and retrieve January 30, 2008. records relevant to their analyses. Users The Privacy Act embodies fair FOR FURTHER INFORMATION CONTACT: For of LEIDB/Pathfinder include information principles in a statutory system related questions please contact: intelligence analysts, watch officers, framework governing the means by Mike Payne (LEIDB/Pathfinder System field intelligence officers and which the United States Government Program Officer), Intelligence Division intelligence staff officers, and criminal collects, maintains, uses, and (CG–26), Phone 202–372–2795 or by investigators. Use of LEIDB/Pathfinder disseminates individuals’ records. The mail correspondence: U.S. Coast Guard, obviates the need for individual analysts Privacy Act applies to information that 2100 Second Street, SW., Washington, to compile records in a local storage is maintained in a ‘‘system of records.’’ DC 20593–0001. For privacy issues, system, which reduces the risk of loss A ‘‘system of records’’ is a group of any please contact: Hugo Teufel III, Chief or of unauthorized access to intelligence records under the control of an agency Privacy Officer, Privacy Office, reports. Analysts rely on LEIDB/ from which information is retrieved by Department of Homeland Security, Pathfinder as the means to retrieve the name of the individual or by some Washington, DC 20528. records. Searching through unstructured identifying number, symbol, or other SUPPLEMENTARY INFORMATION: text allows the users to develop search identifying particular assigned to the terms that retrieve all messages relevant individual. I. Background Information to an inquiry without reviewing The Privacy Act requires each agency Law Enforcement Information Data irrelevant records. Messages contained to publish in the Federal Register a Base (LEIDB/Pathfinder) is operated and in LEIDB/Pathfinder are not machine description denoting the type and controlled by the United States Coast processed in any fashion to enable data character of each system of records that Guard, United States Department of manipulation. the agency maintains, and the routine Homeland Security. The Assistant LEIDB/Pathfinder includes tools for uses that are contained in each system Commandant for Intelligence and analysts to conduct data correlation, in order to make agency recordkeeping Criminal Investigations through the analysis, and display of data in reports. practices transparent, to notify Office of Intelligence, Surveillance, These tools enable an analyst to sort, individuals of the uses to which Reconnaissance Systems and search, and process locally stored personally identifiable information is Technology, Division of Data Analysis records. LEIDB/Pathfinder does not do put, and to assist the individual to more and Manipulation (CG–262), is predictive analysis. Any search results easily find such files within the agency. responsible for managing the system for returned to the user are based on the In accordance with 5 U.S.C. 552a(r), a the Coast Guard. search criteria entered by the user. report concerning this record system has

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been sent to the Congress and to the A. Messages delivered to the system nationality, identification numbers such Office of Management and Budget. automatically from the Coast Guard as A-File Number, Social Security Messaging System (CGMS) or the Number, or driver’s license number, SYSTEM OF RECORDS DHS/USCG–062 Defense Messaging System (DMS). employer, boat registration numbers, SYSTEM NAME: Additional data records may be and physical characteristics. No Law Enforcement Information delivered to LEIDB/Pathfinder by Coast biometric data is collected or Database (LEIDB)/Pathfinder Guard Intelligence personnel through an maintained. electronic mail interface. SECURITY CLASSIFICATION: B. Field Intelligence Reports (FIR) AUTHORITY FOR MAINTENANCE OF THE SYSTEM: Sensitive but unclassified to generated by any Coast Guard unit that Federal Records Act of 1950, Title 44 Classified, Secret. observes or otherwise obtains U.S.C. 3101; Title 36, Code of Federal information they believe may be Regulations, chapter XII; The Maritime SYSTEM LOCATION: relevant to security threats, Transportation Security Act of 2002, The computer database is located at vulnerabilities or criminal activity. Pub L. 107–295 The Homeland Security U.S. Coast Guard Intelligence C. Request For Information (RFI) Act of 2002, Pub L. 107–296; 5 U.S.C. Coordination Center, Department of generated by any Coast Guard unit as a 301; 14 U.S.C. 93, 14 U.S.C. 632; 46 Homeland Security, National Maritime request for assistance from the U.S.C. 2306, 46 U.S.C. 3717; 46 U.S.C. Intelligence Center, Washington, DC, Intelligence program to better 12501; 33 U.S.C. 1221 et seq. 20395. understand a situation. PURPOSE(S): D. Intelligence Information Report CATEGORIES OF INDIVIDUALS COVERED BY THE LEIDB/Pathfinder enables Coast SYSTEM: (IIR) generated by select Coast Guard units and other government agencies Guard Intelligence program personnel to Categories of individuals covered by manage Coast Guard message traffic that this notice consist of: able to issue a standardized Department of Defense message reporting contains law enforcement information A. Individuals, U.S. citizens, lawful collected by Coast Guard Officers and permanent residents, and foreign information relevant to intelligence requirements. employees in the course of their nationals, associated with vessels, statutory duties. It also enables analysis facilities, companies, and organizations, E. Situation Reports (SITREPS) generated by Coast Guard operational of that information to improve the engaged in commercial and recreational effectiveness and efficiency of Coast maritime activity on or adjacent to units engaged in operations providing a status update to a developing or ongoing Guard mission performance. The Coast waters subject to the jurisdiction of the Guard Intelligence Program supports the United States. operation. F. Operational Status Reports full range of Coast Guard missions B. Individuals, U.S. citizens, lawful through data collection and analysis to permanent residents, and foreign (OPSTAT), generated by Coast Guard operational units to report on meet operational Commanders nationals, identified during enforcement information requirements. One reason actions taken by enforcement Officials operational capability of personnel, units, and stations. for collection is to improve the and employees of the Coast Guard while awareness of operational Commanders enforcing United States (U.S.) law, G. Operations Reports (OPREPS) generated by Coast Guard operational such that they will be optimally international law, or treaties. positioned to provide services to the C. Individuals, U.S. citizens, resident units to report the conclusion of an public. Another reason is to assist in the aliens, and foreign nationals, directly operation. detection, prevention, and mitigation of and indirectly associated with H. Any other operational reports in all unlawful acts that occur within the individuals listed in paragraphs A and any format that contain information maritime environment and to support B of this section with intelligence value are also D. Individuals, U.S. citizens, resident included and can be transmitted responses to man made or naturally aliens, and foreign nationals, directly through CGMS or DMS. occurring threats to public safety. and indirectly associated with vessels, I. Data records related to known, Routine uses of records maintained in maritime facilities and other maritime suspected, or alleged criminals as well the system, including categories of users infrastructure which are known, as individuals associated with them (e.g. and the purposes of such uses: In addition to those disclosures suspected, or alleged to be involved in immigrants being smuggled) to include generally permitted under 5 U.S.C. illegal activity (e.g. contraband individuals engaged in terrorist activity 552a(b) of the Privacy Act, all or a trafficking, illegal migrant smuggling, or in the Maritime domain. portion of the records or information terrorist activity). J. Data records on facilities and their E. Individuals, U.S. citizens, resident characteristics including: geographic contained in this system may be aliens, and foreign nationals, identified location, commodities handled, disclosed outside DHS as a routine use during a terrorist screening process as a equipment, certificates, inspection data, pursuant to 5 U.S.C. 552a(b)(3): possible identity match to a known or pollution incidents, casualties, and A. To an appropriate Federal, State, suspected terrorist. violations of all laws and international territorial, tribal, local, international, or F. Individuals, U.S. citizens, resident treaties, if applicable. foreign government intelligence entity, aliens, and foreign nationals, identified K. Data records on individuals counterterrorism agency, or other in or reasonably believed to be related associated with facilities and appropriate authority charged with to reports submitted by Coast Guard information pertaining to directly and investigating threats or potential threats personnel engaged in enforcement indirectly related individuals, to national or international security or boarding’s, safety inspections, aircraft companies, and organizations associated assisting in counterterrorism efforts, over-flights or other means of with those facilities such as owners, where a record, either on its face or in observation, and other Coast Guard operators, managers, and employees. conjunction with other information, operational activity. The above reports may have the identifies a threat or potential threat to following types of biographical national or international security, or CATEGORIES OF RECORDS IN THE SYSTEM: information: names, aliases, dates of DHS reasonably believes the LEIDB/Pathfinder contains: birth, phone numbers, addresses, information may be useful in countering

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a threat or potential treat, which J. To contractors, grantees, experts, O. To a federal, state, tribal, local or includes terrorist and espionage and consultants, performing or working foreign government agency or activities, and disclosure is appropriate on a contract, service, grant, cooperative organization, or international to the proper performance of the official agreement, or other assignment for the organization, lawfully engaged in duties of the person receiving the Federal Government, when necessary to collecting law enforcement intelligence disclosure. accomplish a DHS function related to information, whether civil or criminal, B. To a Federal State, or local agency, this system of records. or charged with investigating, or other appropriate entities or K. To an appropriate federal, state, prosecuting, enforcing or implementing individuals, or through established territorial, tribal, local, international, or civil or criminal laws, related rules, liaison channels to selected foreign foreign law enforcement agency or other regulations or orders, to enable these governments, in order to provide appropriate authority charged with entities to carry out their law intelligence, counterintelligence, or investigating or prosecuting a violation enforcement responsibilities, including other information for the purposes of or enforcing or implementing a law, the collection of law enforcement intelligence, counterintelligence, or rule, regulation, or order, where a intelligence. antiterrorism activities authorized by record, either on its face or in DISCLOSURE TO CONSUMER REPORTING U.S. law, Executive Order, or other conjunction with other information, AGENCIES: applicable national security directive. indicates a violation or potential C. To appropriate Federal, state, local, violation of law, which includes No disclosure. tribal, foreign governmental agencies, criminal, civil, or regulatory violations POLICIES AND PRACTICES FOR STORING, multilateral governmental organizations, and such disclosure is proper and RETRIEVING, ACCESSING, RETAINING, AND and non-governmental or private consistent with the official duties of the DISPOSING OF RECORDS IN THE SYSTEM: organizations for the purpose of person making the disclosure. STORAGE: protecting the vital interests of a data L. To the Department of Justice or subject or other persons, including to Records in this system are stored in other Federal agency conducting electronic form in an automated data assist such agencies or organizations in litigation or in proceedings before any preventing exposure to or transmission processing (ADP) system operated and court, adjudicative or administrative maintained by the U.S. Coast Guard. of a communicable or quarantinable body, when: (a) DHS or any component disease or to combat other significant Backups are performed daily. Copies of thereof, or (b) any employee of DHS in backups are stored at an offsite location. public health threats; appropriate notice his/her official capacity, or (c) any will be provided of any identified health Personal, Sensitive but Unclassified employee of DHS in his/her individual (SBU), Unclassified, and Classified data threat or risk. capacity where DOJ or DHS has agreed D. To U.S. Department of Defense and and records reside commingled with to represent the employee, or (d) the related entities including, but not each other. Classified and non-classified United States or any agency thereof, is limited to, the Military Sealift information are merged on a classified a party to the litigation or has an interest Command and the U.S. Navy, to provide domain. in such litigation, and DHS determines safety and security information on Data is stored electronically. Short that the records are both relevant and vessels or facilities chartered, leased, or term data extracts may be in paper or necessary to the litigation and the use of operated by those agencies. electronic form for the duration of a E. To a Federal, State, or local agency such records is compatible with the specific analytic project or activity. Data responsible for response and recovery purpose for which DHS collected the extracts are stored in appropriately operations caused by a man made or records. classified storage containers or on naturally occurring disaster for use in M. To the National Archives and secured electronic media in accordance such operations. Records Administration or other Federal with existing security requirements. F. To the National Transportation government agencies pursuant to Extracted unclassified information Safety Board and its related State records management inspections will be stored in accordance with DHS counterparts for safety investigation and conducted under the authority of 44 Management Directive governing the transportation safety. U.S.C. 2904 and 2906. marking, storage, and handling of G. To the International Maritime N. To appropriate agencies, entities, unclassified sensitive information. Organization (IMO), intergovernmental and persons when (1) DHS suspects or Unclassified information derived from organizations, nongovernmental has confirmed that the security or LEIDB/Pathfinder remains U.S. Coast organizations, or foreign governments in confidentiality of information in the Guard information and is For Official order to conduct investigations, system of records has been Use Only. Determinations by any user to operations, and inspections pursuant to compromised; (2) the Department has further disseminate, in any form, its authority. determined that as a result of the LEIDB/Pathfinder derived information H. To Federal, State, or local agencies suspected or confirmed compromise to other entities or agencies, foreign or or foreign government agencies there is a risk of harm to economic or domestic, must include prior pertaining to marine environmental property interests, identity theft or authorization from the appropriate protection activities. fraud, or harm to the security or supervisor authorized to make such I. To an organization or individual in integrity of this system or other systems determinations. either the public or private sector, either or programs (whether maintained by the foreign or domestic, where there is a Department or another agency or entity) RETRIEVABILITY: reason to believe that the recipient is or that rely upon the compromised Information can be retrieved from could become the target of a particular information; and (3) the disclosure LEIDB/Pathfinder via text string search terrorist activity or conspiracy, to the made to such agencies, entities, and submitted in Boolean language query extent the information is relevant to the persons is reasonably necessary to assist format. Data records in LEIDB/ protection of life or property and in connection with the Department’s Pathfinder do not rely on normalization disclosure is appropriate to the proper efforts to respond to the suspected or or correlation to manipulate data, there performance of the official duties of the confirmed compromise and prevent, are no prescribed data fields for LEIDB/ person making the disclosure. minimize, or remedy such harm. Pathfinder data records.

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Records retrieval through string with OMB Circular A–130, Appendix RECORD ACCESS PROCEDURE: searches enables data association by any III. Because this system contains term, including personal identifier. The U.S. Coast Guard will operate classified and sensitive unclassified Unstructured text in a data record can LEIDB/Pathfinder in consonance with information related to intelligence, be matched to any other data record. Federal security regulations, policy, counterterrorism, homeland security, Specifically, information on individuals procedures, standards and guidance for and law enforcement programs, records may be retrieved by matching implementing the Automated in this system have been exempted from individual name, Social Security Information Systems Security Program. notification, access, and amendment to Number, passport number, or the Specific Coast Guard operating rules the extent permitted by subsection (j)(2) individual’s relationship to a vessel include Command certification that an and (k)(1) and (k)(2) of the Privacy Act. (e.g., owner, shipper, consignee, crew individual Officer or employee requires Nonetheless, DHS will examine each member, passenger, etc.). Information access to LEIDB/Pathfinder to perform separate request on a case-by-case basis, may also be an innumerable amount of official duties. Individual Officers and and, after conferring with the non-identifying information such as employees must certify knowledge of appropriate component or agency, may vessel name, vessel type, port location, Coast Guard policies limiting the use of waive applicable exemptions in port status, etc. PII and FOUO information. Individual appropriate circumstances and where it SAFEGUARDS: Officers and employees must certify would not appear to interfere with or adversely affect the law enforcement or Information in this system is agreement to proper use of data records national security purposes of the safeguarded in accordance with contained in LEIDB/Pathfinder and systems from which the information is applicable laws, rules and policies, must agree to meet minimum security recompiled or in which it is contained. including the DHS Information requirements. Write the FOIA/Privacy Act Officer Technology Security Program RETENTION AND DISPOSAL: (CG–611), FOIA/Privacy Act Request at Handbook. All records are protected the address given above in accordance from unauthorized access through All records, but not including audit with the ‘‘Notification Procedure’’. appropriate administrative, physical, records maintained to document user When seeking records about yourself and technical safeguards. These access to information relating to specific from this system of records or any other safeguards include restricting access to individuals, are maintained within the Departmental system of records your authorized personnel who have a need- system for ten (10) years. These records request must conform with the Privacy to-know, using locks, and password are then destroyed. Audit records are Act regulations set forth in 6 CFR Part protection identification features. maintained for five years from the date 5. You must first verify your identity, Physical locations are locked after of last use by any given user then meaning that you must provide your full normal duty hours and the facilities are destroyed. name, current address and date and protected from the outside by security place of birth. You must sign your personnel. SYSTEM MANAGER(S) AND ADDRESS: LEIDB/Pathfinder falls under the request, and your signature must either Department of Homeland Security be notarized or submitted to you under security guidelines of the National United States Coast Guard, Assistant Maritime Intelligence Center (NMIC) 28 U.S.C. 1746, a law that permits Commandant for Intelligence and statements to be made under penalty or and has its own approved System Criminal Investigations (CG–2), Office of Security Plan which provides that: perjury as a substitute for notarization. ISR Systems and Technology, Data While no specific form is required, you All classified LEIDB/Pathfinder Analysis and Manipulation Division equipment, records and storage devices may obtain forms for this purpose form (CG–262), 2100 2nd Street, SW., the Director, Disclosure and FOIA, are located within facilities or stored in Washington, DC 20593–0001. containers approved for the storage of http://www.dhs.gov/foia or 1–866–431– 0486. In addition you should provide all levels of classified information. NOTIFICATION PROCEDURE: All statutory and regulatory the following: • requirements pertinent to classified and Because this system contains An explanation of why you believe unclassified information have been classified and sensitive unclassified the Department would have information identified in the LEIDB/Pathfinder information related to intelligence, on you, • System Security Plan and have been counterterrorism, homeland security, Identify which component(s) of the implemented. and law enforcement programs, records Department you believe may have the Access to records requiring SECRET in this system have been exempted from information about you, level is limited strictly to personnel notification, access, and amendment to • Specify when you believe the with SECRET or higher level clearances the extent permitted by subsection (j)(2) records would have been created, and who have been determined to have and (k)(1) and (k)(2) of the Privacy Act. • Provide any other information that the appropriate ‘‘need to know’’. General inquiries regarding LEIDB/ will help the FOIA staff determine Access to records requiring Pathfinder may be directed to which DHS component agency may CONFIDENTIAL level is limited strictly Department of Homeland Security have responsive records, to personnel with CONFIDENTIAL or United States Coast Guard, Assistant • If your request is seeking records higher level clearances and who have Commandant for Intelligence and pertaining to another living individual, been determined to have the appropriate Criminal Investigations (CG–2), Office of you must include a statement from that ‘‘need to know’’. ISR Systems and Technology, Data individual certifying his/her agreement Access to all records is restricted by Analysis and Manipulation Division for you to access his/her records. login and password protection. The (CG–262), 2100 2nd Street, SW., Without this bulleted information the scope of access to any records via login Washington, DC 20593–0001. Submit a component(s) will not be able to and password is further limited based written request that includes your name, conduct an effective search, and your on the official need of each individual mailing address, and Social Security request may be denied due to lack of authorized access. The U.S. Coast Guard number to the above listed system specificity or lack of compliance with will take precautions in accordance manager. applicable regulations.

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Further information may also be RECORD SOURCE CATEGORIES: (e)(5), (e)(8), (f), and (g). Pursuant to 5 found at www.dhs.gov/foia. Information contained in LEIDB/ U.S.C. 552a(k)(1) and (k)(2) of the Pathfinder is gathered from a variety of Privacy Act the records and information CONTESTING RECORD PROCEDURES: sources both internal and external to the in the system are exempt from 5 U.S.C. Coast Guard. Source information may 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), Because this system contains come from at sea boardings, (e)(4)(I), and (f). A Final Rule for classified and sensitive unclassified investigations, vessel notice of arrival exempting this record system has been information related to intelligence, reports, U.S. Coast Guard personnel promulgated in accordance with the counterterrorism, homeland security, (both direct observations and interviews requirements of 5 U.S.C. 553(b)(1), (2), and law enforcement programs, records of non-Coast Guard personnel), law and (3), (c), and (e) and is being in this system have been exempted from enforcement notices, commercial published [in 6 CFR Part 5] concurrently notification, access, and amendment to sources, as well as other federal, state, with publication of this re-publication the extent permitted by subsection (j)(2) local and international agencies who are of the system of records notice, and the and (k)(1) and (k)(2) of the Privacy Act. related to the maritime sector and/or proposed rulemaking receiving no A request to amend non-exempt records national security sector. public comments. in this system may be made by writing EXEMPTIONS CLAIMED FOR THE SYSTEM: Dated: September 11, 2008. to the System Manager, identified Hugo Teufel III, above, in conformance with 6 CFR Part Pursuant to 5 U.S.C. 552a(j)(2) of the Privacy Act, the records and Chief Privacy Officer, Department of 5, Subpart B, which provides the rules Homeland Security. for requesting access to Privacy Act information in this system are exempt from 5 U.S.C. 552a(c)(3) and (4), (d), [FR Doc. E8–22612 Filed 9–29–08; 8:45 am] records maintained by DHS. (e)(1), (e)(2), (e)(3), (e)(4)(G), (H), and (I), BILLING CODE 4410–10–P

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Reader Aids Federal Register Vol. 73, No. 190 Tuesday, September 30, 2008

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING SEPTEMBER

Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. Presidential Documents 2 CFR 330...... 51944 332...... 51245 Executive orders and proclamations 741–6000 Proposed Rules: The United States Government Manual 741–6000 335...... 51944 1...... 55776 337...... 51944 Other Services 182...... 55776 410...... 51248, 51944 741–6020 Electronic and on-line services (voice) 3 CFR 412...... 51248 Privacy Act Compilation 741–6064 752...... 54075 Public Laws Update Service (numbers, dates, etc.) 741–6043 Executive Orders: TTY for the deaf-and-hard-of-hearing 741–6086 13473...... 56703 6 CFR Proclamations: 5 ...... 56922, 56924, 56927 7463 (See Notice of ELECTRONIC RESEARCH August 28, 2008) ...... 51211 7 CFR World Wide Web 8284...... 51213 2...... 56705 Full text of the daily Federal Register, CFR and other publications 8285...... 51897 6...... 53355 is located at: http://www.gpoaccess.gov/nara/index.html 8286...... 52773 205...... 54057 Federal Register information and research tools, including Public 8287...... 54051 8288...... 54053 210...... 52903 Inspection List, indexes, and links to GPO Access are located at: 220...... 52903 http://www.archives.gov/federallregister 8289...... 54289 8290...... 54485 301...... 51717 E-mail 8291...... 54923 319...... 54665 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 8292...... 54925 457...... 51573 an open e-mail service that provides subscribers with a digital 8293...... 56447 550...... 54291 form of the Federal Register Table of Contents. The digital form Executive Orders: 613...... 51351 of the Federal Register Table of Contents includes HTML and 13285 (Amended by 650...... 54667 PDF links to the full text of each document. 13471) ...... 51209 922...... 54668 To join or leave, go to http://listserv.access.gpo.gov and select 13471...... 51209 946...... 52573 Online mailing list archives, FEDREGTOC-L, Join or leave the list 13472...... 53353 948...... 52171 1000...... 51352 (or change settings); then follow the instructions. Administrative Orders: 1150...... 56449 PENS (Public Law Electronic Notification Service) is an e-mail Memorandums: 1291...... 51585 service that notifies subscribers of recently enacted laws. Memorandum of 1951...... 54305 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html September 18, 3430...... 51717 and select Join or leave the list (or change settings); then follow 2008 ...... 54487 4274...... 54305 the instructions. Memorandum of FEDREGTOC-L and PENS are mailing lists only. We cannot September 25, Proposed Rules: respond to specific inquiries. 2008 ...... 56701 301...... 54082 761...... 56754 Reference questions. Send questions and comments about the Notices: 762...... 56754 Federal Register system to: [email protected] Notice of August 28, 2008 ...... 51211 915...... 54740 The Federal Register staff cannot interpret specific documents or 1728...... 56513 regulations. Notice of September 18, 2008 ...... 54489 1755...... 56513 Ch. XXXIV ...... 54987, 54988 FEDERAL REGISTER PAGES AND DATE, SEPTEMBER Presidential Determinations: 8 CFR 51209–51350...... 2 No. 2008-23 of July 51351–51572...... 3 25, 2008 ...... 54281 103...... 55683 51573–51716...... 4 No. 2008-24 of August 214...... 55683 51717–51898...... 5 15, 2008 ...... 54283 51899–52170...... 8 No. 2008-25 of August 9 CFR 52171–52572...... 9 28, 2008 ...... 54285 71...... 52173, 54059 52573–52774...... 10 No. 2008-26 of 77 ...... 52775, 54059, 54063 52775–52902...... 11 September 10, 78...... 51353, 54059 52903–53104...... 12 2008 ...... 54287 79...... 54059 53105–53354...... 15 No. 2008-27 of 80...... 54059 53355–53684...... 16 September 12, 83...... 52173 53685–54056...... 17 2008 ...... 54055 93...... 52173 54057–54288...... 18 No. 2008-28 of 317...... 52189 54289–54486...... 19 September 15, 318...... 52193 54487–54664...... 22 2008 ...... 54927 381 ...... 51899, 52189, 52193 54665–54926...... 23 430...... 51355 54927–55430...... 24 5 CFR 439...... 52193 55431–55682...... 25 532...... 54057 442...... 52189 55683–56446...... 26 9901...... 56344 Proposed Rules: 56447–56702...... 29 Proposed Rules: 94...... 54083 56703–56934...... 30 302...... 51944 95...... 54083

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10 CFR 56765 520...... 53685 23...... 52210 71 ...... 51252, 51254, 51605, 2...... 54671 610...... 54314 27...... 52210 52638, 52934, 54091, 54092, 13...... 54671 640...... 54314 28...... 52210 54093, 54989, 56528 50...... 52730, 54931 803...... 53686 33...... 52210 93...... 55788 140...... 56451 812...... 54314 35...... 52210 900...... 54456 814...... 54314 36...... 52210 15 CFR 822...... 54314 49...... 53116 Proposed Rules: 736...... 54499 74...... 52210 50...... 54744 860...... 54314 738...... 51217 75...... 53124 73...... 51378 1240...... 51912 740...... 51217 256...... 52917 430...... 54089 Proposed Rules: 744...... 54499 901...... 54679 900...... 54461 1...... 54106 774...... 51718 129...... 53775 934...... 52921 11 CFR 902...... 54932 165...... 53775 Proposed Rules: Ch. II ...... 54256 Proposed Rules: 314...... 56529 56...... 52136, 55800 9409...... 54270 801...... 54095 878...... 52804 57...... 52136, 55800 9411...... 54270 806...... 52800, 52802 1308...... 56533 66...... 52136, 55800 922...... 53161 250...... 53793 9420...... 54270 22 CFR Proposed Rules: 16 CFR 31 CFR 100...... 51960 41...... 56729 104...... 51960 Proposed Rules: 121...... 54314 1...... 51218 317...... 53393, 53394 122...... 52578, 55439 50...... 53359 12 CFR 455...... 55458 126...... 55441 210...... 52578 129...... 55439 501...... 51933 3...... 55704 1500...... 51384, 51386 1304...... 53686 Proposed Rules: 8...... 52576 17 CFR 202...... 53685 50...... 53798, 56767 3...... 54069 24 CFR 208...... 55706 33 CFR 223...... 54307, 55708 30...... 54069 206...... 51596 225...... 55706 232...... 54943 Proposed Rules: 100...... 51221, 54947 229...... 52908 239...... 52752 26...... 52122 105 ...... 52924, 53128, 56730 303...... 55431, 55432 240...... 52752 28...... 52130 117 ...... 51361, 52924, 52925, 308...... 55432 249...... 52752 201...... 53346 54072, 54682 309...... 55432 Proposed Rules: 203...... 53346 138...... 53691 330...... 56706 1...... 54097 1003...... 52166 151...... 56492 38...... 54097 165 ...... 51362, 51365, 51597, 906...... 56712 25 CFR 915...... 55710 40...... 51961 51719, 51941, 52788, 53128, 1206...... 56712 41...... 51961 Proposed Rules: 54315, 54684, 54686, 54689, 1261...... 55710 145...... 51961 293...... 51255 54950, 54952 1231 ...... 53356, 54309, 54673 334...... 52926, 54072 18 CFR 26 CFR 1701...... 56712 Proposed Rules: Proposed Rules: 260...... 55726 1 ...... 51719, 52528, 53934, 100...... 56537 3...... 56756 284...... 55726 54945 117...... 52934 208...... 56756 385...... 55726 301...... 52784 138...... 54997 225...... 56756 410...... 55750 602...... 52528, 53934 165 ...... 53395, 53398, 54757, 325...... 56756 Proposed Rules: Proposed Rules: 56773 567...... 35...... 51744 1 ...... 51747, 52218, 52220, 40...... 55459 53793, 54990, 56534, 56535 34 CFR 13 CFR 284...... 55460 301...... 52805 Proposed Rules: 123...... 54673 Ch. VI...... 51990 19 CFR 28 CFR 14 CFR 10...... 56715 0...... 54946 36 CFR 23...... 54675 12...... 54309 Proposed Rules: 7...... 54317 33...... 55435 122...... 52577 20...... 55794 215...... 53705 39 ...... 51903, 51906, 51908, 163...... 56715 25...... 54544 218...... 53705 51910, 51912, 52201, 52203, 178...... 56715 Proposed Rules: 52205, 52777, 52909, 52911, Proposed Rules: 29 CFR 223...... 51388 52914, 53105, 54065, 54067, 4...... 51962 2200...... 56491 294...... 54125 54491, 54492, 54677, 56452, 7...... 51962 2203...... 56491 56454, 56457, 56460, 56462, 10...... 51962 4022...... 53115 38 CFR 56464, 56468 102...... 51962 4044...... 53115 3...... 54691 47...... 55722 134...... 51962 Proposed Rules: 4...... 54693, 54708 71 ...... 51356, 51357, 52208, 177...... 51962 1910 ...... 54118, 54123, 54340 52209, 53113, 54494, 55438, 1915...... 54123, 54340 39 CFR 55722, 56470, 56471, 56473, 20 CFR 1917...... 54123 111...... 54712, 56501 56474, 56475, 56476 Proposed Rules: 1918...... 54123 3020...... 51714, 55422 73 ...... 52916, 53359, 55723 404...... 51963 1926...... 54123 Proposed Rules: 95...... 51591 408...... 51963 2700...... 51256 3001 ...... 51888, 51983, 53324, 97 ...... 51215, 51358, 52779, 416...... 51963 55464 52782, 54496, 54497 422...... 51963 30 CFR 3030...... 51888 382...... 53114 6...... 52210 3031...... 51888 Proposed Rules: 21 CFR 7...... 52210 3050...... 53324 39 ...... 51252, 51384, 51382, 16...... 51912, 54314 15...... 52210 3060...... 54468 51604, 51961, 52932, 53764, 101...... 56477 18...... 52210 53766, 53768, 53770, 53773, 210...... 51919 19...... 52210 40 CFR 54747, 54749, 54751, 54755, 211...... 51919 20...... 52210 35...... 52584 55456, 55781, 55786, 56763, 314...... 56487 22...... 52210 52 ...... 51222, 51226, 51599,

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53130, 53132, 53134, 53137, 52234, 53809, 53814, 55469, Proposed Rules: 505...... 53404 53366, 53373, 53378, 53716 56779 2...... 51406 1652...... 51260 55...... 53718 15...... 51406 1819...... 54340 60...... 55751 45 CFR 20...... 55473, 56540 1852...... 54340 70...... 53137 5b...... 55772 27...... 51406 9904...... 51261 130...... 52928 2...... 53148 73...... 52937 131...... 53140 302...... 56422 74...... 51406 174...... 52591 49 CFR 303...... 56422 48 CFR 180 ...... 51722, 51727, 51732, 307...... 56422 385...... 53383 51736, 51738, 52594, 52597, 2510...... 53752 Ch. 1...... 53990, 54016 571...... 54526 52603, 52607, 52616, 53721, 2513...... 53752 2...... 53992, 53993 593...... 56741 53725, 53732, 54954, 54963, 2516...... 53752 4...... 53994 594...... 54981 5...... 53995 54969, 54973 2517...... 53752 605...... 53384 6...... 53995, 53996 261...... 54713 2520...... 53752 Proposed Rules: 8...... 53994 282...... 53742 2521...... 53752 172...... 52558 9...... 53994 300...... 51368, 53143 2522...... 53752 192...... 52938, 53076 12 ...... 53995, 53997, 54007 Proposed Rules: 2523...... 53752 193...... 53076 13...... 54008 52 ...... 51257, 51258, 51606, 2524...... 53752 195...... 53076 15...... 54016 52226, 53162, 53163, 53401, 2540...... 53752 225...... 52496 16...... 54008 53403, 53404, 55466 2541...... 53752 571 ...... 52939, 54020, 55801, 18...... 53994, 53995 55...... 51610 2550...... 53752 58804 63...... 53163 19...... 53993 665...... 56781 23...... 54011 70...... 53163 46 CFR 81...... 51259 26...... 53995 50 CFR 131...... 53178 1...... 56505 30...... 54011, 54013 261...... 54760, 54770 10...... 52789, 56505 32...... 53997 20 ...... 51704, 55602, 55630, 271...... 56775 12...... 56505 33...... 53997 55676 300...... 51393, 53179 13...... 56505 36...... 53997 21...... 55450 14...... 56505 37...... 54014 216...... 53157 41 CFR 15...... 52789, 56505 42...... 53997 223...... 55451 302-17...... 51228 28...... 56505 44...... 53994 229...... 51228 31...... 56505 51...... 55450 300...... 52795, 54932 42 CFR 71...... 56505 52 ...... 53992, 53994, 53995, 600...... 54721 412...... 52928 91...... 56505 53997, 54011, 54013, 54014, 635...... 54721 417...... 54073, 54226 107...... 56505 54016 648 ...... 51743, 52214, 52634, 421...... 55753 150...... 56505 202...... 53151 52635, 52929, 53158, 54735 422 ...... 54208, 54226, 55763 176...... 56505 206...... 53151 660...... 53763, 54737 423 ...... 54208, 54226, 55763 390...... 56738 225...... 53151 679 ...... 51242, 51243, 51601, 455...... 55765 401...... 56505 237...... 53156 51602, 52217, 52637, 52797, 402...... 56505 252...... 53151 52798, 52929, 52930, 53159, 43 CFR 422...... 55450 53390, 54737, 54738, 56511 423...... 54977 47 CFR 511...... 54334 Proposed Rules: 3000...... 54717 2...... 51375 516...... 54334 17 ...... 51415, 52235, 52257, Proposed Rules: 10...... 54511 532...... 54334 53492, 54125, 54345 419...... 53180 15...... 51375 538...... 54334 223...... 51615 22...... 55450 546...... 54334 224...... 51415, 51615 44 CFR 27...... 51375, 54324 552...... 54334 226...... 51747, 52084 64 ...... 53747, 53748, 56731 63...... 56741 Proposed Rules: 402...... 52942 65 ...... 52619, 53750, 54321, 73 ...... 52213, 54073, 54324 204...... 55007 600...... 54132 56737 74...... 51375 237...... 55007 622...... 51617 67...... 52621, 55442 97...... 54074 239...... 55007 665...... 51992 Proposed Rules: 101...... 55775 245...... 55007 679 ...... 53816, 55010, 55368 67 ...... 51400, 52230, 52233, 301...... 54325 252...... 55007 680 ...... 52806, 54346, 55368

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REMINDERS HOUSING AND URBAN comments due by 10-6-08; FEDERAL MEDIATION AND The items in this list were DEVELOPMENT published 8-6-08 [FR E8- CONCILIATION SERVICE editorially compiled as an aid DEPARTMENT 18025] Arbitration Services; comments to Federal Register users. Federal Housing Enterprise EDUCATION DEPARTMENT due by 10-6-08; published Inclusion or exclusion from Oversight Office Office of Postsecondary 8-6-08 [FR E8-17674] this list has no legal Assessments; published 9-30- Education; Notice of GENERAL SERVICES significance. 08 Negotiated Rulemaking: ADMINISTRATION STATE DEPARTMENT For Programs Authorized General Services Acquisition Visas: Under Title IV and Title II Regulation: RULES GOING INTO Rewrite of GSAR Part 546, Documentation of of the Higher Education EFFECT SEPTEMBER 30, Quality Assurance; Nonimmigrants Under the Act of 1965, as Amended; comments due by 10-6- 2008 Immigration and comments due by 10-8- 08; published 8-5-08 [FR Nationality Act, as 08; published 9-8-08 [FR E8-17902] AGRICULTURE Amended; published 9-30- E8-20776] General Services Acquisition DEPARTMENT 08 ENVIRONMENTAL Regulation; GSAR Case Agricultural Marketing PROTECTION AGENCY TRANSPORTATION 2006G517; Rewrite of Service Approval and Promulgation of DEPARTMENT GSAR Part 528, Bonds and Implementation Plans: Mandatory Country of Origin Maritime Administration Insurance; comments due Labeling of Beef, Pork, Capital Construction Fund; Georgia; Prevention of by 10-6-08; published 8-5- Lamb, Chicken, Goat Meat, published 9-30-08 Significant Deterioration 08 [FR E8-17938] Perishable Agricultural and Nonattainment New TRANSPORTATION HEALTH AND HUMAN Commodities, Peanuts, Source Review Rules; DEPARTMENT SERVICES DEPARTMENT Pecans, Ginseng, and comments due by 10-6- Children and Families Macadamia Nuts; published National Highway Traffic 08; published 9-4-08 [FR Administration 8-1-08 Safety Administration E8-20388] Temporary Assistance for List of Nonconforming Environmental Statements; National Dairy Promotion and Needy Families (TANF) Vehicles Eligible for Notice of Intent: Research Program; Final Program: Rule on Amendments to the Importation; published 9-30- Coastal Nonpoint Pollution Elimination of Enhanced Dairy Promotion and 08 Control Programs; States Caseload Reduction Research Order; published TREASURY DEPARTMENT and Territories— Credit for Excess 9-29-08 Haitian Hemispheric Florida and South Maintenance-of-Effort AGRICULTURE Opportunity Through Carolina; Open for Expenditures; comments DEPARTMENT Partnership Encouragement comments until further due by 10-7-08; published Revision of Delegation of Acts (of 2006 and 2008); notice; published 2-11- 8-8-08 [FR E8-18208] published 9-30-08 Authority; published 9-30-08 08 [FR 08-00596] HOMELAND SECURITY FEDERAL Outer Continental Shelf Air DEPARTMENT COMMUNICATIONS COMMENTS DUE NEXT Regulations Consistency U.S. Customs and Border COMMISSION WEEK Update for Florida; Protection comments due by 10-6-08; Electronic Payment and Biennial Regulatory Review of published 9-4-08 [FR E8- AGRICULTURE Refund of Quarterly Harbor Regulations Administered by 20385] the Wireline Competition DEPARTMENT Maintenance Fees; Pesticide Tolerances: Bureau; Correction; Agricultural Marketing comments due by 10-6-08; published 9-30-08 Service Difenoconazole; comments published 8-5-08 [FR E8- due by 10-6-08; published Avocados Grown in South 17967] FEDERAL HOUSING 8-6-08 [FR E8-17937] FINANCE BOARD Florida; Revisions to Grade HOMELAND SECURITY and Container Dodine; comments due by DEPARTMENT Assessments; published 9-30- 10-6-08; published 8-6-08 08 Requirements; comments Coast Guard due by 10-8-08; published [FR E8-17934] Drawbridge Operation FEDERAL HOUSING 9-23-08 [FR E8-22147] Tolerance Exemptions: Regulation: FINANCING AGENCY COMMERCE DEPARTMENT Bacillus thuringiensis Vip3Aa Intracoastal Waterway Assessments; published 9-30- Proteins in Corn and (ICW), Barnegat Bay, National Oceanic and 08 Cotton; comments due by Seaside Heights, NJ; Atmospheric Administration HOMELAND SECURITY 10-6-08; published 8-6-08 comments due by 10-6- DEPARTMENT Fisheries in the Western [FR E8-17931] 08; published 8-22-08 [FR Pacific: U.S. Customs and Border FEDERAL E8-19530] Protection Crustacean Fisheries; COMMUNICATIONS Drawbridge Operation Deepwater Shrimp; COMMISSION Regulations: Haitian Hemispheric comments due by 10-6- Opportunity Through Agency Information Collection Harlem River, New York, 08; published 8-22-08 [FR NY; comments due by 10- Partnership Encouragement E8-19579] Activities; Proposals, Acts (of 2006 and 2008); Submissions, and Approvals; 6-08; published 8-7-08 Fisheries in the Western published 9-30-08 comments due by 10-7-08; [FR E8-18175] Pacific; Pelagic Fisheries; published 8-8-08 [FR E8- HOUSING AND URBAN HOMELAND SECURITY Squid Jig Fisheries; DEPARTMENT 18360] DEVELOPMENT comments due by 10-10-08; DEPARTMENT Coast Guard published 8-11-08 [FR E8- Wireless E911 Location Accuracy Requirements; Streamlining Public Housing Safety Zones: 18404] comments due by 10-6-08; Programs; comments due Chicago Harbor, Navy Pier Marine Mammals; comments published 9-25-08 [FR E8- by 10-6-08; published 8-5- East, Chicago, IL; due by 10-8-08; published 22645] 08 [FR E8-17839] published 9-3-08 9-8-08 [FR E8-20773] Wireless E911 Location INTERIOR DEPARTMENT HOMELAND SECURITY COMMERCE DEPARTMENT Accuracy Requirements; Fish and Wildlife Service DEPARTMENT Patent and Trademark Office Correction; comments due Endangered and Threatened Privacy Act; Systems of Changes to Practice for by 10-6-08; published 9-29- Wildlife and Plants; Records; published 9-30-08 Documents Submitted; 08 [FR E8-22932] Reclassification:

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Hawaiian Hawk or Io (Buteo TRANSPORTATION Integrated Avionics Update Service) on 202–741– solitarius); comments due DEPARTMENT Computers; comments 6043. This list is also by 10-6-08; published 8-6- Federal Aviation due by 10-6-08; published available online at http:// 08 [FR E8-16858] Administration 8-21-08 [FR E8-19361] www.archives.gov/federal- LABOR DEPARTMENT Airworthiness Directives: TREASURY DEPARTMENT register/laws.html. Employee Benefits Security Allied Ag Cat Productions, Internal Revenue Service The text of laws is not Administration Inc. G-164 Series Agency Information Collection published in the Federal Investment Advice; Airplanes; comments due Activities; Proposals, Register but may be ordered Participants and by 10-6-08; published 8-7- Submissions, and Approvals; in ‘‘slip law’’ (individual Beneficiaries; comments due 08 [FR E8-18228] comments due by 10-7-08; pamphlet) form from the by 10-6-08; published 8-22- Boeing Model 767-200 and published 8-8-08 [FR E8- Superintendent of Documents, 08 [FR E8-19272] 767-300 Series Airplanes; 18221] U.S. Government Printing LABOR DEPARTMENT comments due by 10-6- Election to Expense Certain Office, Washington, DC 20402 08; published 8-21-08 [FR Refineries; comments due (phone, 202–512–1808). The Mine Safety and Health E8-19363] Administration by 10-7-08; published 7-9- text will also be made Cessna Aircraft Company 08 [FR 08-01423] available on the Internet from Alcohol- and Drug-Free Mines; (type certificate previously Elections Regarding Start-up GPO Access at http:// Policy, Prohibitions, Testing, held by Columbia Aircraft Expenditures, Corporation www.gpoaccess.gov/plaws/ Training, and Assistance; Manufacturing) Models Organizational Expenditures index.html. Some laws may comments due by 10-8-08; LC40-550FG, LC41- and Partnership not yet be available. published 9-8-08 [FR E8- 550FG, and LC42-550FG Organizational Expenses; 20561] Airplanes; comments due comments due by 10-6-08; S. 3406/P.L. 110–325 NATIONAL AERONAUTICS by 10-6-08; published 8-7- published 7-8-08 [FR E8- ADA Amendments Act of 2008 AND SPACE 08 [FR E8-18231] 15457] (Sept. 25, 2008; 122 Stat. ADMINISTRATION Cessna Aircraft Company Reasonable Good Faith 3553) Personal Identity Verification (Type Certificate Interpretation of Required Last List September 26, 2008 of Contractors; comments Previously Held by Minimum Distribution Rules due by 10-6-08; published Columbia Aircraft by Governmental Plans; 8-6-08 [FR E8-17951] Manufacturing) Models comments due by 10-8-08; POSTAL REGULATORY LC40-550FG, et al.; published 7-10-08 [FR E8- Public Laws Electronic COMMISSION Correction; comments due 15740] Notification Service by 10-6-08; published 9-2- Administrative Practice and TREASURY DEPARTMENT 08 [FR E8-20200] (PENS) Procedure, Postal Service; Electronic Payment and Cessna Model 560 comments due by 10-6-08; Refund of Quarterly Harbor Airplanes; comments due published 9-5-08 [FR E8- Maintenance Fees; PENS is a free electronic mail by 10-6-08; published 8- 20581] comments due by 10-6-08; notification service of newly 21-08 [FR E8-19386] SECURITIES AND published 8-5-08 [FR E8- enacted public laws. To Eclipse Aviation Corp. EXCHANGE COMMISSION 17967] subscribe, go to http:// Model EA500 Airplanes; Self-Regulatory Organizations; listserv.gsa.gov/archives/ comments due by 10-6- publaws-l.html Proposed Rule Changes: 08; published 8-7-08 [FR LIST OF PUBLIC LAWS New York Stock Exchange E8-17786] Note: This service is strictly LLC; comments due by Honeywell Flight This is a continuing list of for E-mail notification of new 10-6-08; published 9-15- Management Systems public bills from the current laws. The text of laws is not 08 [FR E8-21333] Equipped with Honeywell session of Congress which available through this service. NYSE Arca, Inc.; comments NZ 2000 Navigation have become Federal laws. It PENS cannot respond to due by 10-7-08; published Computers and Honeywell may be used in conjunction specific inquiries sent to this 9-16-08 [FR E8-21526] IC 800 or IC-800E with ‘‘P L U S’’ (Public Laws address.

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