2–11–08 Monday Vol. 73 No. 28 Feb. 11, 2008

Pages 7657–8002

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Contents Federal Register Vol. 73, No. 28

Monday, February 11, 2008

Agriculture Department Employment Standards Administration See Animal and Plant Health Inspection Service See Wage and Hour Division See Forest Service PROPOSED RULES See Grain Inspection, Packers and Stockyards Family and Medical Leave Act of 1993, 7876–8001 Administration NOTICES Energy Department Agency Information Collection Activities; Proposals, See Energy Efficiency and Renewable Energy Office Submissions, and Approvals, 7695 See Energy Information Administration See Federal Energy Regulatory Commission Alcohol and Tobacco Tax and Trade Bureau NOTICES NOTICES Meetings: Standards of Identity and the Use of Semi-generic Basic Energy Sciences Advisory Committee, 7722 Designations and Retsina on Certain European Wines Energy Efficiency and Renewable Energy Office Imported into the United States, 7804–7805 NOTICES Meetings: Animal and Plant Health Inspection Service State Energy Advisory Board, 7722–7723 PROPOSED RULES South American Cactus Moth; Quarantine and Regulations, Energy Information Administration 7679–7686 NOTICES Agency Information Collection Activities; Proposals, Antitrust Division Submissions, and Approvals, 7723 NOTICES National Cooperative Research Notifications: Environmental Protection Agency International Electronics Manufacturing Initiative, 7762 NOTICES Petroleum Environmental Research Forum, 7762–7763 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 7742–7743 Army Department Environmental Statements; Notice of Intent: NOTICES Coastal Nonpoint Pollution Control Programs; States and Meetings: Territories— Board of Visitors, United States Military Academy Florida and South Carolina, 7714 (USMA), 7720–7721 Meetings: Board of Scientific Counselors, Global Change Research Children and Families Administration Program Mid-Cycle Review, 7743–7744 NOTICES Federal Aviation Administration Agency Information Collection Activities; Proposals, RULES Submissions, and Approvals, 7746 Airworthiness Directives: Boeing Model 737-300, -400, and -500 Series Airplanes, Commerce Department 7666–7667 See International Trade Administration Bombardier Model CL 600 2B19 (Regional Jet Series 100 See National Oceanic and Atmospheric Administration & 440) Airplanes, 7661–7663 NOTICES Fokker Model F.27 Mark 050 Airplanes, 7663–7665 Department of Commerce Pre-Award Notification Saab Model SAAB SF340A and Model SAAB 340B Requirements for Grants and Cooperative Agreements, Airplanes, 7659–7661 7696–7705 Saab Model SAAB SF340A and SAAB 340B Airplanes, 7657–7659 Defense Department Class E Airspace: See Army Department NOTICES Black River Falls, WI, 7668–7670 Meetings: Lexington, OK, 7667–7668 PROPOSED RULES Missile Defense Advisory Committee, 7715–7716 Airworthiness Directives: Privacy Act; Systems of Records, 7716–7720 Boeing Model 767-200, -300, and -400ER Series Airplanes, 7690–7692 Drug Enforcement Administration NOTICES Federal Communications Commission Agency Information Collection Activities; Proposals, RULES Submissions, and Approvals, 7763–7764 Radio Broadcasting Services; Various States, 7671–7674 PROPOSED RULES Education Department Radio Broadcasting Services; Toquerville, UT, 7694 NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals, 7721–7722 Submissions, and Approvals, 7744–7745

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Federal Energy Regulatory Commission Health and Human Services Department NOTICES See Children and Families Administration Agency Information Collection Activities; Proposals, See Food and Drug Administration Submissions, and Approvals, 7723–7726 See Health Resources and Services Administration Application Accepted for Filing and Soliciting Motions to See National Institutes of Health Intevene, Protests, and Comments: NOTICES Arkansas River Hydro 3, LLC, 7728–7729 Meetings: Clementine Dam Hydro, LLC, 7729–7730 Physical Activity Guidelines Advisory Committee, 7745– Goodwin Hydro, LLC, 7727–7728 7746 Imperial Hydro, LLC, 7730–7731 Morgantown Hydro, LLC, 7726–7727 Health Resources and Services Administration NT Hydro, 7731–7732 NOTICES Putnam Green Power, LLC, 7732–7734 Advisory Committee on Interdisciplinary, Community- Application for Non-Project Use of Project Lands and Based Linkages; Notice of Request for Nominations, Waters, etc.: 7748–7749 Progress Energy Carolinas, Inc, 7734–7735 Combined Notice of Filings, 7735–7739 Homeland Security Department Filing: See U.S. Customs and Border Protection Integrys Energy Group, 7739 Housing and Urban Development Department Issuance of Order: Argo Navis Fundamental Power Fund, L.P, 7739 NOTICES Lehigh Capital, LLC, 7739–7740 Mortgage and Loan Insurance Programs Under the National Nexen Marketing U.S.A. Inc, 7740 Housing Act: Limited Scoping and Request for Comments on Debenture Interest Rates, 7754–7756 Environmental Issues: Notice of Funding Availability for the Fiscal Year 2007 Port Dolphin Energy LLC, 7740–7742 Public Housing Neighborhood Networks Program; Technical Correction, 7756–7757 Federal Railroad Administration NOTICES Indian Affairs Bureau Petition for Approval; Railroad Safety Program Plan, 7788 NOTICES Petition for Waiver of Compliance, 7788–7789 Land Acquisitions; Elk Valley Rancheria, California, 7758– 7759 Federal Register Office NOTICES Interior Department Cumulative List of Public Laws: See Indian Affairs Bureau 110th Congress, First Session, 7810–7813 See Land Management Bureau See Minerals Management Service Federal Transit Administration See National Park Service NOTICES NOTICES FTA Supplemental Fiscal Year 2008 Apportionments and Human Capital, Performance and Partnerships National Allocations and Program Information, etc., 7789–7803 Invasive Species Council, 7757–7758 Food and Drug Administration International Trade Administration PROPOSED RULES NOTICES Proposal to Permit the Use of Ultrafiltered Milk; Extension Amendment to the Agreement Suspending the of Comment Period: Antidumping Investigation on Uranium from the Cheeses and Related Cheese Products, 7692–7693 Russian Federation, 7705–7708 NOTICES Countervailing Duty Administrative Review; Polyethylene Draft Guidance for Industry: Terephthalate Film, Sheet, and Strip from India, 7708– Validation of Growth-Based Rapid Microbiological 7710 Methods for Sterility Testing of Cellular and Gene Postponement of Preliminary Determinations of Therapy Products; Availability, 7746–7747 Antidumping Duty Investigations: Hemoglobin Based Oxygen Carriers; Current Status and Polyethylene Terephthalate Film, Sheet, and Strip from Future Directions; Public Workshop, 7747–7748 Brazil, the People’s Republic of China, Thailand, and the United Arab Emirates, 7710 Foreign Assets Control Office Stainless Steel Sheet and Strip in Coils from Mexico: NOTICES Final Results of Antidumping Duty Administrative Additional Designations of Individuals Pursuant to Review, 7710–7713 Executive Order 13448, 7805–7806 International Trade Commission Forest Service NOTICES NOTICES Fresh Tomatoes from Mexico, 7762 Availability of Record of Decision for the Buckman Water Diversion Project Environmental Impact Statement, Justice Department 7695–7696 See Antitrust Division See Drug Enforcement Administration Grain Inspection, Packers and Stockyards Administration PROPOSED RULES Labor Department Weighing, Feed, and Swine Contractors, 7686–7690 See Employment Standards Administration

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See Wage and Hour Division National Park Service PROPOSED RULES NOTICES Apprenticeship Programs, Labor Standards for Registration, National Register of Historic Places; Pending Nominations Amendment of Regulations; Extension of Time for and Related Actions, 7761–7762 Comments, 7693–7694 NOTICES Nuclear Regulatory Commission Agency Information Collection Activities; Proposals, PROPOSED RULES Submissions, and Approvals, 7764 Withdrawal of Petition for Rulemaking: North Carolina Utilities Commission Public Staff, 7690 NOTICES Land Management Bureau Request for a License to Export Radioactive Waste, 7764– NOTICES 7765 Alaska Native Claims Selection, 7759 Request for a License to Import Radioactive Waste, 7765– Availability of Record of Decision for the Buckman Water 7766 Diversion Project Environmental Impact Statement, Withdrawal of Regulatory Guide, 7766–7767 7695–7696 Securities and Exchange Commission Minerals Management Service NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals, 7767–7768 Submissions, and Approvals, 7759–7761 Application: Bear Stearns Asset Management, Inc., et al., 7768–7771 Barclays Global Fund Advisors, et al.; Application, 7771– National Highway Traffic Safety Administration 7774 NOTICES Meetings; Sunshine Act, 7774 Activities under the United Nations Economic Commission Self-Regulatory Organizations; Proposed Rule Changes: for Europe 1998 Global Agreement: NYSE Arca, Inc., 7774–7776 Glazing, 7803–7804 WisdomTree Trust, et al.; Application, 7776–7781 Social Security Administration National Institutes of Health NOTICES NOTICES Agency Information Collection Activities; Proposals, Meetings: Submissions, and Approvals, 7782–7783 National Cancer Institute, 7749 National Heart, Lung, and Blood Institute, 7749 State Department National Institute of Allergy and Infectious Diseases, RULES 7749–7752 Visas: Documentation of immigrants under the Immigration National Institute of Dental and Craniofacial Research, and Nationality Act, as Amended, 7670 7750 NOTICES National Institute of Environmental Health Sciences, Defense Trade Advisory Group; Notice of Membership, 7752 7783–7784 National Institute of General Medical Sciences, 7750– 7751 Transportation Department See Federal Aviation Administration See Federal Railroad Administration National Oceanic and Atmospheric Administration See Federal Transit Administration RULES See National Highway Traffic Safety Administration Endangered and Threatened Species: NOTICES Final Threatened Listing Determination Applications for Certificates of Public and Necessity and Oregon Coast Evolutionarily Significant Unit of Coho Foreign Air Carrier Permits, 7784 Salmon, 7816–7873 Applications for Certificates of Public Convenience and Fisheries of the Caribbean, Gulf of Mexico, and South Necessity and Foreign Air Carrier Permits, 7784–7785 Atlantic; Aviation Proceedings, Agreements Filed, 7785 Coastal Migratory Pelagic Resources of the Gulf of Mexico National Task Force to Develop Model Contingency Plans and South Atlantic; to Deal with Lengthy Airline On-Board Ground Delays, Atlantic Group Spanish Mackerel Commercial Trip 7785–7788 Limit in the Southern Zone; Change in Start Date, 7676–7678 Treasury Department Taking of marine mammals incidental to commercial See Alcohol and Tobacco Tax and Trade Bureau fishing operations; Atlantic large whale take reduction See Foreign Assets Control Office plan, 7674–7676 See United States Mint NOTICES Environmental Impact Statement; Southwest Fisheries U.S. Customs and Border Protection Science Center, La Jolla, CA, 7713–7714 NOTICES Environmental Statements; Notice of Intent: Accreditation and Approval of Inspectorate America Coastal Nonpoint Pollution Control Programs; States and Corporation, as a Commercial Gauger and Laboratory, Territories— 7752 Florida and South Carolina, 7714 Issuance of Final Determination Concerning Military-Grade Marine Mammals, 7715 Flashlights and Replacement Part, 7752–7754

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United States Mint Part IV NOTICES Labor Department, Employment Standards Administration; Agency Information Collection Activities; Proposals, Labor Department, Wage and Hour Division, 7876–8001 Submissions, and Approvals, 7806–7807 Wage and Hour Division PROPOSED RULES Reader Aids Family and Medical Leave Act of 1993, 7876–8001 Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. Separate Parts In This Issue To subscribe to the Federal Register Table of Contents Part II LISTSERV electronic mailing list, go to http:// Readers Aids, Office of the Federal Register, National listserv.access.gpo.gov and select Online mailing list Archives and Records Administration, 7810–7813 archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. Part III Commerce Department, National Oceanic and Atmospheric Administration, 7816–7873

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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.

7 CFR Proposed Rules: 301...... 7679 9 CFR Proposed Rules: 201...... 7686 10 CFR Proposed Rules: 50...... 7690 14 CFR 39 (5 documents) ...7657, 7659, 7661, 7663, 7666 71 (2 documents) ....7667, 7668 Proposed Rules: 39...... 7690 21 CFR Proposed Rules: 133...... 7692 22 CFR 42...... 7670 29 CFR Proposed Rules: 29...... 7693 825...... 7876 47 CFR 73...... 7671 Proposed Rules: 73...... 7694 50 CFR 223...... 7816 226...... 7816 229...... 7674 622...... 7676

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Rules and Regulations Federal Register Vol. 73, No. 28

Monday, February 11, 2008

This section of the FEDERAL REGISTER fuel vapors, could result in fuel tank The unsafe condition is the potential of contains regulatory documents having general explosions and consequent loss of the ignition sources inside fuel tanks, applicability and legal effect, most of which airplane. We are issuing this AD to which, in combination with flammable are keyed to and codified in the Code of require actions to correct the unsafe fuel vapors, could result in fuel tank Federal Regulations, which is published under condition on these products. explosions and consequent loss of the 50 titles pursuant to 44 U.S.C. 1510. DATES: This AD becomes effective airplane. Modification 3163 includes re- The Code of Federal Regulations is sold by March 17, 2008. routing of existing wiring to the FQIS, the Superintendent of Documents. Prices of The Director of the Federal Register installing new wires with shields to the new books are listed in the first FEDERAL approved the incorporation by reference FQIS, and operational and functional REGISTER issue of each week. of a certain publication listed in this AD tests of the FQIS. You may obtain as of March 17, 2008. further information by examining the MCAI in the AD docket. DEPARTMENT OF TRANSPORTATION ADDRESSES: You may examine the AD docket on the Internet at http:// Comments Federal Aviation Administration www.regulations.gov or in person at the We gave the public the opportunity to U.S. Department of Transportation, participate in developing this AD. We 14 CFR Part 39 Docket Operations, M–30, West received no comments on the NPRM or [Docket No. FAA–2007–0212; Directorate Building Ground Floor, Room W12–140, on the determination of the cost to the Identifier 2007–NM–237–AD; Amendment 1200 New Jersey Avenue, SE., public. 39–15368; AD 2008–03–17] Washington, DC. Conclusion RIN 2120–AA64 FOR FURTHER INFORMATION CONTACT: Shahram Daneshmandi, Aerospace We reviewed the available data and Airworthiness Directives; Saab Model Engineer, International Branch, ANM– determined that air safety and the SAAB SF340A and SAAB 340B 116, Transport Airplane Directorate, public interest require adopting the AD Airplanes FAA, 1601 Lind Avenue, SW., Renton, as proposed. Washington 98057–3356; telephone AGENCY: Federal Aviation (425) 227–1112; fax (425) 227–1149. Differences Between This AD and the Administration (FAA), Department of MCAI or Service Information SUPPLEMENTARY INFORMATION: Transportation (DOT). We have reviewed the MCAI and ACTION: Final rule. Discussion related service information and, in SUMMARY: We are adopting a new We issued a notice of proposed general, agree with their substance. But airworthiness directive (AD) for the rulemaking (NPRM) to amend 14 CFR we might have found it necessary to use products listed above. This AD results part 39 to include an AD that would different words from those in the MCAI from mandatory continuing apply to the specified products. That to ensure the AD is clear for U.S. airworthiness information (MCAI) NPRM was published in the Federal operators and is enforceable. In making originated by an aviation authority of Register on November 21, 2007 (72 FR these changes, we do not intend to differ another country to identify and correct 65480). That NPRM proposed to correct substantively from the information an unsafe condition on an aviation an unsafe condition for the specified provided in the MCAI and related product. The MCAI describes the unsafe products. The MCAI states: service information. condition as: Subsequent to accidents involving Fuel We might also have required different Tank System explosions in flight * * * and actions in this AD from those in the Subsequent to accidents involving Fuel MCAI in order to follow our FAA Tank System explosions in flight * * * and on ground, the FAA has published Special on ground, the FAA has published Special Federal Aviation Regulation 88 (SFAR88) in policies. Any such differences are Federal Aviation Regulation 88 (SFAR88) in June 2001. highlighted in a Note within the AD. In their Letters referenced 04/00/02/07/01– June 2001. Costs of Compliance In their Letters referenced 04/00/02/07/01– L296 dated March 4th, 2002 and 04/00/02/ L296 dated March 4th, 2002 and 04/00/02/ 07/03–L024, dated February 3rd, 2003, the We estimate that this AD will affect 07/03–L024, dated February 3rd, 2003, the JAA (Joint Aviation Authorities) about 218 products of U.S. registry. We recommended the application of a similar JAA (Joint Aviation Authorities) also estimate that it will take about 50 recommended the application of a similar regulation to the National Aviation Authorities (NAA). work-hours per product to comply with regulation to the National Aviation the basic requirements of this AD. The Authorities (NAA). Under this regulation, all holders of type Under this regulation, all holders of type certificates for passenger transport aircraft average labor rate is $80 per work-hour. certificates for passenger transport aircraft with either a passenger capacity of 30 or Required parts will cost about $1,500 with either a passenger capacity of 30 or more, or a payload capacity of 7,500 pounds per product. Where the service more, or a payload capacity of 7,500 pounds (3402 kg) or more, which have received their information lists required parts costs (3402 kg) or more, which have received their certification since January 1st, 1958, are that are covered under warranty, we certification since January 1st, 1958, are required to conduct a design review against have assumed that there will be no explosion risks. required to conduct a design review against charge for these parts. As we do not explosion risks. This Airworthiness Directive (AD), which renders mandatory the modification [3163] to control warranty coverage for affected The unsafe condition is the potential of separate wiring of Fuel Quantity Indication parties, some parties may incur costs ignition sources inside fuel tanks, System [FQIS], is a consequence of the higher than estimated here. Based on which, in combination with flammable design review. these figures, we estimate the cost of

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this AD to the U.S. operators to be List of Subjects in 14 CFR Part 39 consequent loss of the airplane. Modification $1,199,000, or $5,500 per product. 3163 includes re-routing of existing wiring to Air transportation, Aircraft, Aviation the FQIS, installing new wires with shields Authority for This Rulemaking safety, Incorporation by reference, to the FQIS, and operational and functional Safety. test of the FQIS. Title 49 of the United States Code specifies the FAA’s authority to issue Adoption of the Amendment Actions and Compliance rules on aviation safety. Subtitle I, I Accordingly, under the authority (f) Within 72 months after the effective section 106, describes the authority of delegated to me by the Administrator, date of this AD, unless already done, do the FAA Administrator. ‘‘Subtitle VII: the FAA amends 14 CFR part 39 as modification 3163 in accordance with the Aviation Programs,’’ describes in more follows: Accomplishment Instructions of Saab Service detail the scope of the Agency’s Bulletin 340–28–025, dated February 26, authority. PART 39—AIRWORTHINESS 2007. We are issuing this rulemaking under DIRECTIVES FAA AD Differences the authority described in ‘‘Subtitle VII, I Note 1: This AD differs from the MCAI Part A, Subpart III, Section 44701: 1. The authority citation for part 39 continues to read as follows: and/or service information as follows: No General requirements.’’ Under that differences. section, Congress charges the FAA with Authority: 49 U.S.C. 106(g), 40113, 44701. promoting safe flight of civil aircraft in Other FAA AD Provisions § 39.13 [Amended] air commerce by prescribing regulations (g) The following provisions also apply to for practices, methods, and procedures I 2. The FAA amends § 39.13 by adding this AD: the Administrator finds necessary for the following new AD: (1) Alternative Methods of Compliance (AMOCs): The Manager, International safety in air commerce. This regulation 2008–03–17 SaaB Aircraft AB: Amendment is within the scope of that authority Branch, ANM–116, Transport Airplane 39–15368. Docket No. FAA–2007–0212; Directorate, FAA, has the authority to because it addresses an unsafe condition Directorate Identifier 2007–NM–237–AD. approve AMOCs for this AD, if requested that is likely to exist or develop on Effective Date using the procedures found in 14 CFR 39.19. products identified in this rulemaking Send information to ATTN: Shahram (a) This airworthiness directive (AD) action. Daneshmandi, Aerospace Engineer, becomes effective March 17, 2008. International Branch, ANM–116, Transport Regulatory Findings Affected ADs Airplane Directorate, FAA, 1601 Lind We determined that this AD will not (b) None. Avenue, SW., Renton, Washington 98057– have federalism implications under 3356; telephone (425) 227–1112; fax (425) Applicability 227–1149. Before using any approved AMOC Executive Order 13132. This AD will (c) This AD applies to Saab Model SAAB on any airplane to which the AMOC applies, not have a substantial direct effect on notify your appropriate principal inspector the States, on the relationship between SF340A and SAAB 340B airplanes, all serial numbers, certificated in any category. (PI) in the FAA Flight Standards District the national government and the States, Office (FSDO), or lacking a PI, your local or on the distribution of power and Subject FSDO. responsibilities among the various (d) Air Transport Association (ATA) of (2) Airworthy Product: For any requirement levels of government. America Code 28: Fuel. in this AD to obtain corrective actions from a manufacturer or other source, use these For the reasons discussed above, I Reason certify this AD: actions if they are FAA-approved. Corrective (e) The mandatory continuing actions are considered FAA-approved if they 1. Is not a ‘‘significant regulatory airworthiness information (MCAI) states: are approved by the State of Design Authority action’’ under Executive Order 12866; Subsequent to accidents involving Fuel (or their delegated agent). You are required 2. Is not a ‘‘significant rule’’ under the Tank System explosions in flight * * * and to assure the product is airworthy before it DOT Regulatory Policies and Procedures on ground, the FAA has published Special is returned to service. (44 FR 11034, February 26, 1979); and Federal Aviation Regulation 88 (SFAR88) in (3) Reporting Requirements: For any 3. Will not have a significant June 2001. reporting requirement in this AD, under the economic impact, positive or negative, In their Letters referenced 04/00/02/07/01– provisions of the Paperwork Reduction Act, the Office of Management and Budget (OMB) on a substantial number of small entities L296 dated March 4th, 2002 and 04/00/02/ 07/03–L024, dated February 3rd, 2003, the has approved the information collection under the criteria of the Regulatory requirements and has assigned OMB Control Flexibility Act. JAA (Joint Aviation Authorities) recommended the application of a similar Number 2120–0056. We prepared a regulatory evaluation regulation to the National Aviation Related Information of the estimated costs to comply with Authorities (NAA). (h) Refer to MCAI EASA Airworthiness this AD and placed it in the AD docket. Under this regulation, all holders of type Directive 2007–0169, dated June 15, 2007; certificates for passenger transport aircraft Examining the AD Docket and Saab Service Bulletin 340–28–025, dated with either a passenger capacity of 30 or February 26, 2007; for related information. You may examine the AD docket on more, or a payload capacity of 7,500 pounds the Internet at http:// (3402 kg) or more, which have received their Material Incorporated by Reference www.regulations.gov; or in person at the certification since January 1st, 1958, are (i) You must use Saab Service Bulletin Docket Operations office between 9 a.m. required to conduct a design review against 340–28–025, dated February 26, 2007, to do explosion risks. the actions required by this AD, unless the and 5 p.m., Monday through Friday, This Airworthiness Directive (AD), which except Federal holidays. The AD docket AD specifies otherwise. renders mandatory the modification [3163] to (1) The Director of the Federal Register contains the NPRM, the regulatory separate wiring of Fuel Quantity Indication evaluation, any comments received, and approved the incorporation by reference of System [FQIS], is a consequence of the this service information under 5 U.S.C. other information. The street address for design review. 552(a) and 1 CFR part 51. the Docket Operations office (telephone The unsafe condition is the potential of (2) For service information identified in (800) 647–5527) is in the ADDRESSES ignition sources inside fuel tanks, which, in this AD, contact Saab Aircraft AB, SAAB section. Comments will be available in combination with flammable fuel vapors, Aircraft Product Support, S–581.88, the AD docket shortly after receipt. could result in fuel tank explosions and Linkoa¨ping, Sweden.

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(3) You may review copies at the FAA, www.regulations.gov or in person at the the doubler flange thickness does not Transport Airplane Directorate, 1601 Lind U.S. Department of Transportation, meet minimum specifications. Avenue, SW., Renton, Washington; or at the Docket Operations, M–30, West Additional corrective actions include National Archives and Records Building Ground Floor, Room W12–140, replacing conductive foil on the access Administration (NARA). For information on the availability of this material at NARA, call 1200 New Jersey Avenue, SE., door with an aluminum panel. You may (202) 741–6030, or go to: http:// Washington, DC. obtain further information by examining www.archives.gov/federal-register/cfr/ibr- FOR FURTHER INFORMATION CONTACT: the MCAI in the AD docket. locations.html. Shahram Daneshmandi, Aerospace Comments Issued in Renton, Washington, on January Engineer, International Branch, ANM– 30, 2008. 116, Transport Airplane Directorate, We gave the public the opportunity to participate in developing this AD. We Ali Bahrami, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057–3356; telephone received no comments on the NPRM or Manager, Transport Airplane Directorate, on the determination of the cost to the Aircraft Certification Service. (425) 227–1112; fax (425) 227–1149. public. [FR Doc. E8–2357 Filed 2–8–08; 8:45 am] SUPPLEMENTARY INFORMATION: BILLING CODE 4910–13–P Discussion Conclusion We issued a notice of proposed We reviewed the available data and determined that air safety and the DEPARTMENT OF TRANSPORTATION rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would public interest require adopting the AD Federal Aviation Administration apply to the specified products. That as proposed. NPRM was published in the Federal Differences Between This AD and the 14 CFR Part 39 Register on December 10, 2007 (72 FR MCAI or Service Information 69635). That NPRM proposed to correct [Docket No. FAA–2007–0298; Directorate We have reviewed the MCAI and an unsafe condition for the specified Identifier 2007–NM–238–AD; Amendment related service information and, in products. The MCAI states: 39–15369; AD 2008–03–18] general, agree with their substance. But Subsequent to accidents involving Fuel RIN 2120–AA64 we might have found it necessary to use Tank System explosions in flight * * * and different words from those in the MCAI on ground, the FAA has published Special Airworthiness Directives; Saab Model Federal Aviation Regulation 88 (SFAR88) in to ensure the AD is clear for U.S. SAAB SF340A and Model SAAB 340B June 2001. operators and is enforceable. In making Airplanes In their Letters referenced 04/00/02/07/01– these changes, we do not intend to differ L296 dated March 4, 2002 and 04/00/02/07/ substantively from the information AGENCY: Federal Aviation 03–L024, dated February 3, 2003, the JAA provided in the MCAI and related Administration (FAA), Department of recommended the application of a similar service information. Transportation (DOT). regulation to the National Aviation We might also have required different ACTION: Final rule. Authorities (NAA). actions in this AD from those in the Under this regulation, all holders of type MCAI in order to follow our FAA SUMMARY: We are adopting a new certificates for passenger transport aircraft airworthiness directive (AD) for the with either a passenger capacity of 30 or policies. Any such differences are products listed above. This AD results more, or a payload capacity of 7,500 pounds highlighted in a Note within the AD. from mandatory continuing (3402 kg) or more, which have received their Costs of Compliance airworthiness information (MCAI) certification since January 1, 1958, are required to conduct a design review against We estimate that this AD will affect originated by an aviation authority of explosion risks. about 168 products of U.S. registry. We another country to identify and correct This Airworthiness Directive (AD), which also estimate that it will take about 20 an unsafe condition on an aviation renders mandatory the modification [2762] of work-hours per product to comply with product. The MCAI describes the unsafe improving the sealing of Fuel Access Doors, the basic requirements of this AD. The condition as: is a consequence of the design review. average labor rate is $80 per work-hour. Subsequent to accidents involving Fuel The unsafe condition is the potential of Required parts will cost about $417 per Tank System explosions in flight * * * and ignition sources inside fuel tanks, product. Where the service information on ground, the FAA has published Special which, in combination with flammable lists required parts costs that are Federal Aviation Regulation 88 (SFAR88) fuel vapors, could result in fuel tank covered under warranty, we have * * * [which] required * * * [conducting] a explosions and consequent loss of the design review against explosion risks. assumed that there will be no charge for airplane. Modification 2762 includes these parts. As we do not control The unsafe condition is the potential of removing the fuel tank access doors and warranty coverage for affected parties, ignition sources inside fuel tanks, the old type of clamp rings and gaskets, some parties may incur costs higher which, in combination with flammable installing new, improved clamp rings than estimated here. Based on these fuel vapors, could result in fuel tank and re-installing the fuel tank access figures, we estimate the cost of this AD explosions and consequent loss of the doors, and doing related investigative to the U.S. operators to be about airplane. We are issuing this AD to and applicable corrective actions. $338,856, or about $2,017 per product. require actions to correct the unsafe Related investigative and applicable condition on these products. corrective actions include inspecting for Authority for This Rulemaking DATES: This AD becomes effective corrosion of the wing skin panel, access Title 49 of the United States Code March 17, 2008. door areas, and access doors; removing specifies the FAA’s authority to issue The Director of the Federal Register any corrosion found during the rules on aviation safety. Subtitle I, approved the incorporation by reference inspection; and replacing the access section 106, describes the authority of of certain publications listed in this AD door protection plate with a new the FAA Administrator. ‘‘Subtitle VII: as of March 17, 2008. protection plate. Corrosion removal also Aviation Programs,’’ describes in more ADDRESSES: You may examine the AD includes inspecting the doubler flange detail the scope of the Agency’s docket on the Internet at http:// and contacting Saab and doing repairs if authority.

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We are issuing this rulemaking under PART 39—AIRWORTHINESS includes inspecting the doubler flange and the authority described in ‘‘Subtitle VII, DIRECTIVES contacting Saab and doing repairs if the Part A, Subpart III, Section 44701: doubler flange thickness does not meet I General requirements.’’ Under that 1. The authority citation for part 39 minimum specifications. Additional continues to read as follows: corrective actions include replacing section, Congress charges the FAA with conductive foil on the access door with an promoting safe flight of civil aircraft in Authority: 49 U.S.C. 106(g), 40113, 44701. aluminum panel. air commerce by prescribing regulations § 39.13 [Amended] for practices, methods, and procedures Actions and Compliance the Administrator finds necessary for I 2. The FAA amends § 39.13 by adding (f) Within 72 months after the effective safety in air commerce. This regulation the following new AD: date of this AD, unless already done, do the is within the scope of that authority actions described in paragraphs (f)(1) and 2008–03–18 SaaB Aircraft AB: Amendment (f)(2) of this AD. because it addresses an unsafe condition 39–15369. Docket No. FAA–2007–0298; (1) Do Modification 2762 and all related that is likely to exist or develop on Directorate Identifier 2007–NM–238–AD. investigative actions and applicable products identified in this rulemaking Effective Date corrective actions, in accordance with the action. Accomplishment Instructions of Saab Service (a) This airworthiness directive (AD) Bulletin 340–57–031, Revision 02, dated becomes effective March 17, 2008. Regulatory Findings September 28, 2005. Do all applicable related We determined that this AD will not Affected ADs investigative and corrective actions before have federalism implications under (b) None. further flight. Actions done before the effective date of this AD in accordance with Executive Order 13132. This AD will Applicability the Accomplishment Instructions of Saab not have a substantial direct effect on (c) This AD applies to Saab Model SAAB Service Bulletin 340–57–031, dated the States, on the relationship between SF340A and Model SAAB 340B airplanes, September 4, 1996; or Revision 01, dated the national government and the States, certificated in any category, serial numbers June 28, 1999; are considered acceptable for or on the distribution of power and 004 through 401. compliance with the requirements of this responsibilities among the various paragraph. Subject levels of government. (2) For airplanes identified in Saab Service Bulletin 340–57–010, dated March 28, 1989, For the reasons discussed above, I (d) Air Transport Association (ATA) of America Code 57: Wings. do the additional corrective actions described certify this AD: in and in accordance with the 1. Is not a ‘‘significant regulatory Reason Accomplishment Instructions of that service action’’ under Executive Order 12866; (e) The mandatory continuing bulletin. airworthiness information (MCAI) states: 2. Is not a ‘‘significant rule’’ under the FAA AD Differences DOT Regulatory Policies and Procedures Subsequent to accidents involving Fuel Note 1: This AD differs from the MCAI (44 FR 11034, February 26, 1979); and Tank System explosions in flight * * * and on ground, the FAA has published Special and/or service information as follows: The 3. Will not have a significant Federal Aviation Regulation 88 (SFAR88) in MCAI does not require doing the actions of economic impact, positive or negative, June 2001. Saab Service Bulletin 340–57–010, which is on a substantial number of small entities In their Letters referenced 04/00/02/07/01– specified in Saab Service Bulletin 340–57– under the criteria of the Regulatory L296 dated March 4, 2002 and 04/00/02/07/ 031, Revision 02, as the appropriate source Flexibility Act. 03–L024, dated February 3, 2003, the JAA of service information for doing additional recommended the application of a similar corrective actions for certain airplanes to We prepared a regulatory evaluation regulation to the National Aviation completely address the unsafe condition. of the estimated costs to comply with Authorities (NAA). This AD requires accomplishing the this AD and placed it in the AD docket. Under this regulation, all holders of type additional corrective actions described in Examining the AD Docket certificates for passenger transport aircraft Service Bulletin 340–57–010 for certain with either a passenger capacity of 30 or airplanes. You may examine the AD docket on more, or a payload capacity of 7,500 pounds Other FAA AD Provisions the Internet at http:// (3402 kg) or more, which have received their www.regulations.gov; or in person at the certification since January 1, 1958, are (g) The following provisions also apply to required to conduct a design review against Docket Operations office between 9 a.m. this AD: explosion risks. (1) Alternative Methods of Compliance and 5 p.m., Monday through Friday, This Airworthiness Directive (AD), which (AMOCs): The Manager, International except Federal holidays. The AD docket renders mandatory the modification [2762] of Branch, ANM–116, FAA, has the authority to contains the NPRM, the regulatory improving the sealing of Fuel Access Doors, approve AMOCs for this AD, if requested evaluation, any comments received, and is a consequence of the design review. using the procedures found in 14 CFR 39.19. other information. The street address for The unsafe condition is the potential of Send information to ATTN: Shahram the Docket Operations office (telephone ignition sources inside fuel tanks, which, in Daneshmandi, Aerospace Engineer, (800) 647–5527) is in the ADDRESSES combination with flammable fuel vapors, International Branch, ANM–116, Transport section. Comments will be available in could result in fuel tank explosions and Airplane Directorate, FAA, 1601 Lind the AD docket shortly after receipt. consequent loss of the airplane. Modification Avenue, SW., Renton, Washington 98057– 2762 includes removing the fuel tank access 3356; telephone (425) 227–1112; fax (425) List of Subjects in 14 CFR Part 39 doors and the old type of clamp rings and 227–1149. Before using any approved AMOC gaskets, installing new, improved clamp on any airplane to which the AMOC applies, Air transportation, Aircraft, Aviation rings and re-installing the fuel tank access notify your appropriate principal inspector safety, Incorporation by reference, doors, and doing related investigative and (PI) in the FAA Flight Standards District Safety. applicable corrective actions. Related Office (FSDO), or lacking a PI, your local investigative and applicable corrective FSDO. Adoption of the Amendment actions include inspecting for corrosion of (2) Airworthy Product: For any requirement the wing skin panel, access door areas, and in this AD to obtain corrective actions from I Accordingly, under the authority access doors; removing any corrosion found a manufacturer or other source, use these delegated to me by the Administrator, during the inspection; and replacing the actions if they are FAA-approved. Corrective the FAA amends 14 CFR part 39 as access door protection plate with a new actions are considered FAA-approved if they follows: protection plate. Corrosion removal also are approved by the State of Design Authority

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(or their delegated agent). You are required products listed above. This AD results of sealant on the above-noted locations, if not to assure the product is airworthy before it from mandatory continuing corrected, could result in arcing and is returned to service. airworthiness information (MCAI) potential ignition source inside the fuel tank (3) Reporting Requirements: For any originated by an aviation authority of during lightning strikes and consequent fuel reporting requirement in this AD, under the tank explosion. To correct the unsafe provisions of the Paperwork Reduction Act, another country to identify and correct condition, this directive mandates the the Office of Management and Budget (OMB) an unsafe condition on an aviation application of sealant to the bolts that attach has approved the information collection product. The MCAI describes the unsafe various fittings on the collector fuel tanks, requirements and has assigned OMB Control condition as: [an inspection for a fillet seal and if Number 2120–0056. Bombardier Aerospace has completed a necessary application of fillet seal] to the edges of the transfer ejector pumps and [an Related Information system safety review of the CL–600–2B19 aircraft fuel system * * *. inspection for sealant and if necessary (h) Refer to MCAI EASA Airworthiness application of sealant] to the bolts that attach Directive 2007–0168, dated June 15, 2007; The assessment showed that sealant has not been applied to bolts on the collector fuel the transfer ejector pump to the transfer Saab Service Bulletin 340–57–031, Revision ejector pump casing. 02, dated September 28, 2005; and Saab tanks or the transfer ejector fuel pumps. Lack Service Bulletin 340–57–010, dated March of sealant on the above-noted locations, if not You may obtain further information by 28, 1989; for related information. corrected, could result in arcing and examining the MCAI in the AD docket. potential ignition source inside the fuel tank Material Incorporated by Reference during lightning strikes and consequent fuel Comments (i) You must use Saab Service Bulletin tank explosion. * * * We gave the public the opportunity to 340–57–031, Revision 02, dated September We are issuing this AD to require 28, 2005; and Saab Service Bulletin 340–57– participate in developing this AD. We actions to correct the unsafe condition received no comments on the NPRM or 010, dated March 28, 1989; as applicable; to on these products. do the actions required by this AD, unless the on the determination of the cost to the AD specifies otherwise. DATES: This AD becomes effective public. (1) The Director of the Federal Register March 17, 2008. approved the incorporation by reference of The Director of the Federal Register Conclusion this service information under 5 U.S.C. approved the incorporation by reference We reviewed the available data and 552(a) and 1 CFR part 51. of certain publications listed in this AD determined that air safety and the (2) For service information identified in as of March 17, 2008. this AD, contact Saab Aircraft AB, SAAB public interest require adopting the AD Aircraft Product Support, S–581.88, ADDRESSES: You may examine the AD as proposed. Linko¨ping, Sweden. docket on the Internet at http:// www.regulations.gov or in person at the Differences Between This AD and the (3) You may review copies at the FAA, MCAI or Service Information Transport Airplane Directorate, 1601 Lind U.S. Department of Transportation, Avenue, SW., Renton, Washington; or at the Docket Operations, M–30, West We have reviewed the MCAI and National Archives and Records Building Ground Floor, Room W12–140, related service information and, in Administration (NARA). For information on 1200 New Jersey Avenue, SE., general, agree with their substance. But the availability of this material at NARA, call Washington, DC. (202) 741–6030, or go to: http:// we might have found it necessary to use www.archives.gov/federal-register/cfr/ibr- FOR FURTHER INFORMATION CONTACT: different words from those in the MCAI locations.html. Rocco Viselli, Aerospace Engineer, to ensure the AD is clear for U.S. Airframe and Propulsion Branch, ANE– operators and is enforceable. In making Issued in Renton, Washington, on January 31, 2008. 171, FAA, New York Aircraft these changes, we do not intend to differ Certification Office, 1600 Stewart substantively from the information Ali Bahrami, Avenue, Suite 410, Westbury, New York provided in the MCAI and related Manager, Transport Airplane Directorate, 11590; telephone (516) 228–7331; fax service information. Aircraft Certification Service. (516) 794–5531. We might also have required different [FR Doc. E8–2344 Filed 2–8–08; 8:45 am] SUPPLEMENTARY INFORMATION: actions in this AD from those in the BILLING CODE 4910–13–P MCAI in order to follow our FAA Discussion policies. Any such differences are We issued a notice of proposed DEPARTMENT OF TRANSPORTATION highlighted in a Note within the AD. rulemaking (NPRM) to amend 14 CFR Costs of Compliance Federal Aviation Administration part 39 to include an AD that would apply to the specified products. That We estimate that this AD will affect 14 CFR Part 39 NPRM was published in the Federal about 626 products of U.S. registry. We Register on December 3, 2007 (72 FR also estimate that it will take about 31 [Docket No. FAA–2007–0262; Directorate 67870). That NPRM proposed to correct work-hours per product to comply with Identifier 2007–NM–247–AD; Amendment an unsafe condition for the specified the basic requirements of this AD. The 39–15370; AD 2008–03–19] products. The MCAI states: average labor rate is $80 per work-hour. RIN 2120–AA64 Bombardier Aerospace has completed a Required parts will cost a negligible system safety review of the CL–600–2B19 amount per product. Where the service Airworthiness Directives; Bombardier aircraft fuel system against new fuel tank information lists required parts costs Model CL–600–2B19 (Regional Jet safety standards, introduced in Chapter 525 that are covered under warranty, we Series 100 & 440) Airplanes of the Airworthiness Manual through Notice have assumed that there will be no of Proposed Amendment (NPA) 2002–043. AGENCY: Federal Aviation charge for these parts. As we do not The identified non-compliances were control warranty coverage for affected Administration (FAA), Department of assessed using Transport Canada Policy Transportation (DOT). Letter No. 525–001 to determine if mandatory parties, some parties may incur costs ACTION: Final rule. corrective action is required. higher than estimated here. Based on The assessment showed that sealant has these figures, we estimate the cost of SUMMARY: We are adopting a new not been applied to bolts on the collector fuel this AD to the U.S. operators to be airworthiness directive (AD) for the tanks or the transfer ejector fuel pumps. Lack $1,552,480, or $2,480 per product.

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Authority for This Rulemaking List of Subjects in 14 CFR Part 39 the transfer ejector pump to the transfer ejector pump casing. Title 49 of the United States Code Air transportation, Aircraft, Aviation Actions and Compliance specifies the FAA’s authority to issue safety, Incorporation by reference, rules on aviation safety. Subtitle I, Safety. (f) Unless already done, do the following section 106, describes the authority of actions. Adoption of the Amendment (1) Within 5,000 flight hours after the the FAA Administrator. ‘‘Subtitle VII: I effective date of this AD: For airplanes with Aviation Programs,’’ describes in more Accordingly, under the authority serial numbers 7003 through 7067 and 7069 detail the scope of the Agency’s delegated to me by the Administrator, through 7797, apply sealant to bolts on the authority. the FAA amends 14 CFR part 39 as collector fuel tanks according to the follows: We are issuing this rulemaking under Accomplishment Instructions of Bombardier Service Bulletin 601R–28–051, Revision A, the authority described in ‘‘Subtitle VII, PART 39—AIRWORTHINESS dated March 30, 2005. Part A, Subpart III, Section 44701: DIRECTIVES (2) Within 5,000 flight hours after the General requirements.’’ Under that effective date of this AD: For airplanes with section, Congress charges the FAA with I 1. The authority citation for part 39 serial numbers 7003 through 7067 and 7069 promoting safe flight of civil aircraft in continues to read as follows: through 7924, do a general visual inspection of the left and right transfer ejector pumps for air commerce by prescribing regulations Authority: 49 U.S.C. 106(g), 40113, 44701. for practices, methods, and procedures the presence of a fillet seal on the edge of the the Administrator finds necessary for § 39.13 [Amended] pumps and sealant on the bolts, according to the Accomplishment Instructions of safety in air commerce. This regulation I 2. The FAA amends § 39.13 by adding Bombardier Service Bulletin 601R–28–060, is within the scope of that authority the following new AD: Revision A, dated March 30, 2005. because it addresses an unsafe condition (3) If during the inspection required by 2008–03–19 Bombardier, Inc. (Formerly that is likely to exist or develop on paragraph (f)(2) of this AD any fillet seal is Canadair): Amendment 39–15370. found missing from the edge of the transfer products identified in this rulemaking Docket No. FAA–2007–0262; Directorate ejector pump or sealant is found missing action. Identifier 2007–NM–247–AD. from any of the bolts, prior to further flight, Regulatory Findings Effective Date apply fillet seal and sealant as applicable to (a) This airworthiness directive (AD) the affected areas according to the We determined that this AD will not Accomplishment Instructions of Bombardier becomes effective March 17, 2008. have federalism implications under Service Bulletin 601R–28–060, Revision A, Executive Order 13132. This AD will Affected ADs dated March 30, 2005. not have a substantial direct effect on (b) None. (4) Application of sealant prior to the the States, on the relationship between effective date of this AD according to Applicability the national government and the States, Bombardier Service Bulletin 601R–28–051, (c) This AD applies to Bombardier Model dated May 12, 2003, satisfies the or on the distribution of power and requirements of paragraph (f)(1) of this AD. responsibilities among the various CL–600–2B19 (Regional Jet Series 100 & 440) airplanes, serial numbers 7003 through 7067 (5) Inspection and application of sealant levels of government. and 7069 through 7924; certificated in any and fillet seal prior to the effective date of For the reasons discussed above, I category. this AD according to Bombardier Service certify this AD: Bulletin 601R–28–060, dated January 28, Subject 2004, satisfy the corresponding requirements 1. Is not a ‘‘significant regulatory (d) Air Transport Association (ATA) of of paragraphs (f)(2) and (f)(3) of this AD. action’’ under Executive Order 12866; America Code 28: Fuel. FAA AD Differences 2. Is not a ‘‘significant rule’’ under the Reason DOT Regulatory Policies and Procedures Note: This AD differs from the MCAI and/ (e) The mandatory continuing or service information as follows: No (44 FR 11034, February 26, 1979); and airworthiness information (MCAI) states: differences. 3. Will not have a significant Bombardier Aerospace has completed a economic impact, positive or negative, system safety review of the CL–600–2B19 Other FAA AD Provisions on a substantial number of small entities aircraft fuel system against new fuel tank (g) The following provisions also apply to under the criteria of the Regulatory safety standards, introduced in Chapter 525 this AD: Flexibility Act. of the Airworthiness Manual through Notice (1) Alternative Methods of Compliance of Proposed Amendment (NPA) 2002–043. (AMOCs): The Manager, New York Aircraft We prepared a regulatory evaluation The identified non-compliances were Certification Office, FAA, has the authority to of the estimated costs to comply with assessed using Transport Canada Policy approve AMOCs for this AD, if requested this AD and placed it in the AD docket. Letter No. 525–001 to determine if mandatory using the procedures found in 14 CFR 39.19. corrective action is required. Send information to ATTN: Rocco Viselli, Examining the AD Docket The assessment showed that sealant has Aerospace Engineer, Airframe and not been applied to bolts on the collector fuel Propulsion Branch, ANE–171, FAA, New You may examine the AD docket on tanks or the transfer ejector fuel pumps. Lack York Aircraft Certification Office, 1600 the Internet at http:// of sealant on the above-noted locations, if not Stewart Avenue, Suite 410, Westbury, New www.regulations.gov; or in person at the corrected, could result in arcing and York 11590; telephone (516) 228–7331; fax Docket Operations office between 9 a.m. potential ignition source inside the fuel tank (516) 794–5531. Before using any approved and 5 p.m., Monday through Friday, during lightning strikes and consequent fuel AMOC on any airplane to which the AMOC except Federal holidays. The AD docket tank explosion. To correct the unsafe applies, notify your appropriate principal contains the NPRM, the regulatory condition, this directive mandates the inspector (PI) in the FAA Flight Standards evaluation, any comments received, and application of sealant to the bolts that attach District Office (FSDO), or lacking a PI, your various fittings on the collector fuel tanks, local FSDO. other information. The street address for [an inspection for a fillet seal and if (2) Airworthy Product: For any requirement the Docket Operations office (telephone necessary application of fillet seal] to the in this AD to obtain corrective actions from (800) 647–5527) is in the ADDRESSES edges of the transfer ejector pumps and [an a manufacturer or other source, use these section. Comments will be available in inspection for sealant and if necessary actions if they are FAA-approved. Corrective the AD docket shortly after receipt. application of sealant] to the bolts that attach actions are considered FAA-approved if they

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are approved by the State of Design Authority SUMMARY: We are adopting a new and 5 p.m., Monday through Friday, (or their delegated agent). You are required airworthiness directive (AD) for the except Federal holidays. The AD docket to assure the product is airworthy before it products listed above. This AD results contains this AD, the regulatory is returned to service. (3) Reporting Requirements: For any from mandatory continuing evaluation, any comments received, and reporting requirement in this AD, under the airworthiness information (MCAI) other information. The street address for provisions of the Paperwork Reduction Act, originated by an aviation authority of the Docket Operations office (telephone the Office of Management and Budget (OMB) another country to identify and correct (800) 647–5527) is in the ADDRESSES has approved the information collection an unsafe condition on an aviation section. Comments will be available in requirements and has assigned OMB Control product. The MCAI describes the unsafe the AD docket shortly after receipt. Number 2120–0056. condition as: FOR FURTHER INFORMATION CONTACT: Tom Related Information Rodriguez, Aerospace Engineer, * * * * * (h) Refer to MCAI Canadian Airworthiness Recently, it was discovered that the International Branch, ANM–116, FAA, Directive CF–2007–17, dated September 4, inspection procedure as described by Fokker Transport Airplane Directorate, 1601 2007; and Bombardier Service Bulletins 50 Non-Destructive Testing Manual (NDTM), Lind Avenue, SW., Renton, Washington 601R–28–051 and 601R–28–060, both Part 6, Chapter 53–30–02, which is 98057–3356; telephone (425) 227–1137; Revision A, both dated March 30, 2005; for referenced by Fokker 50 Maintenance Review fax (425) 227–1149. related information. Board (MRB) Tasks Number 530000–00–04 SUPPLEMENTARY INFORMATION: Material Incorporated by Reference and 530000–00–08 [currently required per AD (BLA) 2002–061], did not show the Discussion (i) You must use Bombardier Service correct inspection areas. In addition to the Bulletin 601R–28–051, Revision A, dated The Civil Aviation Authority—The March 30, 2005; and Bombardier Service existing procedure, the area at the kink in the Netherlands (CAA–NL), which is the bottom fuselage skin, the actual chine line, Bulletin 601R–28–060, Revision A, dated aviation authority for the Netherlands, March 30, 2005; as applicable; to do the must be inspected. Investigation revealed that a number of aircraft have already passed has issued Dutch Airworthiness actions required by this AD, unless the AD Directive NL–2006–009 R1 dated specifies otherwise. the relevant inspection thresholds of 20,000 (1) The Director of the Federal Register and 45,000 flight cycles by a considerable September 28, 2006 (referred to after approved the incorporation by reference of margin. As a result, it may be possible that this as ‘‘the MCAI’’), to correct an unsafe this service information under 5 U.S.C. cracks have developed and remained condition for the specified products. 552(a) and 1 CFR part 51. undetected. * * * The MCAI states: (2) For service information identified in * * * * * this AD, contact Bombardier, Inc., Canadair, * * * * * Aerospace Group, P.O. Box 6087, Station The unsafe condition is cracking and Recently, it was discovered that the Centre-ville, Montreal, Quebec H3C 3G9, subsequent failure of the fuselage inspection procedure as described by Fokker Canada. bottom skin, which could result in 50 Non-Destructive Testing Manual (NDTM), (3) You may review copies at the FAA, reduced structural integrity of the Part 6, Chapter 53–30–02, which is Transport Airplane Directorate, 1601 Lind fuselage. This AD requires actions that referenced by Fokker 50 Maintenance Review Avenue, SW., Renton, Washington; or at the are intended to address the unsafe Board (MRB) Tasks Number 530000–00–04 and 530000–00–08 [currently required per National Archives and Records condition described in the MCAI. Administration (NARA). For information on AD (BLA) 2002–061], did not show the the availability of this material at NARA, call DATES: This AD becomes effective correct inspection areas. In addition to the (202) 741–6030, or go to: http:// February 26, 2008. existing procedure, the area at the kink in the www.archives.gov/federal-register/cfr/ibr- The Director of the Federal Register bottom fuselage skin, the actual chine line, locations.html. approved the incorporation by reference must be inspected. Investigation revealed of certain publications listed in the AD that a number of aircraft have already passed Issued in Renton, Washington, on January the relevant inspection thresholds of 20,000 31, 2008. as of February 26, 2008. We must receive comments on this and 45,000 flight cycles by a considerable Ali Bahrami, margin. As a result, it may be possible that AD by March 12, 2008. Manager, Transport Airplane Directorate, cracks have developed and remained Aircraft Certification Service. ADDRESSES: You may send comments by undetected. To prevent future use of the [FR Doc. E8–2343 Filed 2–8–08; 8:45 am] any of the following methods: incorrect procedure in NDTM, Part 6, chapter • Federal eRulemaking Portal: Go to 53–30–02, Fokker Services has removed this BILLING CODE 4910–13–P http://www.regulations.gov. Follow the procedure from the NDTM and replaced by instructions for submitting comments. chapter 53–30–03 (refer to NDTM Temporary • Revisions No. 53–004 and 53–005 dated DEPARTMENT OF TRANSPORTATION Fax: (202) 493–2251. • Mail: U.S. Department of September 15, 2006). Furthermore the Fokker Transportation, Docket Operations, M– 50/60 Maintenance Planning Document (refer Federal Aviation Administration to MPD Temporary Revision No. 53–009 30, West Building Ground Floor, Room dated August 15, 2006) has been revised to 14 CFR Part 39 W12–140, 1200 New Jersey Avenue, SE., delete references to the incorrect procedure Washington, DC 20590. and to include references to the correct [Docket No. FAA–2008–0153; Directorate • Hand Delivery: U.S. Department of Identifier 2007–NM–243–AD; Amendment procedure of NDTM, Part 6, chapter 53–30– 39–15372; AD 2008–03–21] Transportation, Docket Operations, M– 03. This condition, if not corrected, could 30, West Building Ground Floor, Room result in failure of the fuselage bottom skin. RIN 2120–AA64 W12–40, 1200 New Jersey Avenue, SE., Since an unsafe condition has been identified Washington, DC, between 9 a.m. and 5 that is likely to exist or develop on aircraft Airworthiness Directives; Fokker p.m., Monday through Friday, except of this type design, CAA–NL has originally Model F.27 Mark 050 Airplanes Federal holidays. published AD NL–2006–009, which is now replaced by NL–2006–009 R1. AGENCY: Federal Aviation Examining the AD Docket This directive requires a one-time Administration (FAA), Department of inspection of the fuselage bottom skin at the Transportation (DOT). You may examine the AD docket on chine line, of the area not covered by the the Internet at http:// ACTION: Final rule; request for procedure of NDTM, Part 6, chapter 53–30– www.regulations.gov; or in person at the comments. 02. This one-time inspection consists of two Docket Operations office between 9 a.m. parts:

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—A detailed visual inspection. The visual FAA’s Determination of the Effective For the reasons discussed above, I inspection is described in Fokker Services Date certify this AD: Service Bulletin SBF50–53–058 (dated 1. Is not a ‘‘significant regulatory June 30, 2006). Since there are currently no domestic operators of this product, notice and action’’ under Executive Order 12866; —An eddy-current inspection. The eddy- 2. Is not a ‘‘significant rule’’ under the current inspection is described in Fokker opportunity for public comment before Services Service Bulletin SBF50–53–059 issuing this AD are unnecessary. DOT Regulatory Policies and Procedures (dated August 24, 2006). (44 FR 11034, February 26, 1979); and Comments Invited 3. Will not have a significant The unsafe condition is cracking and This AD is a final rule that involves economic impact, positive or negative, subsequent failure of the fuselage requirements affecting flight safety, and on a substantial number of small entities bottom skin, which could result in we did not precede it by notice and under the criteria of the Regulatory reduced structural integrity of the opportunity for public comment. We Flexibility Act. fuselage. Corrective actions include invite you to send any written relevant We prepared a regulatory evaluation repairing any cracking. You may obtain data, views, or arguments about this AD. of the estimated costs to comply with further information by examining the Send your comments to an address this AD and placed it in the AD docket. MCAI in the AD docket. listed under the ADDRESSES section. List of Subjects in 14 CFR Part 39 Relevant Service Information Include ‘‘Docket No. FAA–2008–0153; Directorate Identifier 2007–NM–243– Air transportation, Aircraft, Aviation Fokker Services B.V. has issued AD’’ at the beginning of your comments. safety, Incorporation by reference, Service Bulletins SBF50–53–058, dated We specifically invite comments on the Safety. June 30, 2006, and SBF50–53–059, overall regulatory, economic, Adoption of the Amendment dated August 24, 2006. The actions environmental, and energy aspects of described in this service information are this AD. We will consider all comments Accordingly, under the authority intended to correct the unsafe condition received by the closing date and may delegated to me by the Administrator, identified in the MCAI. amend this AD because of those the FAA amends 14 CFR part 39 as follows: FAA’s Determination and Requirements comments. We will post all comments we of This AD receive, without change, to http:// PART 39—AIRWORTHINESS DIRECTIVES This product has been approved by www.regulations.gov, including any the aviation authority of another personal information you provide. We I 1. The authority citation for part 39 country, and is approved for operation will also post a report summarizing each continues to read as follows: in the United States. Pursuant to our substantive verbal contact we receive bilateral agreement with the State of about this AD. Authority: 49 U.S.C. 106(g), 40113, 44701. Design Authority, we have been notified Authority for This Rulemaking § 39.13 [Amended] of the unsafe condition described in the I MCAI and service information Title 49 of the United States Code 2. The FAA amends § 39.13 by adding referenced above. We are issuing this specifies the FAA’s authority to issue the following new AD: AD because we evaluated all pertinent rules on aviation safety. Subtitle I, 2008–03–21 Fokker Services B.V: information and determined the unsafe section 106, describes the authority of Amendment 39–15372. Docket No. condition exists and is likely to exist or the FAA Administrator. ‘‘Subtitle VII: FAA–2008–0153; Directorate Identifier develop on other products of the same Aviation Programs,’’ describes in more 2007–NM–243–AD. type design. detail the scope of the Agency’s Effective Date authority. There are no products of this type We are issuing this rulemaking under (a) This airworthiness directive (AD) currently registered in the United States. the authority described in ‘‘Subtitle VII, becomes effective February 26, 2008. However, this rule is necessary to Part A, Subpart III, Section 44701: Affected ADs ensure that the described unsafe General requirements.’’ Under that (b) None. condition is addressed if any of these section, Congress charges the FAA with products are placed on the U.S. Register promoting safe flight of civil aircraft in Applicability in the future. air commerce by prescribing regulations (c) This AD applies to Fokker Model F.27 Differences Between the AD and the for practices, methods, and procedures Mark 050 airplanes, certificated in any the Administrator finds necessary for category; serial numbers 20103 through MCAI or Service Information 20172 inclusive. safety in air commerce. This regulation We have reviewed the MCAI and is within the scope of that authority Subject related service information and, in because it addresses an unsafe condition (d) Air Transport Association (ATA) of general, agree with their substance. But that is likely to exist or develop on America Code 53: Fuselage. we might have found it necessary to use products identified in this rulemaking Reason different words from those in the MCAI action. to ensure the AD is clear for U.S. (e) The mandatory continued airworthiness operators and is enforceable. In making Regulatory Findings information (MCAI) states: these changes, we do not intend to differ We determined that this AD will not * * * * * substantively from the information have federalism implications under Recently, it was discovered that the provided in the MCAI and related Executive Order 13132. This AD will inspection procedure as described by Fokker service information. not have a substantial direct effect on 50 Non-Destructive Testing Manual (NDTM), Part 6, Chapter 53–30–02, which is We might also have required different the States, on the relationship between referenced by Fokker 50 Maintenance Review actions in this AD from those in the the national government and the States, Board (MRB) Tasks Number 530000–00–04 MCAI in order to follow FAA policies. or on the distribution of power and and 530000–00–08 [currently required per Any such differences are highlighted in responsibilities among the various AD (BLA) 2002–061], did not show the a Note within the AD. levels of government. correct inspection areas. In addition to the

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existing procedure, the area at the kink in the STA 15375 in accordance with Part 3, Steps accomplishing the applicable repair before bottom fuselage skin, the actual chine line, A. and B., of the Accomplishment further flight if any crack is found. must be inspected. Investigation revealed Instructions of Fokker Service Bulletin that a number of aircraft have already passed SBF50–53–058, dated June 30, 2006. If any Other FAA AD Provisions the relevant inspection thresholds of 20,000 crack is found appearing through the paint (g) The following provisions also apply to and 45,000 flight cycles by a considerable layer, before further flight, remove the paint this AD: margin. As a result, it may be possible that to determine the extent of the cracking and (1) Alternative Methods of Compliance cracks have developed and remained repair in accordance with the instructions in (AMOCs): The Manager, International undetected. To prevent future use of the the service bulletin. Branch, ANM–116, has the authority to incorrect procedure in NDTM, Part 6, chapter (2) Before the accumulation of 45,000 total approve AMOCs for this AD, if requested 53–30–02, Fokker Services has removed this flight cycles, or within 3 weeks after the using the procedures found in 14 CFR 39.19. effective date of this AD, whichever occurs procedure from the NDTM and replaced by Send information to ATTN: Tom Rodriguez, later, perform a detailed visual inspection for chapter 53–30–03 (refer to NDTM Temporary Aerospace Engineer, International Branch, cracks of the fuselage bottom skin chine line Revisions No. 53–004 and 53–005 dated ANM–116, Transport Airplane Directorate, September 15, 2006). Furthermore the Fokker between STA 1320 and STA 3100 in accordance with Part 3, Steps C. and D., of FAA, 1601 Lind Avenue, SW., Renton, 50/60 Maintenance Planning Document (refer Washington 98057–3356; telephone (425) to MPD Temporary Revision No. 53–009 the Accomplishment Instructions of Fokker Service Bulletin SBF50–53–058, dated June 227–1137; fax (425) 227–1149. Before using dated August 15, 2006) has been revised to any approved AMOC on any airplane to delete references to the incorrect procedure 30, 2006. If any crack is found appearing through the paint layer, before further flight which the AMOC applies, notify your and to include references to the correct appropriate principal inspector (PI) in the procedure of NDTM, Part 6, chapter 53–30– remove the paint to determine the extent of the cracking and repair in accordance with FAA Flight Standards District Office (FSDO), 03. This condition, if not corrected, could or lacking a PI, your local FSDO. result in failure of the fuselage bottom skin. the instructions in the service bulletin. (3) In all cases, whether or not cracks were (2) Airworthy Product: For any requirement Since an unsafe condition has been identified in this AD to obtain corrective actions from that is likely to exist or develop on aircraft found and repaired in accordance with the a manufacturer or other source, use these of this type design, CAA–NL has originally requirements in paragraphs (f)(1) and (f)(2) of actions if they are FAA-approved. Corrective published AD NL–2006–009, which is now this AD: Within 1,000 flight cycles after the visual inspections required by paragraphs actions are considered FAA-approved if they replaced by NL–2006–009 R1. (f)(1) and (f)(2) of this AD or within 1,000 are approved by the State of Design Authority This directive requires a one-time flight cycles after the effective date of this (or their delegated agent). You are required inspection of the fuselage bottom skin at the AD, whichever occurs later, do an eddy to assure the product is airworthy before it chine line, of the area not covered by the current inspection of the fuselage bottom is returned to service. procedure of NDTM, Part 6, chapter 53–30– skin chine line (between the same fuselage (3) Reporting Requirements: For any 02. This one-time inspection consists of two stations as covered by the visual inspection) reporting requirement in this AD, under the parts: in accordance with Part 3 of the provisions of the Paperwork Reduction Act, —A detailed visual inspection. The visual Accomplishment Instructions of Fokker the Office of Management and Budget (OMB) inspection is described in Fokker Services Service Bulletin SBF50–53–059, dated has approved the information collection Service Bulletin SBF50–53–058 (dated August 24, 2006. If any crack is found during requirements and has assigned OMB Control June 30, 2006). any eddy-current inspection, repair before Number 2120–0056. —An eddy-current inspection. The eddy- further flight in accordance with the current inspection is described in Fokker instructions in the service bulletin. Related Information Services Service Bulletin SBF50–53–059 (4) If any crack is found as a result of any (h) Refer to Mandatory Continuing (dated August 24, 2006). inspection requirement of this directive, Airworthiness Information (MCAI) CAA–NL The unsafe condition is cracking and within 30 days after the inspection or 30 days Dutch Airworthiness Directive NL–2006–009 subsequent failure of the fuselage bottom after the effective date of this AD, whichever R1 dated September 28, 2006; and Fokker skin, which could result in reduced occurs later, report all findings to the Type Service Bulletins SBF50–53–058, dated June structural integrity of the fuselage. Corrective Certificate holder at the following address: 30, 2006, and SBF50–53–059, dated August actions include repairing any cracking. Fokker Services B.V., Technical Services 24, 2006; for related information. Dept., P.O. Box 231, 2150 AE Nieuw-Vennep, Actions and Compliance the Netherlands. Material Incorporated by Reference (f) Unless already done, do the following (i) You must use Fokker Service Bulletin FAA AD Differences actions. SBF50–53–058, dated June 30, 2006; and (1) Before the accumulation of 20,000 total Note: This AD differs from the MCAI and/ Fokker Service Bulletin SBF50–53–059, flight cycles, or within 3 weeks after the or service information as follows: Although dated August 24, 2006; as applicable, to do effective date of this AD, whichever occurs the MCAI or service information allows flight the actions required by this AD, unless the later, perform a detailed visual inspection for with cracks of different lengths on the AD specifies otherwise. Fokker Service cracks of the fuselage bottom skin chine line fuselage bottom skin chine line between Bulletin SBF50–53–059 contains the between fuselage station (STA) 6675 and certain fuselage stations, this AD requires following effective pages:

Page Nos. Revision level shown on page Date shown on page

1, 3, 5, 7, 9, 11, 13, 15 ...... Original ...... August 24, 2006. 2, 4, 6, 8, 10, 12, 14, 16 ...... Original ...... August 21, 2006.

(1) The Director of the Federal Register (3) You may review copies at the FAA, Issued in Renton, Washington, on January approved the incorporation by reference of Transport Airplane Directorate, 1601 Lind 31, 2008. this service information under 5 U.S.C. Avenue, SW., Renton, Washington; or at the Ali Bahrami, 552(a) and 1 CFR part 51. National Archives and Records Manager, Transport Airplane Directorate, Administration (NARA). For information on (2) For service information identified in Aircraft Certification Service. this AD, contact Fokker Services B.V., the availability of this material at NARA, call [FR Doc. E8–2362 Filed 2–8–08; 8:45 am] Technical Services Dept., P.O. Box 231, 2150 (202) 741–6030, or go to: http:// AE Nieuw-Vennep, the Netherlands. www.archives.gov/federal-register/cfr/ibr- BILLING CODE 4910–13–P locations.html.

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DEPARTMENT OF TRANSPORTATION Aircraft Certification Office, 1601 Lind In consideration of the ATA’s concern Avenue, SW., Renton, Washington about parts availability, we have Federal Aviation Administration 98057–3356; telephone (425) 917–6457; confirmed with Boeing that it can fax (425) 917–6590. provide the material listed in Boeing 14 CFR Part 39 SUPPLEMENTARY INFORMATION: Special Attention Service Bulletin 737– 25–1567 within the 60-month [Docket No. FAA–2007–28921; Directorate Discussion Identifier 2007–NM–091–AD; Amendment compliance time. The only new 39–15371; AD 2008–03–20] The FAA issued a notice of proposed component required to modify the rulemaking (NPRM) to amend 14 CFR compartment assembly is the material RIN 2120–AA64 part 39 to include an AD that would for the enlarged window. Therefore, we apply to certain Boeing Model 737–300, Airworthiness Directives; Boeing have made no change to the final rule –400, and –500 series airplanes. That Model 737–300, –400, and –500 Series in this regard. NPRM was published in the Federal Airplanes Register on August 16, 2007 (72 FR Conclusion AGENCY: Federal Aviation 45972). That NPRM proposed to require, We have carefully reviewed the Administration (FAA), Department of among other actions, modifying the available data, including the comments Transportation (DOT). door-mounted escape system of the received, and determined that air safety ACTION: Final rule. forward right side door slide and the public interest require adopting compartment. the AD as proposed. SUMMARY: The FAA is adopting a new airworthiness directive (AD) for certain Comments Costs of Compliance Boeing Model 737–300, –400, and –500 We provided the public the There are about 1,949 airplanes of the series airplanes. This AD requires, opportunity to participate in the affected design in the worldwide fleet. among other actions, modifying the development of this AD. We have This AD will affect about 660 airplanes door-mounted escape system of the considered the comments received. of U.S. registry. The required modification and installation actions forward right side door slide Support for NPRM compartment. This AD results from will take about 2 work hours per reports indicating that the forward right Boeing and the Air Transport airplane, at an average labor rate of $80 escape slide inflated 90 degrees out of Association (ATA), on behalf of its per work hour. Required parts will cost alignment after deployment from the member Continental, support the NPRM about $207 per airplane. Based on these forward right side slide compartment. as proposed. figures, the estimated cost of the AD for We are issuing this AD to prevent the Request To Allow Replacement of U.S. operators is $242,220, or $367 per escape slide from being unusable during Entire Compartment Assembly airplane. an emergency evacuation and The ATA requests that operators be Authority for This Rulemaking consequent injury to passengers or allowed to replace the entire crewmembers. Title 49 of the United States Code compartment assembly rather than specifies the FAA’s authority to issue DATES: This AD becomes effective modifying it in accordance with Boeing rules on aviation safety. Subtitle I, March 17, 2008. Special Attention Service Bulletin 737– Section 106, describes the authority of The Director of the Federal Register 25–1567, dated March 21, 2007 (referred the FAA Administrator. Subtitle VII, approved the incorporation by reference to as the appropriate source of service Aviation Programs, describes in more of a certain publication listed in the AD information in the AD for detail the scope of the Agency’s as of March 17, 2008. accomplishing the required authority. ADDRESSES: For service information modification). The ATA has concerns We are issuing this rulemaking under identified in this AD, contact Boeing about the availability of the slide the authority described in Subtitle VII, Commercial Airplanes, P.O. Box 3707, compartment parts from Boeing. Part A, Subpart III, Section 44701, Seattle, Washington 98124–2207. We partially agree with the ATA. We ‘‘General requirements.’’ Under that agree that replacing the entire Examining the AD Docket section, Congress charges the FAA with compartment assembly may be an promoting safe flight of civil aircraft in You may examine the AD docket on alternative method of compliance air commerce by prescribing regulations the Internet at http:// (AMOC) to the modification for practices, methods, and procedures www.regulations.gov; or in person at the requirements of this AD. However, we the Administrator finds necessary for Docket Management Facility between 9 do not have service information which safety in air commerce. This regulation a.m. and 5 p.m., Monday through describes such a replacement. We is within the scope of that authority Friday, except Federal holidays. The AD consider delaying issuance of this AD because it addresses an unsafe condition docket contains this AD, the regulatory until Boeing revises Boeing Special that is likely to exist or develop on evaluation, any comments received, and Attention Service Bulletin 737–25–1567 products identified in this rulemaking other information. The address for the or develops other service information to action. Docket Office (telephone 800–647–5527) be inappropriate, since we have is the Document Management Facility, determined that an unsafe condition Regulatory Findings U.S. Department of Transportation, exists and that modification of the door- We have determined that this AD will Docket Operations, M–30, West mounted escape system must be done to not have federalism implications under Building Ground Floor, Room W12–140, ensure continued safety. However, Executive Order 13132. This AD will 1200 New Jersey Avenue, SE., under the provision of paragraph (h) of not have a substantial direct effect on Washington, DC 20590. this AD, we might consider requests for the States, on the relationship between FOR FURTHER INFORMATION CONTACT: approval of an AMOC if sufficient data the national government and the States, Robert Hettman, Aerospace Engineer, are submitted to substantiate that such or on the distribution of power and Cabin Safety & Environmental Systems a design change would provide an responsibilities among the various Branch, ANM–150S, FAA, Seattle acceptable level of safety. levels of government.

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For the reasons discussed above, I the compliance times specified, unless the DEPARTMENT OF TRANSPORTATION certify that this AD: actions have already been done. (1) Is not a ‘‘significant regulatory Federal Aviation Administration Modification and Installation action’’ under Executive Order 12866; (2) Is not a ‘‘significant rule’’ under (f) Within 60 months after the effective 14 CFR Part 71 DOT Regulatory Policies and Procedures date of this AD, modify the door-mounted escape system of the forward right side door (44 FR 11034, February 26, 1979); and [Docket No. FAA–2008–0003; Airspace slide compartment, in accordance with the (3) Will not have a significant Docket No. 08–ASW–1] economic impact, positive or negative, Accomplishment Instructions of Boeing on a substantial number of small entities Special Attention Service Bulletin 737–25– Establishment of Class E Airspace; under the criteria of the Regulatory 1567, dated March 21, 2007. Lexington, OK Flexibility Act. Prior to or Concurrent Requirement We prepared a regulatory evaluation AGENCY: Federal Aviation of the estimated costs to comply with (g) Prior to or concurrently with the Administration (FAA), DOT. this AD and placed it in the AD docket. requirements of paragraph (f) of this AD, accomplish the requirements of AD 2004–02– ACTION: Direct final rule; request for See the ADDRESSES section for a location comments. to examine the regulatory evaluation. 08, amendment 39–13443. Alternative Methods of Compliance List of Subjects in 14 CFR Part 39 SUMMARY: This action establishes Class (AMOCs) Air transportation, Aircraft, Aviation E2 airspace at Lexington, OK. (h)(1) The Manager, Seattle Aircraft Additional controlled airspace is safety, Incorporation by reference, Certification Office, FAA, has the authority to Safety. necessary to accommodate aircraft using approve AMOCs for this AD, if requested in new RNAV Global Positioning System Adoption of the Amendment accordance with the procedures found in 14 (GPS) Standard Instrument Approach CFR 39.19. I Procedures (SIAP) at Muldrow Army Accordingly, under the authority (2) To request a different method of delegated to me by the Administrator, Heliport. The FAA proposes this action compliance or a different compliance time to enhance the safety and management the FAA amends 14 CFR part 39 as for this AD, follow the procedures in 14 CFR follows: of Instrument Flight Rules (IFR) aircraft 39.19. Before using any approved AMOC on operations at Muldrow Army Heliport, any airplane to which the AMOC applies, PART 39—AIRWORTHINESS Lexington, OK. notify your appropriate principal inspector DIRECTIVES (PI) in the FAA Flight Standards District DATES: Effective Dates: 0901 UTC April I 1. The authority citation for part 39 Office (FSDO), or lacking a PI, your local 10, 2008. Comments for inclusion in the continues to read as follows: FSDO. rules Docket must be received March 27, 2008. The Director of the Federal Authority: 49 U.S.C. 106(g), 40113, 44701. Material Incorporated by Reference Register approves this incorporation by § 39.13 [Amended] (i) You must use Boeing Special Attention reference action under Title 1, Code of Service Bulletin 737–25–1567, dated March I 2. The Federal Aviation Federal Regulations, part 51, subject to 21, 2007, to perform the actions that are the annual revision of FAA Order Administration (FAA) amends § 39.13 required by this AD, unless the AD specifies by adding the following new 7400.9 and publication of conforming otherwise. The Director of the Federal amendments. airworthiness directive (AD): Register approved the incorporation by 2008–03–20 Boeing: Amendment 39–15371. reference of this document in accordance ADDRESSES: Send comments on this Docket No. FAA–2007–28921; with 5 U.S.C. 552(a) and 1 CFR part 51. proposal to the U.S. Department of Directorate Identifier 2007–NM–091–AD. Contact Boeing Commercial Airplanes, P.O. Transportation, Docket Operations, 1200 Effective Date Box 3707, Seattle, Washington 98124–2207 New Jersey Avenue, SE., West Building (a) This AD becomes effective March 17, for a copy of this service information. You Ground Floor, Room W12–140, 2008. may review copies at the FAA, Transport Washington, DC 20590–0001. You must Airplane Directorate, 1601 Lind Avenue, identify the docket number FAA–2008– Affected ADs SW., Renton, Washington; or at the National 0003/Airspace Docket No. 08–ASW–1, (b) None. Archives and Records Administration at the beginning of your comments. You Applicability (NARA). For information on the availability may also submit comments through the of this material at NARA, call 202–741–6030, (c) This AD applies to Boeing Model 737– Internet at http://regulations.gov. You 300, –400, and –500 series airplanes, or go to: http://www.archives.gov/federal- may review the public docket certificated in any category; as identified in register/cfr/ibr-locations.html. containing the proposal, any comments Boeing Special Attention Service Bulletin Issued in Renton, Washington, on January received, and any final disposition in 737–25–1567, dated March 21, 2007. 30, 2008. person in the Dockets Office between 9 Unsafe Condition Ali Bahrami, a.m. and 5 p.m., Monday through Friday, except Federal holidays. The (d) This AD results from reports indicating Manager, Transport Airplane Directorate, Docket Office, telephone number 1– that the forward door escape slide inflated 90 Aircraft Certification Service. degrees out of alignment after deployment 800–647–5527, is on the ground floor of [FR Doc. E8–2363 Filed 2–8–08; 8:45 am] from the forward right side slide the building at the above address. compartment. We are issuing this AD to BILLING CODE 4910–13–P prevent the escape slide from being unusable FOR FURTHER INFORMATION CONTACT: Joe during an emergency evacuation and Yadouga, Central Service Center, consequent injury to passengers or System Support Group, Federal crewmembers. Aviation Administration, Southwest Compliance Region, Fort Worth, Texas 76193–0530; telephone number (817) 222–5597. (e) You are responsible for having the actions required by this AD performed within SUPPLEMENTARY INFORMATION:

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The Direct Final Rule Procedure is incorporated by reference in 14 CFR PART 71—DESIGNATION OF CLASS A, The FAA anticipates that this Part 71.1. Class E2 designations listed in B, C, D AND E AIRSPACE AREAS; AIR regulation will not result in adverse or this document will be published TRAFFIC SERVICE ROUTES; AND negative comments, and, therefore, subsequently in the Order. REPORTING POINTS issues it as a direct final rule. Unless a Agency Findings I 1. The authority citation for part 71 written adverse or negative comment or continues to read as follows: a written notice of intent to submit an The regulations adopted herein will Authority: 49 U.S.C. 106(g); 40103, 40113, adverse or negative comment is received not have substantial direct effects on the States, on the relationship between the 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– within the comment period, the 1963 Comp., p 389. regulation will become effective on the national government and the States, or date specified above. After the close of on the distribution of power and § 71.1 Amended responsibilities among various levels of the comment period, the FAA will I 2. The incorporation by reference in government. Therefore, it is determined publish a document in the Federal 14 CFR 71.1 of Federal Aviation that this final rule does not have Register indicating that no adverse or Administration Order 7400.9R, Airspace federalism implication under Executive negative comments were received and Designation and Reporting Points, Order 13132. confirming the effective date of the rule. signed August 15, 2007, and effective If the FAA receives, within the The FAA has determined that this September 15, 2007, is amended as comment period, an adverse or negative regulation only involves an established follows: comment, or written comment notice of body of technical regulations for which intent to submit such a comment, a frequent and routine amendments are Paragraph 6002 Class E2 airspace areas document withdrawing the direct final necessary to keep them operationally extending upward from the surface of the earth. rule will be published in the Federal current, is non-controversial and Register, and a notice of proposed unlikely to result in adverse or negative * * * * * rulemaking may be published with a comments. It, therefore, (1) is not a ASW OK E2 Lexington, OK [New] new comment period. ‘‘significant regulatory action’’ under Muldrow Army Heliport Executive Order 12866; (2) is not a ° ′ ″ ° ′ ″ Comments Invited (lat. 35 01 58 N., long. 97 13 90 W.) ‘‘significant rule’’ under DOT That airspace extending upward from the Although this action is in the form of Regulatory Policies and Procedures (44 surface to and including 3,600 feet above a direct final rule, and was not preceded FR 11034; February 26, 1979); and (3) mean sea level (MSL) within a 3.7-mile by a notice of proposed rulemaking, does not warrant preparation of a radius of the Muldrow Army Heliport, OK interested persons are invited to Regulatory Evaluation as the anticipated and within 3 miles each side of the Muldrow comment on this rule by submitting impact is so minimal since this is a runway 175 Copter RNAV (GPS) Runway 17 such written data, views, or arguments routine matter that will only affect air approach course extending north from the 3.7 as they may desire. An electronic copy traffic procedures and air navigation. It mile radius to the 6.8 mile extension. This of this document may be downloaded airspace is effective during specific dates and is certified that this rule, when times established in advance by Notice to from http://www.regulations.gov. promulgated, will not have a significant Airmen. The effective date and time will Communications should identify both economic impact on a substantial thereafter be continuously published in the docket numbers and be submitted in number of small entities under the Airport/Facility Directory. triplicate to the address specified under criteria of the Regulatory Flexibility Act. * * * * * the caption ADDRESSES above or through The FAA’s authority to issue rules Issued in Forth Worth, TX on January 25, the Web site. All communications regarding aviation safety is found in received on or before the closing date 2008. Title 49, of the United States Code. Delisa Kik, for comments will be considered, and Subtitle I, Section 106 describes the this rule may be amended or withdrawn Acting Manager, System Support Group, ATO authority of the FAA Administrator. Central Service Center. in light of the comments received. Subtitle VII, Aviation Programs, [FR Doc. 08–525 Filed 2–8–08; 8:45 am] The Rule describes in more detail the scope of the agency’s authority. BILLING CODE 4910–13–M This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 This rulemaking is promulgated establishes Class E2 airspace at under the authority described in subtitle DEPARTMENT OF TRANSPORTATION Lexington, OK providing the airspace VII, Part A, subpart I, section 40103. Federal Aviation Administration required to support the new Copter Under that section, the FAA is charged RNAV (GPS) Runway 17 approach with prescribing regulations to assign 14 CFR Part 71 developed for IFR landings at Muldrow the use of airspace necessary to ensure Army Heliport, OK. No Class E2 the safety of aircraft and the efficient [Docket No. FAA–2008–0024; Airspace airspace exists in the area so new use of airspace. This regulation is Docket No. 08–AGL–4] airspace must be developed which will within the scope of that authority as it serve IFR operations into Muldrow establishes Class E2 airspace near Establishment of Class E5 Airspace; Army Heliport. Controlled airspace Lexington, OK. Black River Falls, WI extending upward from the surface is Lists of Subjects in 14 CFR Part 71 AGENCY: Federal Aviation required to encompass all SIAP and for Administration (FAA), DOT. the safety of IFR operations at Muldrow Airspace, Incorporation by reference, Navigation (Air). ACTION: Direct final rule; request for Army Heliport, Lexington, OK. comments. Designations for class E2 airspace areas Adoption of the Amendment extending upward from the surface of SUMMARY: This action establishes Class the earth are published in the FAA I In consideration of the foregoing, the E5 airspace at Black River Falls, WI. Order 7400.9R, signed August 15, 2007 Federal Aviation Administration Additional controlled airspace is and effective September 15, 2007, which amends 14 CFR part 71 as follows: necessary to accommodate aircraft using

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new RNAV Global Positioning System Register, and a notice of proposed unlikely to result in adverse or negative (GPS) Standard Instrument Approach rulemaking may be published with a comments. It, therefore, (1) is not a Procedures (SIAP) at Black River Falls new comment period. ‘‘significant regulatory action’’ under Area. The FAA proposes this action to Comments Invited Executive Order 12866; (2) is not a enhance the safety and management of ‘‘significant rule’’ under DOT Instrument Flight Rules (IFR) aircraft Although this action is in the form of Regulatory Policies and Procedures (44 operations at Black River Falls Area a direct final rule, and was not preceded FR 11034; February 26, 1979); and (3) Airport, Black River Falls, WI. by a notice of proposed rulemaking, does not warrant preparation of a DATES: Effective Dates: 0901 UTC April interested persons are invited to Regulatory Evaluation as the anticipated 10, 2008. Comments for inclusion in the comment on this rule by submitting impact is so minimal since this is a such written data, views, or arguments rules Docket must be received by March routine matter that will only affect air as they may desire. An electronic copy 27, 2008. The Director of the Federal traffic procedures and air navigation. It of this document may be downloaded Register approves this incorporation by is certified that this rule, when reference action under Title 1, Code of from http://www.regulations.gov. Communications should identify both promulgated, will not have a significant Federal Regulations, part 51, subject to economic impact on a substantial the annual revision of FAA Order docket numbers and be submitted in triplicate to the address specified under number of small entities under the 7400.9 and publication of conforming criteria of the Regulatory Flexibility Act. amendments. caption ADDRESSES above or through the Web site. All communications received The FAA’s authority to issue rules ADDRESSES: Send comments on this on or before the closing date for regarding aviation safety is found in proposal to the U.S. Department of comments will be considered, and this Title 49 of the United States Code. Transportation, Docket Operations, 1200 rule may be amended or withdrawn in Subtitle I, Section 106 describes the New Jersey Avenue, SE., West Building light of the comments received. authority of the FAA Administrator. Ground Floor, Room W12–140, Subtitle VII, Aviation Programs, Washington, DC 20590–0001. You must The Rule describes in more detail the scope of the identify the docket number FAA–2008– This amendment to Title 14, Code of agency’s authority. 0024/Airspace Docket No. 08–AGL–4, at Federal Regulations (14 CFR) part 71 the beginning of your comments. You establishes Class E5 airspace at Black This rulemaking is promulgated may also submit comments through the River Falls, WI providing the airspace under the authority described in subtitle Internet at http://regulations.gov. You required to support the new RNAV VII, Part A, subpart I, section 40103. may review the public docket (GPS) Runway 08 approach developed Under that section, the FAA is charged containing the proposal, any comments for IFR landings at Black River Falls with prescribing regulations to assign received, and any final disposition in Area Airport. No Class E5 airspace the use of airspace necessary to ensure person in the Dockets Office between 9 exists in the area so new airspace must the safety of aircraft and the efficient a.m. and 5 p.m., Monday through be developed which will serve IFR use of airspace. This regulation is Friday, except Federal holidays. The operations into Black River Falls Area within the scope of that authority as it Docket Office, telephone number 1– Airport. Controlled airspace extending establishes Class E5 airspace near Black 800–647–5527, is on the ground floor of upward from the surface is required to River Falls, WI. the building at the above address. encompass all SIAP and for the safety of Lists of Subjects in 14 CFR Part 71 FOR FURTHER INFORMATION CONTACT: Joe IFR operations at Black River Falls Area Yadouga, Central Service Center, Airport, Black River Falls, WI. Airspace, Incorporation by reference, System Support Group, Federal Designations for Class E5 airspace areas Navigation (Air). Aviation Administration, Southwest extending upward from 700 feet above Region, Fort Worth, Texas 76193–0530; the surface of the earth are published in Adoption of the Amendment telephone number (817) 222–5597. the FAA Order 7400.9R, signed August I SUPPLEMENTARY INFORMATION: 15, 2007 and effective September 15, In consideration of the foregoing, the Federal Aviation Administration The Direct Final Rule Procedure 2007, which is incorporated by reference in 14 CFR Part 71.1. Class E5 amends 14 CFR part 71 as follows: The FAA anticipates that this designations listed in this document PART 71—DESIGNATION OF CLASS A, regulation will not result in adverse or will be published subsequently in the B, C, D AND E AIRSPACE AREAS; AIR negative comments, and, therefore, Order. issues it as a direct final rule. Unless a TRAFFIC SERVICE ROUTES; AND written adverse or negative comment or Agency Findings REPORTING POINTS a written notice of intent to submit an The regulations adopted herein will adverse or negative comment is received not have substantial direct effects on the I 1. The authority citation for part 71 within the comment period, the States, on the relationship between the continues to read as follows: regulation will become effective on the national government and the States, or Authority: 49 U.S.C. 106(g); 40103, 40113, date specified above. After the close of on the distribution of power and 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– the comment period, the FAA will responsibilities among various levels of 1963 Comp., p. 389. publish a document in the Federal government. Therefore, it is determined Register indicating that no adverse or that this final rule does not have § 71.1 Amended negative comments were received and federalism implication under Executive confirming the effective date of the rule. Order 13132. I 2. The incorporation by reference in If the FAA receives, within the The FAA has determined that this 14 CFR 71.1 of Federal Aviation comment period, an adverse or negative regulation only involves an established Administration Order 7400.9R, Airspace comment, or written comment notice of body of technical regulations for which Designation and Reporting Points, intent to submit such a comment, a frequent and routine amendments are signed August 15, 2007, and effective document withdrawing the direct final necessary to keep them operationally September 15, 2007, is amended as rule will be published in the Federal current, is non-controversial and follows:

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Paragraph 6005 Class E5 airspace areas is being amended to make color photos Executive Order 12866 extending upward from the surface of the the only acceptable photographs for a The Department of State has reviewed earth. petition for consideration for diversity this proposed rule to ensure its * * * * * visa issuance. Compared to black and consistency with the regulatory white, color photographs enhance the AGL WI E5 Black River Falls, WI philosophy and principles set forth in facial recognition process and reduce Executive Order 12866 and has Black River Falls Area Airport the opportunity for fraud. (lat. 44°15′02.7″ N., long. 90°51′19.01″ W.) determined that the benefits of the That airspace extending upward from 700 Regulatory Findings proposed regulation justify its costs. The feet above the surface within a 6.4-mile Department does not consider the Administrative Procedure Act radius of Black River Falls Area Airport and proposed rule to be an economically within 3.9 miles each side of RNAV (GPS) This regulation involves a foreign significant action within the scope of Runway 08 approach course and extending affairs function of the United States and, section 3(f)(1) of the Executive Order from 6.4-mile radius to 8.8 miles west of the therefore, in accordance with 5 U.S.C. since it is not likely to have an annual airport. This airspace is effective during 553(a)(1), is not subject to the rule specific dates and times established in effect on the economy of $100 million making procedures set forth at 5 U.S.C. or more or to adversely affect in a advance by Notice to Airmen. The effective 553. date and time will thereafter be continuously material way the economy, a sector of published in the Airport/Facility Directory. Regulatory Flexibility Act/Executive the economy, competition, jobs, the * * * * * Order 13272: Small Business environment, public health or safety, or state, local or tribal governments or Because this final rule is exempt from Issued in Fort Worth, TX on January 25, communities. 2008. notice and comment rulemaking under Delisa Kik, 5 U.S.C. 553, it is exempt from the Executive Orders 12372 and 13132: Acting Manager, System Support Group, ATO regulatory flexibility analysis Federalism requirements set forth at sections 603 Central Service Center. This regulation will not have and 604 of the Regulatory Flexibility [FR Doc. 08–528 Filed 2–8–08; 8:45 am] substantial direct effects on the States, Act (5 U.S.C. 603 and 604). Nonetheless, BILLING CODE 4910–13–M on the relationship between the national consistent with section 605(b) of the government and the States, or the Regulatory Flexibility Act (5 U.S.C. distribution of power and 605(b)), the Department certifies that DEPARTMENT OF STATE responsibilities among the various this rule will not have a significant levels of government. Nor will the rule 22 CFR Part 42 economic impact on a substantial number of small entities. This regulates have federalism implications warranting [Public Notice: 6100] individual aliens who seek the application of Executive Orders No. consideration for diversity immigrant 12372 and No. 13132. Visas: Documentation of Immigrants visas and does not affect any small Under the Immigration and Nationality Paperwork Reduction Act entities, as defined in 5 U.S.C. 601(6). Act, as Amended This rule does not impose information The Unfunded Mandates Reform Act of collection requirements under the AGENCY: Department of State. 1995 provisions of the Paperwork Reduction ACTION: Final rule. Section 202 of the Unfunded Act, 44 U.S.C., Chapter 35. SUMMARY: This rule revises the photo Mandates Reform Act of 1995 (UFMA), List of Subjects in 22 CFR Part 42 requirement as part of the application Public Law 104–4, 109 Stat. 48, 2 U.S.C. process for a Diversity Immigrant Visa, 1532, generally requires agencies to Immigration, Photographs, Visas. to require that the photo be in color. prepare a statement before proposing I Accordingly, for the reasons set forth Color photographs enhance facial any rule that may result in an annual above, Title 22 part 42 is amended as recognition and reduce the opportunity expenditure of $100 million or more by follows: for fraud. State, local, or tribal governments, or by PART 42—[AMENDED] DATES: This rule is effective February the private sector. This rule will not result in any such expenditure, nor will 11, 2008. I 1. The authority citation for part 42 it significantly or uniquely affect small FOR FURTHER INFORMATION CONTACT: continues to read as follows: governments. Charles Robertson, Legislation and Authority: 8 U.S.C. 1104; Pub. L. 107–56, Regulations Division, Visa Services, The Small Business Regulatory sec. 421. Department of State, 2401 E Street, NW., Enforcement Fairness Act of 1996 I 2. Revise § 42.33 paragraph (b)(2) (iii) Room L–603D, Washington, DC 20520– This rule is not a major rule as to read as follows: 0106, (202) 663–1202, e-mail defined by 5 U.S.C. 804, for purposes of ([email protected]). congressional review of agency § 42.33 Diversity immigrants. SUPPLEMENTARY INFORMATION: rulemaking under the Small Business * * * * * Regulatory Enforcement Fairness Act of (b) * * * Why is the Department promulgating 1996, Public Law 104–121. This rule (2) * * * this rule? will not result in an annual effect on the (iii) The image must be in color. In the past, photographs submitted at economy of $100 million or more; a * * * * * the time of electronically filing petitions major increase in costs or prices; or for consideration under INA 203(c) for adverse effects on competition, Dated: January 31, 2008. issuance of diversity immigrant visas employment, investment, productivity, Maura Harty, could be in either color or black and innovation, or the ability of United Assistant Secretary for Consular Affairs, white. As part of the general States-based companies to compete with Department of State. harmonization of photo requirements foreign based companies in domestic [FR Doc. E8–2463 Filed 2–8–08; 8:45 am] for all visa functions, this requirement and import markets. BILLING CODE 4710–06–P

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FEDERAL COMMUNICATIONS KMGR(FM), Channel 240C1, Delta, the Station KZBQ(FM) license. The COMMISSION Utah; and College Creek Broadcasting, reference coordinates for Channel 230C LLC, permittee of Station KADQ–FM, at Pocatello are 42–51–57 NL and 112– 47 CFR Part 73 Channel 252C2 at Evanston, Wyoming 30–46 WL, located 5.6 kilometers (3.5 [DA 08–126; MB Docket No. 05–243; RM– and FM Station KRPX, Channel 237C3 miles) west of Pocatello. To 11363; RM–11364, RM–11365] at Wellington, Utah requests the accommodate Channel 260C3 at substitution of Channel 252C for Weston, we are substituting Channel Radio Broadcasting Services; Various Channel 252C2 at Evanston, Wyoming, 261C3 for Channel 261C2 at Soda Locations and modification of the Station KADQ- Spring, Idaho, reallotting Channel FM authorization. The reference 261C3 from Soda Springs, Idaho to AGENCY: Federal Communications coordinates for Channel 252C at Wilson, Wyoming, as its first local Commission. Evanston are 41–14–14 NL and 110–58– service, and modifying the Station ACTION: Final rule. 09 WL, located 3.5 kilometers (2.2 KITT(FM)’s license. The reference SUMMARY: The Audio Division amends miles) south of Evanston. To coordinates for Channel 261C3 at the FM Table of Allotments by accommodate the Evanston channel Wilson are 43–27–40 NL and 110–45–09 substituting Channel 259C for vacant substitution, we are substituting WL, located 10.8 kilometers (6.7 miles) Channel 273C at Meeteetse, Wyoming. Channel 237C3 for Channel 252C3 at southeast of Wilson. In order to Channel 259C can be allotted to Price, Utah, and modifying the Station eliminate the gray area created by the Meeteetse, Wyoming in conformity with KARB(FM) license, which in turn Wilson reallotment, we are reallotting the Commission’s Rules without a site requires the substitution of Channel Channel 297C2 from Kemmerer, restriction at reference coordinates 44– 233C3 for Channel 237C3 at Wellington, Wyoming to Shelley, Idaho, as its 09–26 NL and 108–52–15WL. Utah, and modification of the FM second local service, and modifying the Additionally, the Audio Division grants Station KRPX authorization. The Station KAOX(FM) license. The three counterproposals filed timely in reference coordinates for Channel 237C3 reference coordinates for Channel 297C2 this proceeding. See SUPPLEMENTARY at Price are 39–36–33 NL and 110–48– at Shelley are 43–02–00 NL and 111– INFORMATION, supra. 50 WL, located 1.1 kilometers (0.7 55–34 WL, located 41.8 kilometers (26 DATES: Effective March 3, 2008. miles) north of Price. The reference miles) south of Shelley. To facilitate the coordinates for Channel 233C3 at Shelley reallotment, we are substituting ADDRESSES: Secretary, Federal Wellington are 39–30–41 NL and 110– Channel 300C1 for Channel 296C1 at Communications Commission, 445 45–54 WL, located 4.3 kilometers (2.7 Idaho Falls, Idaho, and modifying the Twelfth Street, SW., Washington, DC miles) southwest of Wellington. In order Station KEQO(FM)’s license and 20554. to allot Channel 233C3 at Wellington, substituting Channel 223C1 for Channel FOR FURTHER INFORMATION CONTACT: we are substituting Channel 239C for 223C3 at Naples, Utah, reallotting Rolanda F. Smith, Media Bureau, (202) vacant Channel 233C at Salina, Utah, Channel 223C1 from Naples, Utah, to 418–2180. which in turn requires the substitution Diamondville, Wyoming and modifying SUPPLEMENTARY INFORMATION: This is a of Channel 240C0 for Channel 240C1 at the Station KCUA(FM) license. The summary of the Commission’s Report Delta, Utah, reallotting Channel 240C0 reference coordinates for Channel 300C1 and Order, MB Docket No. 05–243, from Delta to Randolph, Utah, as its at Idaho Falls are 43–46–04 NL and adopted January 16, 2008, and released second local service, and modifying the 111–57–57 WL, located 33.9 kilometers January 18, 2008. The full text of this Station KMGR(FM) license. The (21.1 miles) north of Idaho Falls. The Commission decision is available for reference coordinates for Channel 239C reference coordinates for Channel 223C1 inspection and copying during normal at Salina are 38–50–58 NL and 112–00– at Diamondville are 41–54–14 NL and business hours in the Commission’s 28 WL, located 17.6 kilometers (11 110–31–06 WL, located 13.9 kilometers Reference Information Center, 445 miles) southwest of Salina. The (8.6 miles) north of Diamondville. In Twelfth Street, SW., Washington, DC reference coordinates for Channel 240C0 order to allot Channel 223C1 to 20554. The complete text of this at Randolph are 41–56–46 NL and 111– Diamondville, we are substituting decision may also be purchased from 00–04 WL, located 34.5 kilometers (21.5 Channel 223A for Channel 223C2 at the Commission’s duplicating miles) northeast of Randolph. To South Jordan, Utah, and modifying the contractor, Best Copy and Printing, Inc., accommodate the Randolph reallotment, Station KUUU(FM) license. The 445 12th Street, SW., Room CY–B402, we are substituting Channel 260C3 for reference coordinates of Channel 223A Washington, DC 20554, telephone 1– Channel 240A at Weston, Idaho, and at South Jordan are 40–27–11 NL and 800–378–3160 or http:// modifying the Station KLZX(FM) 111–56–36 WL, located 12.2 kilometers www.BCPIWEB.com. The Commission license. The reference coordinates for (7.6 miles) south of South Jordan. will send a copy of this Report and Channel 260C3 at Weston are 41–52–18 Moreover, we are substituting Channel Order in a report to be sent to Congress NL and 111–48–31 WL, located 23.2 255C2 for Channel 253C2 at Roosevelt, and the Government Accountability kilometers (14.4 miles) southwest of Utah, reallotting Channel 255C2 from Office pursuant to the Congressional Weston. The Channel 260C3 at Weston Roosevelt, Utah, to Naples, Utah, to Review Act, see 5 U.S.C. 801(a)(1)(A). requires the substitution of Channel prevent removal of Naples’ sole local The first counterproposal filed jointly 228C for Channel 260C at Burley, Idaho, service, and modifying the Station by Millcreek Broadcasting, LLC, and modification of Station KZDX(FM)’s KIFX(FM) license. The reference licensee of Station KUUU(FM), Channel license to facilitate this change. The coordinates of Channel 255C2 at Naples 223C2, South Jordan, Utah; Simmons reference coordinates for Channel 228C are 40–33–24 NL and 109–38–08 WL, SLC, LLC, licensee of Station at Burley are 42–29–33 NL and 113–44– located 18.5 kilometers (11.5 miles) KAOX(FM), Channel 297C2, Kemmerer, 44 WL, located 6.1 kilometers (3.8 northwest of Naples. To accommodate Wyoming; 3 Point Media—Coalville, miles) southwest of Burley. In order to the Naples reallotment, we are LLC, licensee of Station KCUA(FM), allot Channel 228C at Burley, we are substituting Channel 268C3 for vacant Channel 223C3, Naples, Utah; 3 Point substituting Channel 230C for Channel Channel 255C3 at Fruita, Colorado. The Media—Delta, LLC, licensee of Station 229C at Pocatello, Idaho, and modifying reference coordinates for Channel 268C3

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at Fruita are 39–06–52 NL and 108–51– Centerville. In order to allot Channel modifying the Station KUDD(FM) 09 WL. To accommodate the Randolph 290C to Centerville, we are substituting license. The reference coordinates for reallotment, we are substituting Channel Channel 245C2 for Channel 290A at Channel 300C at Randolph are 41–04– 239C3 for Channel 239C1 at Marbleton, Vernal, Utah, and modifying Station 48 NL and 111–05–32 WL. This site is Wyoming, reallotting Channel 239C3 KLCY–FM’s license and substituting located 65.5 kilometers (40.7 miles) from Marbleton, Wyoming, to Ballard, Channel 294C for Channel 293C at south of Randolph. To accommodate Utah, as its first local service, and Spanish Fork, Utah, and modifying Channel 290C at Centerville, we are modifying the Station KFMR(FM) Station KOSY–FM’s license. The substituting Channel 286C3 for Channel authorization. The reference coordinates reference coordinates for Channel 245C2 290C3 at Thayne, Wyoming, and for Channel 239C3 at Ballard are 40–27– at Vernal are 40–32–16 NL and 109–41– modifying the Station KTYN(FM) 04 NL and 109–56–25 WL, located 18 57 WL. This site is located 17.1 authorization, which in turn requires kilometers (11.2 miles) north of Ballard. kilometers (10.7 miles) northwest of substituting Channel 243A for vacant To prevent removal of potential first Vernal. The reference coordinates for Channel 286A at Dubois, Idaho. The local service at Marbleton, we are Channel 294C at Spanish Fork are 40– reference coordinates for Channel 286C3 allotting Channel 257C1 at Marbleton, 39–34 NL and 112–12–05 WL. This site at Thayne are 43–06–18 NL and 111– Wyoming. The reference coordinates of is located 76.2 kilometers (47.4 miles) 07–17 WL. This site is located 22.7 Channel 257C1 at Marbleton are 42–19– northwest of Spanish Fork. To kilometers (14.1 miles) northwest of 28 NL and 110–19–12 WL, located 30.8 accommodate the Channel 294C to Thayne. The reference coordinates for kilometers (19.2 miles) southwest of Spanish Fork, we are substituting Channel 243A at Dubois are 44–15–50 Marbleton. Channel 296C for Channel 295C at NL and 112–09–00 WL. This site is The second counterproposal filed Brigham City, Utah, reallotting Channel located 11.6 kilometers (7.2 miles) jointly by Millcreek Broadcasting, LLC, 296C from Brigham City to Woodruff, northeast of Dubois. The allotment of licensee of Stations KNJQ(FM), Channel Utah, as the community’s second local Channel 286A at Dubois was added to 286C, Manti, Utah, KUUU(FM), Channel service, and modifying the Station the FM Table in MB Docket No. 04–427. 223C2, South Jordan, Utah, and KRAR(FM) license, which in turns See 70 FR 37289, published June 29, KUDD(FM), Channel 300C, Roy, Utah; requires reallotting Channel 297C2 from 2005. Channel 286A at Dubois was Simmon SLC, LS, LLC, licensee of Kemmerer, Wyoming to Shelley, Idaho, inadvertently removed from the FM Stations KDWY(FM), Channel 287C2, as its second local service, and Table of Allotments in MB Docket No. Diamondville, Wyoming, KAOX(FM), modifying the Station KAOX(FM) 05–210. See 72 FR 45813, published Channel 297C1, Kemmerer, Wyoming, license. The reference coordinates for August 15, 2007. To accommodate the and KRAR(FM), Channel 295C, Brigham Channel 296C at Woodruff are 40–56–07 Dubois vacant allotment, we are City, Utah; 3 Point Media-Coalville, NL and 111–00–03 WL. This site is substituting Channel 283A for Channel LLC, licensee of Station KCUA(FM), located 66.5 kilometers (41.3 miles) 243C2 at Ashton, Idaho, and modifying Channel 223C3, Naples, Utah; and south of Woodruff. The reference the Station KRID authorization. The College Creek Broadcasting, LLC, coordinates for Channel 297C2 at reference coordinates for Channel 283A permittee of FM Station KHUN, Channel Shelley are 43–02–00 NL and 111–55– at Ashton are 43–58–32 NL and 111–34– 296C2, Huntington, Utah, FM Station 34 WL, located 41.8 kilometers (26 40 WL. This site is located 14.9 KRID, Channel 243C2, Ashton, Idaho, miles) south of Shelley. To facilitate the kilometers (9.3 miles) southwest of FM Station KKWY, Channel 293C, Shelley reallotment, we are substituting Ashton. To accommodate Channel Superior, Wyoming, and Station Channel 300C1 for Channel 296C1 at 286C3 at Thayne, we are substituting KTYN(FM), Channel 290C1, Thayne, Idaho Falls, Idaho, and modifying the Channel 288C for Channel 287C2 at Wyoming requests the allotment of Station KEQO(FM) license. The Diamondville, Wyoming, reallotting Channel 285C at Milford, Utah, as its reference coordinates for Channel 300C1 Channel 288C from Diamondville, first local service and a first aural at Idaho Falls are 43–46–04 NL and Wyoming to Oakley, Utah, as the reception service to 197 persons. The 111–57–57 WL, located 33.9 kilometers community’s second local service, and reference coordinates for Channel 285C (21.1 miles) north of Idaho Falls. In modifying the Station KDWY(FM) at Milford are 38–31–11 NL and 113– order to allot Channel 296C to license. The reference coordinates for 17–07 WL. This site is located 27.6 Woodruff, we are substituting Channel Channel 288C at Oakley are 40–52–16 kilometers (17.2 miles) northwest of 297C2 for Channel 296C2 at Huntington, NL and 110–59–43 WL. This site is Milford. To accommodate this vacant Utah, and modifying the Station KHUN located 31 kilometers (19.3 miles) allotment, we are reallotting Channel authorization, which in turn requires northeast of Oakley. To prevent removal 286C from Manti to American Fork, reallotting Channel 298C from Orem to of Diamondville’s sole local service, we Utah, as the community’s first local Kaysville, Utah, as the community’s first are substituting Channel 223C1 for service, and modifying the Station local service, and modifying the Station Channel 223C3 at Naples, Utah, KNJQ(FM) license. The reference KKAT–FM license. The reference reallotting Channel 223C1 from Naples, coordinates for Channel 286C at coordinates for Channel 297C2 at Utah, to Diamondville, Wyoming and American Fork are 40–39–34 NL and Huntington are 39–10–41 NL and 111– modifying the Station KCUA(FM) 112–12–05 WL. This site is located 46.6 01–22 WL. This site is located 17.3 license. The reference coordinates for kilometers (28.9 miles) northwest of kilometers (10.7 miles) south of Channel 223C1 at Diamondville are 41– American Fork. This reallotment Huntington. The reference coordinates 54–14 NL and 110–31–06 WL, located requires the substitution of Channel for Channel 298C at Kaysville are 40– 13.9 kilometers (8.6 miles) north of 290C for Channel 289C at Centerville, 39–34 NL and 112–12–05 WL. This site Diamondville. To prevent removal of Utah and modification of the Station is located 47.3 kilometers (29.4 miles) Naples’ sole local service, we are KXRV(FM) license. The reference southwest of Kaysville. To substituting Channel 255C2 for Channel coordinates for Channel 290C at accommodate the Kaysville reallotment, 253C2 at Roosevelt, Utah, reallotting Centerville are 40–39–34 NL and 112– we are reallotting Channel 300C from Channel 255C2 from Roosevelt, to 12–05 WL. This site is located 40 Roy to Randolph, Utah, as the Naples, Utah and modifying the Station kilometers (24.9 miles) southwest of community’s second local service and KIFX(FM) license. The reference

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coordinates of Channel 255C2 at Naples Channel 263C1 at Idaho Falls are 43– KRAR(FM); Channel 297C2 in lieu of are 40–33–24 NL and 109–38–08 WL, 21–06 NL and 12–00–22 WL. The site is Channel 296C2 at Huntington, Utah for located 18.5 kilometers (11.5 miles) located 13 kilometers (8.1 miles) south Station KHUN; Channel 298C at northwest of Naples. To accommodate of Idaho Falls. Moreover, to facilitate the Kaysville, Utah in lieu of Orem, Utah for the Naples reallotment, we are Channel 232C1 substitution at Rexburg, Station KKAT–FM; Channel 300C at substituting Channel 268C3 for vacant we substituted Channel 233C0 for Randolph, Utah in lieu of Roy, Utah for Channel 255C3 at Fruita, Colorado. The Channel 233C at Logan, Utah, and Station KUDD(FM); Channel 286C3 in reference coordinates for Channel 268C3 modified the Station KVFX(FM) license lieu of Channel 290C3 at Thayne, at Fruita are 39–06–52 NL and 108–51– and substituted Channel 256C2 for Wyoming for Station KTYN(FM); 09 WL. To accommodate the Channel 232C2 at Rexburg, Idaho and Channel 283A in lieu of Channel 243C2 Diamondville reallotment, we are modified the Station KSNA(FM) license. at Ashton, Idaho for Station KRID; substituting Channel 223A for Channel The reference coordinates for Channel Channel 288C at Oakley, Utah in lieu of 223C2 at South Jordan, Utah, and 233C0 at Logan are 41–53–50 NL and Channel 287C2 at Diamondville, modifying the Station KUUU(FM) 111–57–39 WL. The site is located 20.8 Wyoming for Station KDWY(FM); license. The reference coordinates of kilometers (12.9 miles) northwest of Channel 292C in lieu of Channel 291C Channel 223A at South Jordan are 40– Logan. The reference coordinates for at Evanston, Wyoming for Station 27–11 NL and 111–56–36 WL, located Channel 256C2 at Rexburg are 43–45–20 KBMG(FM); Channel 298C1 in lieu of 12.2 kilometers (7.6 miles) south of NL and 111–57–56 WL. The site is Channel 293C1 at Superior, Wyoming South Jordan. To facilitate Channel located 16.2 kilometers (10.1 miles) for Station KKWY; Channel 232C1 in 290C to Centerville, we are substituting southwest of Rexburg. lieu of Channel 263C1 at Rexburg, Idaho Channel 292C for Channel 291C at The Media Bureau’s Consolidated for Station KBYI license; Channel 263C1 Evanston, Wyoming, and modifying the Data Base System will reflect the in lieu of Channel 256C1 at Idaho Falls, Station KBMG(FM) license, which in following FM Channel as the reserved Idaho for Station KUPI–FM license; turn requires substituting Channel assignment for the listed stations, Channel 256C2 in lieu of Channel 298C1 for Channel 293C1 at Superior, respectively: Channel 252C in lieu of 232C2 at Rexburg, Idaho for Station Wyoming, and modifying of the Station Channel 252C2 at Evanston, Wyoming KSNA(FM) license; and Channel 233C0 KKWY authorization. The reference for Station KADQ–FM; Channel 237C3 in lieu of Channel 233C at Logan, Utah coordinates for Channel 292C at in lieu of Channel 252C3 at Price, Utah for Station KVFX(FM). Evanston are 40–52–16 NL and 110–59– for Station KARB(FM); Channel 233C3 List of Subjects in 47 CFR Part 73 43 WL, located 44.2 kilometers (27.5 in lieu of Channel 237C3 at Wellington, miles) south of Evanston. The reference Utah for FM Station KRPX; Channel Radio, Radio broadcasting. coordinates for Channel 298C1 at 240C0 at Randolph, Utah in lieu of Superior are 41–25–32 NL and 109–07– Channel 240C1 at Delta, Utah for Station I As stated in the preamble, the Federal 42 WL, located 40.5 kilometers (25.1 KMGR(FM); Channel 260C3 in lieu of Communications Commission amends miles) south of Superior. Channel 240A at Weston, Idaho for 47 CFR part 73 as follows: The third counterproposal filed Station KLZX(FM); Channel 228C in jointly by Sand Hill Media Corporation, lieu of Channel 260C at Burley, Idaho PART 73—RADIO BROADCAST licensee of Station KADQ–FM, Channel for Station KZDX(FM); Channel 230C in SERVICES 232C2, Rexburg, Idaho and Sandhill lieu of Channel 229C at Pocatello, Idaho I 1. The authority citation for part 73 Media Group, LLC, license of Station for Station KZBQ(FM); Channel 261C3 continues to read as follows: KUPI–FM, Channel 256C1, Idaho Falls, at Wilson, Wyoming in lieu of Channel Idaho, requested Channel 262C2 at 261C2 at Soda Spring, Idaho for Station Authority: 47 U.S.C. 154, 303, 334, 336. Lima, Montana, as the community first KITT(FM); Channel 297C2 at Shelley, local service. However, we allotted Idaho in lieu of Kemmerer, Wyoming for § 73.202 [Amended] alternate Channel 265C2 at Lima, Station KAOX(FM); Channel 300C1 in I 2. Section 73.202(b), the Table of FM Montana, as its first local service to lieu of Channel 296C1 at Idaho Falls for Allotments under Colorado, is amended avoid the ultimate permittee of this Station KEQO(FM); Channel 223C1 at by removing Channel 255C3 and adding vacant allotment to reimburse Brigham Diamondville, Wyoming in lieu of Channel 268C3 at Fruita. Young University for its reasonable Channel 223C3 at Naples, Utah for expenses associated with changing Station KCUA(FM); Channel 223A in I 3. Section 73.202(b), the Table of FM Station KBYI’s frequency to Channel lieu of Channel 223C2 at South Jordan, Allotments under Idaho, is amended by 232C1 at Rexburg. The reference Utah for Station KUUU(FM); Channel adding Dubois, Channel 243A. coordinates for Channel 265C2 at Lima 255C2 at Naples in lieu of Channel are 44–42–58 NL and 112–40–40 WL. 253C2 at Roosevelt, Utah for Station I 4. Section 73.202(b), the Table of FM This site is located 11.2 kilometers (6.9 KIFX(FM); Channel 239C3 at Ballard, Allotments under Montana, is amended miles) northwest of Lima. Additionally, Utah in lieu of Channel 239C1 at by adding Lima, Channel 265C2. we substituted Channel 232C1 for Marbleton, Wyoming for Station Channel 263C1 at Rexburg, Idaho and KFMR(FM); Channel 286C at American I 5. Section 73.202(b), the Table of FM modifying the Station KBYI license to Fork, Utah in lieu of Manti, Utah for Allotments under Utah is amended by accommodate the substitution of Station KNJQ(FM); Channel 290C in lieu adding Milford, Channel 285C; and Channel 263C1 for Channel 256C1 at of Channel 289C at Centerville, Utah for removing Channel 233C and adding Idaho Falls, Idaho and modification of Station KXRV(FM); Channel 245C2 in Channel 239C at Salina. the FM Station KUPI license. The lieu of Channel 290A at Vernal, Utah for reference coordinates for Channel 232C1 Station KLCY–FM; Channel 294C in lieu I 6. Section 73.202(b), the Table of FM at Rexburg are 43–45–44 NL and 111– of Channel 293C at Spanish Fork, Utah Allotments under Wyoming, is amended 57–30 WL. The site is located 15.4 for Station KOSY–FM; Channel 296C at by adding Marbleton, Channel 257C1 kilometers (9.6 miles) southwest of Woodruff, Utah in lieu of Channel 295C and removing Channel 273C and adding Rexburg. The reference coordinates for at Brigham City, Utah for Station Channel 259C at Meeteetse.

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Federal Communications Commission. SUPPLEMENTARY INFORMATION: able, through training or experience, to John A. Karousos, identify a right whale. Such individuals Electronic Access Assistant Chief, Audio Division, Media include, but are not limited to, NMFS Bureau. Several of the background documents staff, U.S. Coast Guard and Navy [FR Doc. E8–2458 Filed 2–8–08; 8:45 am] for the ALWTRP and the take reduction personnel trained in whale planning process can be downloaded BILLING CODE 6712–01–P identification, scientific research survey from the ALWTRP web site at http:// personnel, whale watch operators and www.nero.noaa.gov/whaletrp/. naturalists, and mariners trained in DEPARTMENT OF COMMERCE Background whale species identification through disentanglement training or some other The ALWTRP was developed National Oceanic and Atmospheric training program deemed adequate by pursuant to section 118 of the Marine Administration NMFS. A reliable report would be a Mammal Protection Act (MMPA) to credible right whale sighting. reduce the incidental mortality and 50 CFR Part 229 On January 13, 2008, an aerial survey serious injury of three endangered reported two aggregations of right [Docket No. 080117051–8123–02] species of whales (right, fin, and whales, totaling seven individuals: four humpback) due to incidental interaction ° ′ RIN 0648–XF17 whales in the proximity of 42 37 N. with commercial fishing activities. In latitude and 70° 01′ W. longitude, and Taking of Marine Mammals Incidental addition, the measures identified in the three whales in the proximity of 42° 51′ to Commercial Fishing Operations; ALWTRP would provide conservation N. latitude and 70° 04′ W. longitude. Atlantic Large Whale Take Reduction benefits to a fourth species (minke), These positions lie northeast of Boston, Plan which are neither listed as endangered Massachusetts, and southeast of nor threatened under the Endangered Portsmouth, New Hampshire, AGENCY: National Marine Fisheries Species Act (ESA). The ALWTRP, respectively. After conducting an Service (NMFS), National Oceanic and implemented through regulations investigation, NMFS ascertained that Atmospheric Administration (NOAA), codified at 50 CFR 229.32, relies on a the report came from a qualified Commerce. combination of fishing gear individual and determined that the ACTION: Temporary rule; extension of modifications and time/area closures to report was reliable. Thus, NMFS has temporary area and gear restrictions. reduce the risk of whales becoming received a reliable report from a entangled in commercial fishing gear qualified individual of the requisite SUMMARY: The Assistant Administrator (and potentially suffering serious injury right whale density to trigger the DAM for Fisheries (AA), NOAA, announces or mortality as a result). provisions of the ALWTRP. temporary restrictions consistent with On January 9, 2002, NMFS published Once a DAM zone is triggered, NMFS the requirements of the Atlantic Large the final rule to implement the determines whether to impose Whale Take Reduction Plan’s ALWTRP’s DAM program (67 FR 1133). restrictions on fishing and/or fishing (ALWTRP) implementing regulations. On August 26, 2003, NMFS amended gear in the zone. This determination is These regulations will continue to apply the regulations by publishing a final based on the following factors, to lobster trap/pot and anchored gillnet rule, which specifically identified gear including but not limited to: the fishermen in an area totaling modifications that may be allowed in a location of the DAM zone with respect approximately 1,767 nm2 (6,061 km2), DAM zone (68 FR 51195). The DAM to other fishery closure areas, weather northeast of Boston, MA, for an program provides specific authority for conditions as they relate to the safety of additional 15 days. The purpose of this NMFS to restrict temporarily on an human life at sea, the type and amount action is to provide protection to an expedited basis the use of lobster trap/ of gear already present in the area, and aggregation of northern right whales pot and anchored gillnet fishing gear in a review of recent right whale (right whales). areas north of 40° N. lat. to protect right entanglement and mortality data. DATES: The area and gear restrictions whales. Under the DAM program, NMFS reviewed the options and were initially effective 0001 hours NMFS may: (1) require the removal of factors noted above and on January 24, January 26, 2008, through 2400 hours all lobster trap/pot and anchored gillnet 2008, published a temporary rule in the February 9, 2008. This notice extends fishing gear for a 15–day period; (2) Federal Register (73 FR 4118) to the restricted period from 0001 hours allow lobster trap/pot and anchored announce the establishment of a DAM February 10, 2008, through 2400 hours gillnet fishing within a DAM zone with zone with restrictions on anchored February 24, 2008. gear modifications determined by NMFS gillnet and lobster trap gear for a 15–day to sufficiently reduce the risk of period. On February 4, 2008, a ADDRESSES: Copies of the proposed and entanglement; and/or (3) issue an alert subsequent survey conducted over the final Dynamic Area Management (DAM) to fishermen requesting the voluntary DAM zone indicated that four whales rules, Environmental Assessments removal of all lobster trap/pot and were still present in the area northeast (EAs), Atlantic Large Whale Take anchored gillnet gear for a 15–day of Boston, MA, and the DAM zone Reduction Team (ALWTRT) meeting period and asking fishermen not to set trigger of 0.04 right whales per square summaries, and progress reports on any additional gear in the DAM zone nm (3.43 km2) continues to be met in implementation of the ALWTRP may during the 15–day period. this portion of the original DAM zone. also be obtained by writing Diane A DAM zone is triggered when NMFS Therefore, in order to further protect the Borggaard, NMFS/Northeast Region, receives a reliable report from a right whales in this DAM zone, One Blackburn Drive, Gloucester, MA qualified individual of three or more pursuant to 50 CFR 229.32(g)(3)(v), 01930. right whales sighted within an area (75 NMFS is exercising its authority to FOR FURTHER INFORMATION CONTACT: nm2 (257 km2)) such that right whale extend the restrictions on lobster trap Diane Borggaard, NMFS/Northeast density is equal to or greater than 0.04 and anchored gillnet gear for an Region, 978–281–9300 x6503; or Kristy right whales per nm2 (3.43 km2). A additional 15 day period. Long, NMFS, Office of Protected qualified individual is an individual The extended DAM Zone is bound by Resources, 301–713–2322. ascertained by NMFS to be reasonably the following coordinates:

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42° 56′ N., 69° 33′ W. (NW Corner) Anchored Gillnet Gear Environmental Assessments for the ° ′ ° ′ 42 16 N., 69 33 W. Fishermen utilizing anchored gillnet DAM program were prepared on 42° 16′ N., 70° 33′ W. gear within the portions of Other December 28, 2001, and August 6, 2003. 42° 56′ N., 70° 33′ W. Northeast Gillnet Waters and the This action falls within the scope of the 42° 56′ N., 69° 33′ W. (NW Corner) analyses of these EAs, which are In addition to those gear Stellwagen Bank/Jeffrey’s Ledge Restricted Area that overlap with the available from the agency upon request. modifications currently implemented NMFS provided prior notice and an DAM zone are required to utilize all the under the ALWTRP at 50 CFR 229.32, opportunity for public comment on the following gear modifications while the the following gear modifications are regulations establishing the criteria and required in the extended DAM zone. If DAM zone is in effect: procedures for implementing a DAM the requirements and exceptions for 1. Groundlines must be made of either zone. Providing prior notice and gear modification in the extended DAM sinking or neutrally buoyant line. opportunity for comment on this action, zone, as described below, differ from Floating groundlines are prohibited; pursuant to those regulations, would be other ALWTRP requirements for any 2. All buoy lines must be made of impracticable because it would prevent overlapping areas and times, then the either sinking or neutrally buoyant line, NMFS from executing its functions to more restrictive requirements will apply except the bottom portion of the line, protect and reduce serious injury and in the DAM zone. Special note for which may be a section of floating line mortality of endangered right whales. gillnet fisherman: a portion of the not to exceed one-third the overall The regulations establishing the DAM extended DAM zone overlaps the year- length of the buoy line; program are designed to enable the round Western Gulf of Maine Closure 3. Fishermen are allowed to use two agency to help protect unexpected Area found at 50 CFR 648.81(e). Due to buoy lines per string; concentrations of right whales. In order this closure, sink gillnet gear is 4. The breaking strength of each net to meet the goals of the DAM program, prohibited from this portion of the DAM panel weak link must not exceed 1,100 the agency needs to be able to create a zone. lb (498.8 kg). The weak link DAM zone and implement restrictions requirements apply to all variations in on fishing gear as soon as possible once Lobster Trap/pot Gear net panel size. One weak link must be the criteria are triggered and NMFS Fishermen utilizing lobster trap/pot placed in the center of the floatline and determines that a DAM restricted zone gear within the portions of Northern one weak link must be placed in the is appropriate. If NMFS were to provide Nearshore Lobster Waters, Northern center of each of the up and down lines prior notice and an opportunity for Inshore State Lobster Waters, and the at both ends of the net panel. public comment upon the creation of a Stellwagen Bank/Jeffrey’s Ledge Additionally, one weak link must be DAM restricted zone, the aggregated Restricted Area that overlap with the placed as close as possible to each end right whales would be vulnerable to DAM zone are required to utilize all of of the net panels on the floatline; or, one entanglement which could result in the following gear modifications while weak link must be placed between serious injury and mortality. the DAM zone is in effect: floatline tie-loops between net panels Additionally, the right whales would 1. Groundlines must be made of either and one weak link must be placed most likely move on to another location sinking or neutrally buoyant line. where the floatline tie-loops attach to before NMFS could implement the Floating groundlines are prohibited; the bridle, buoy line, or groundline at restrictions designed to protect them, 2. All buoy lines must be made of each end of a net string; thereby rendering the action obsolete. either sinking or neutrally buoyant line, 5. A weak link with a maximum Therefore, pursuant to 5 U.S.C. except the bottom portion of the line, breaking strength of 1,100 lb (498.8 kg) 553(b)(B), the AA finds that good cause which may be a section of floating line must be placed at all buoys; and exists to waive prior notice and an not to exceed one-third the overall 6. All anchored gillnets, regardless of opportunity to comment on this action length of the buoy line; the number of net panels, must be to implement a DAM restricted zone to 3. Fishermen are allowed to use two securely anchored with the holding reduce the risk of entanglement of buoy lines per trawl; and power of at least a 22 lb (10.0 kg) endangered right whales in commercial 4. A weak link with a maximum Danforth-style anchor at each end of the lobster trap/pot and anchored gillnet breaking strength of 600 lb (272.4 kg) net string. gear as such procedures would be must be placed at all buoys. The restrictions will be in effect impracticable. Fishermen utilizing lobster trap/pot beginning at 0001 hours February 10, For the same reasons, the AA finds gear within the portion of the Offshore 2008, through 2400 hours February 24, that, under 5 U.S.C. 553(d)(3), good Lobster Waters Area that overlap with 2008, unless terminated sooner or cause exists to waive the 30–day delay the DAM zone are required to utilize all extended by NMFS through another in effective date. If NMFS were to delay of the following gear modifications notification in the Federal Register. for 30 days the effective date of this while the DAM zone is in effect: The restrictions will be announced to action, the aggregated right whales 1. Groundlines must be made of either state officials, fishermen, ALWTRT would be vulnerable to entanglement, sinking or neutrally buoyant line. members, and other interested parties which could cause serious injury and Floating groundlines are prohibited; through e-mail, phone contact, NOAA mortality. Additionally, right whales 2. All buoy lines must be made of website, and other appropriate media would likely move to another location either sinking or neutrally buoyant line, immediately upon issuance of the rule between the time NMFS approved the except the bottom portion of the line, by the AA. action creating the DAM restricted zone which may be a section of floating line and the time it went into effect, thereby Classification not to exceed one-third the overall rendering the action obsolete and length of the buoy line; In accordance with section 118(f)(9) of ineffective. Nevertheless, NMFS 3. Fishermen are allowed to use two the MMPA, the Assistant Administrator recognizes the need for fishermen to buoy lines per trawl; and (AA) for Fisheries has determined that have time to either modify or remove (if 4. A weak link with a maximum this action is necessary to implement a not in compliance with the required breaking strength of 1,500 lb (680.4 kg) take reduction plan to protect North restrictions) their gear from a DAM zone must be placed at all buoys. Atlantic right whales. once one is approved. Thus, NMFS

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makes this action effective 2 days after DEPARTMENT OF COMMERCE (Magnuson-Stevens Act) by regulations the date of publication of this document at 50 CFR part 622. In accordance with in the Federal Register. NMFS will also National Oceanic and Atmospheric the framework procedures of the FMP, endeavor to provide notice of this action Administration the South Atlantic Fishery Management to fishermen through other means upon Council (Council) recommended and issuance of the rule by the AA, thereby 50 CFR Part 622 the Regional Administrator, Southeast providing approximately 3 additional [Docket No. 070709302–8019–02] Region, NMFS approved, a regulatory days of notice while the Office of the change relating to Atlantic migratory RIN 0648–AV17 Federal Register processes the group Spanish mackerel. The change is document for publication. within the scope of the management Fisheries of the Caribbean, Gulf of measures that may be adjusted under NMFS determined that the regulations Mexico, and South Atlantic; Coastal the framework procedure, as specified establishing the DAM program and Migratory Pelagic Resources of the in 50 CFR 622.48(c). actions such as this one taken pursuant Gulf of Mexico and South Atlantic; On January 3, 2008, NMFS published to those regulations are consistent to the Atlantic Group Spanish Mackerel a proposed rule to change the start date maximum extent practicable with the Commercial Trip Limit in the Southern of the commercial trip limit for Atlantic enforceable policies of the approved Zone; Change in Start Date migratory group Spanish mackerel and coastal management program of the U.S. AGENCY: National Marine Fisheries requested public comment (73 FR 439). Atlantic coastal states. This Service (NMFS), National Oceanic and Two public comments were received on determination was submitted for review Atmospheric Administration (NOAA), the proposed rule. Both comments were by the responsible state agencies under Commerce. in favor of the proposed regulatory action, therefore no changes were made section 307 of the Coastal Zone ACTION: Final rule. Management Act. Following state in the final rule as a result of such review of the regulations creating the SUMMARY: In accordance with the comments. The rationale for this measure is contained in the Council’s DAM program, no state disagreed with framework procedure for adjusting framework action and in the preamble NMFS’ conclusion that the DAM management measures of the Fishery Management Plan for the Coastal to the proposed rule and is not repeated program is consistent to the maximum here. extent practicable with the enforceable Migratory Pelagic Resources of the Gulf policies of the approved coastal of Mexico and South Atlantic (FMP), Classification NMFS changes the start date of the management program for that state. The Administrator, Southeast Region, commercial trip limit for Atlantic NMFS, determined that this regulatory The DAM program under which migratory group Spanish mackerel in change is consistent with the Council’s NMFS is taking this action contains the southern zone to March 1. The framework action and is necessary for policies with federalism implications intended effect of this final rule is to the conservation and management of the warranting preparation of a federalism conform the trip limit to the beginning Coastal Migratory Pelagic Resources of assessment under Executive Order of the fishing year for Atlantic migratory the Gulf of Mexico and South Atlantic 13132. Accordingly, in October 2001 group Spanish mackerel. and March 2003, the Assistant Secretary and is consistent with the Magnuson- DATES: This final rule is effective March Stevens Act and other applicable laws. for Intergovernmental and Legislative 12, 2008. This final rule has been determined to Affairs, Department of Commerce, ADDRESSES: Copies of the final be not significant for purposes of E.O. provided notice of the DAM program regulatory flexibility analysis (FRFA) 12866. and its amendments to the appropriate and the South Atlantic Fishery A FRFA was prepared for this action. elected officials in states to be affected Management Council’s framework The FRFA incorporates the initial by actions taken pursuant to the DAM procedure for adjustment of the start regulatory flexibility analysis (IRFA), a program. Federalism issues raised by date of the commercial trip limit for summary of significant economic issues state officials were addressed in the Atlantic migratory group Spanish raised by public comments, NMFS final rules implementing the DAM mackerel in the southern zone and responses to those comments, and a program. A copy of the federalism related matters may be obtained from summary of the analyses completed to Summary Impact Statement for the final the South Atlantic Fishery Management support the action. A copy of the full rules is available upon request Council, 4055 Faber Place, Suite 201, analysis is available from the Council (ADDRESSES). North Charleston, SC 29405; phone: (see ADDRESSES). A summary of the The rule implementing the DAM 843–571–4366, toll free 866–SAFMC– analysis follows. This rule will change the start date for program has been determined to be not 10; fax: 843–769–4520; e-mail: [email protected]. the 3,500–lb (1,588–kg) trip limit in the significant under Executive Order southern zone for Atlantic migratory FOR FURTHER INFORMATION CONTACT: 12866. group Spanish mackerel to March 1. The Susan Gerhart, telephone: 727–824– Authority: 16 U.S.C. 1361 et seq. and 50 purpose of this action is to correct an 5305, fax: 727–824–5308, e-mail: CFR 229.32(g)(3) unintended inconsistency created by [email protected]. Dated: February 5, 2008. Amendment 15 to the FMP, effective SUPPLEMENTARY INFORMATION: The August 8, 2005 (70 FR 39187, July 5, Samuel D. Rauch III, fisheries for coastal migratory pelagic 2005), which redefined the fishing year Deputy Assistant Administrator for resources are regulated under the FMP. for Atlantic migratory group king Regulatory Programs, National Marine The FMP was prepared jointly by the mackerel and Spanish mackerel from Fisheries Service. Gulf of Mexico and South Atlantic April-March to March-February, but did [FR Doc. 08–597 Filed 2–6–08; 2:07 pm] Fishery Management Councils and is not specify the Spanish mackerel trip BILLING CODE 3510–22–S implemented under the authority of the limit for March. Magnuson-Stevens Fishery No comments were received on the Conservation and Management Act IRFA or on the economic impacts of the

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proposed rule. Therefore, no changes fishing year. The trip limit elsewhere annual receipts not in excess of $4.0 were made in the final rule as a result (Georgia through New York) remains at million (NAICS code 114111, finfish of such comments. 3,500 lb (1,588 kg) all year. During the fishing) for all affiliated operations This rule is expected to affect all past decade, the Florida east coast has worldwide. Based on the annual federally permitted commercial vessels accounted for more than 70 percent of averages and maximums for estimated that harvest Atlantic migratory group the fishery’s landings. gross revenue per vessel provided Spanish mackerel off the Florida east Very few logbook-reported trips in the above, it is determined that, for coast. As of January 2006, 1,333 vessels fishery as a whole have reached 3,500 purposes of this analysis, all entities possessed Federal commercial Spanish lb (1,588 kg), usually less than 1 percent that would be affected by this rule are mackerel permits. However, only 532 of of all trips each year since the 1998– small business entities. these vessels had homeports on the 1999 fishing season. The average harvest No direct or indirect adverse Atlantic coast (Maine through Miami- of Atlantic migratory group Spanish economic effects on any affected entities Dade County, Florida), of which 300 mackerel per trip has been have been identified or are expected to vessels had homeports on the Florida approximately 500–700 lb (227–318 kg), occur as a result of this rule. Although east coast, and only 312 vessels reported and the median harvest, approximately the current inconsistency between the landings of Atlantic migratory group 100–300 lb (45–136 kg). Over this start of the Atlantic migratory group Spanish mackerel in the required period, Atlantic migratory group Spanish mackerel fishing year and the Federal logbook system for the 2005– Spanish mackerel accounted for on specification of the commercial trip 2006 fishing year. Additional vessels average approximately 60–72 percent of limit created the opportunity for may fish exclusively within state the estimated trip gross revenue from all increased harvests in March, available waters, where neither a Federal permit species harvested. data do not indicate this has altered nor logbook reporting is required. While Gear use in the fishery has changed fishing behavior such that it would be these vessels would not directly be since the mid–1990s. Prior to the mid– adversely impacted by the subject to this rule, the State of Florida’s 1990s, gillnets were the leading gear in establishment of a 3,500–lb (1,588–kg) commercial trip limits for Spanish the fishery. Since the implementation of trip limit. Further, even if this rule were mackerel have, to date, been adjusted to Federal regulations that limit the use of to result in reduction in harvest and mirror those for adjacent Federal waters. gillnets in Federal waters in 1994 and revenues from Spanish mackerel for Although the total number of vessels the prohibition of the use of gillnets in some entities, the intent of the action is that operate in the Atlantic migratory Florida state waters in 1995, fishermen to enable larger harvests of Spanish group Spanish mackerel fishery, as well have adjusted their fishing practices, mackerel in the months prior to March, as their production characteristics, and cast nets have become the when harvests of other species, notably varies from year to year, data on the 312 predominant gear on the Florida east snapper-grouper species, are vessels that reported landings of this coast. Hand lines have challenged constrained due to recent regulatory species in the 2005–2006 fishing year gillnets for second place. change. Allowing unlimited trip limits were used to determine average revenue Little data are available since the start for Spanish mackerel at the start of the characteristics for this fishery. Most of of the fishing year was changed to season increases the likelihood of quota- the vessels that operate in the Spanish March 1. While the inconsistency triggered lower limits at the end of the mackerel fishery have permits for and between the fishing year and trip limits fishing year, leading to reduced participate in king mackerel, snapper- created the opportunity for unlimited alternative fishing opportunities and grouper, and other commercial fisheries. harvests in March, to date, the fishery lower profits for fishermen subject to During the 2005–2006 fishing season, has not responded with increased reduced harvest opportunities in the these vessels harvested, on average, harvests relative to previous years, with snapper-grouper fishery. To the extent 5,391 lb (2,445 kg) of Atlantic group March harvests in 2006 and 2007 being that access to Spanish mackerel at the Spanish mackerel. This accounted for less than those of either 2004 or 2005. end of the fishing year is improved by 24 percent, approximately $5,300 (2006 Some fleet activity may exist in the limiting harvest in March, this rule dollars), of the estimated average annual commercial fishery for Atlantic would, therefore, be expected to result gross revenue, approximately $22,200 migratory group Spanish mackerel, but in increased total harvest opportunities (2006 dollars), from all logbook-reported the extent of such activity is unknown. and net benefits (profits) to the landings. The annual vessel maximum Additional permits, both state and participants in these fisheries. These estimated gross revenue from all species Federal, and associated revenues may be increased benefits, however, cannot be harvested by vessels operating in the linked to an entity through affiliation quantified with available data. Spanish mackerel fishery ranged from rules, but such affiliation links cannot This rule will not alter existing approximately $182,000 to $342,000 be made using existing data. Therefore, reporting, record-keeping, or permitting (2006 dollars) for the fishing years all vessels operating in the Atlantic requirements. 2001–2002 through 2005–2006. migratory group Spanish mackerel One alternative to this action, the The Atlantic migratory group Spanish fishery are assumed to represent status quo, was considered. The status mackerel fishery has been managed via independent entities for the purpose of quo would not establish a trip limit for staged trip limits since November 1992 this analysis. the Florida east coast in March and for Florida’s east coast, starting with a The Small Business Administration would not, therefore, achieve the 3,500–lb (1,588–kg) trip limit from April (SBA) has established size criteria for all Council’s objective. No other through November. There is an major industry sectors in the U.S. alternatives to this action were unlimited weekday limit and a 1,500–lb including fish harvesters, for-hire considered because no other start date (680–kg) weekend limit from December operations, fish processors, and fish for the trip limit would be reasonable 1 until 75 percent of the adjusted quota dealers. A business involved in fish other than the beginning of the fishing is harvested. This is followed by a harvesting is classified as a small year, March 1. To start the trip limit on 1,500–lb (680–kg) trip limit on all days business if it is independently owned any other day in March would continue until 100 percent of the adjusted quota and operated, is not dominant in its to allow unlimited harvest of the species is harvested, and a 500–lb (227–kg) trip field of operation (including its on those days and continue to increase limit thereafter until the end of the affiliates), and has combined average the possibility of an early closure with

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associated economic disruptions. Dated: February 6, 2008. Authority: 16 U.S.C. 1801 et seq. Current rules already establish trip Samuel D. Rauch III, I 2. In § 622.44, paragraph (b)(1)(ii)(A) limits for April 1 to the end of February, Deputy Assistant Administrator For is revised to read as follows: so this amendment only applies to RegulatoryPrograms, National Marine § 622.44 Commercial trip limits. March. Fisheries Service. * * * * * I List of Subjects in 50 CFR Part 622 For the reasons set out in the (b) * * * preamble, 50 CFR part 622 is amended (1) * * * Fisheries, Fishing, Puerto Rico, as follows: (ii) * * * Reporting and recordkeeping (A) From March 1 through November requirements, Virgin Islands. PART 622—FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH 30, in amounts exceeding 3,500 lb ATLANTIC (1,588 kg). * * * * * I 1. The authority citation for part 622 [FR Doc. E8–2485 Filed 2–8–08; 8:45 am] continues to read as follows: BILLING CODE 3510–22–S

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Proposed Rules Federal Register Vol. 73, No. 28

Monday, February 11, 2008

This section of the FEDERAL REGISTER Independence Avenue, SW., 2008 by natural spread along the Gulf contains notices to the public of the proposed Washington, DC. Normal reading room Coast. issuance of rules and regulations. The hours are 8 a.m. to 4:30 p.m., Monday The Southwestern United States and purpose of these notices is to give interested through Friday, except holidays. To be Mexico are home to 114 native species persons an opportunity to participate in the sure someone is there to help you, of Opuntia, which are highly valued for rule making prior to the adoption of the final rules. please call (202) 690–2817 before their ecological and agricultural uses. coming. The rooting characteristics of Opuntia Other Information: Additional spp. reduce wind and rain erosion, DEPARTMENT OF AGRICULTURE information about APHIS and its encouraging the growth of other plants programs is available on the Internet at in degraded areas. In addition, many Animal and Plant Health Inspection http://www.aphis.usda.gov. species of birds, mammals, reptiles, and Service insects eat, nest in, or otherwise rely on FOR FURTHER INFORMATION CONTACT: Mr. Opuntia spp. for survival. Opuntia spp. Joel Floyd, Planning and Preparedness 7 CFR Part 301 are also important sources of food, Team Leader, Emergency and Domestic medicine, cosmetics, and dye. In [Docket No. APHIS–2006–0153] Programs, PPQ, APHIS, 4700 River Road Mexico, Opuntia spp. are an important Unit 137, Riverdale, MD 20737–1236; agricultural commodity, and it is RIN 0579–AC25 (301) 734–4396. estimated that 2 percent of the value South American Cactus Moth; SUPPLEMENTARY INFORMATION: and production of Mexico’s agriculture Quarantine and Regulations Background comes from them. In the Southwestern United States, Opuntia spp. are only a AGENCY: Animal and Plant Health The South American cactus moth minor agricultural crop, but are popular Inspection Service, USDA. (Cactoblastis cactorum) is a grayish- plants in the landscaping and ACTION: Proposed rule. brown moth with a wingspan of 22 to ornamental nursery industries. Opuntia 35 millimeters (approximately 0.86 to SUMMARY: We are proposing to amend spp. can also be an important source of 1.4 inches) that is indigenous to the domestic quarantine regulations to emergency forage for cattle grazing Argentina, southern Brazil, Paraguay, establish regulations to restrict the during drought periods. If the South and Uruguay. It is a serious quarantine interstate movement of South American American cactus moth were to spread to pest of Opuntia spp., and an occasional cactus moth host material, including these areas, there would be significant pest of Nopalea spp., Cylindropuntia nursery stock and plant parts for ecological and economic damage. spp., and Consolea spp., four closely consumption, from infested areas of the Currently, cactus plants or parts related genera of the family Cactaceae. United States. This action would help thereof moving from Hawaii, Puerto After an incubation period following prevent the artificial spread of South Rico, or the U.S. Virgin Islands into the mating, the female South American American cactus moth into noninfested continental United States are prohibited cactus moth deposits an egg stick areas of the United States. or restricted under 7 CFR part 318 in resembling a cactus spine on the host order to prevent the dissemination of DATES: We will consider all comments plant. The egg stick, which consists of South American cactus moth. With that we receive on or before April 11, 70 to 90 eggs, hatches in 25 to 30 days limited exceptions, all plants, including 2008. and the larvae bore into the cactus pad cacti, imported into the United States ADDRESSES: You may submit comments to feed, eventually hollowing it out and for propagation from foreign countries by either of the following methods: killing the plant. Within a short period are required to be accompanied by a Federal eRulemaking Portal: Go to of time, the South American cactus phytosanitary certificate and to be http://www.regulations.gov/fdmspublic/ moth can destroy whole stands of inspected at an Animal and Plant Health component/main?main=DocketDetail& cactus. Inspection Service (APHIS), United d=APHIS-2006-0153 to submit or view In the 1920s, the South American States Department of Agriculture comments and to view supporting and cactus moth was introduced into (USDA), plant inspection station in related materials available Australia and other areas as a biological accordance with 7 CFR part 319. Any electronically. control agent of invasive prickly pear propagative plant material found to be Postal Mail/Commercial Delivery: cactus (Opuntia spp.). Its success led to infested with the South American Please send two copies of your comment its introduction into the Caribbean and cactus moth currently must be returned to Docket No. APHIS–2006–0153, Hawaii in the 1950s. In 1989, it was to its place of origin, treated, or Regulatory Analysis and Development, detected in southern Florida, where it destroyed. Since the South American PPD, APHIS, Station 3A–03.8, 4700 was most likely introduced through cactus moth larvae are internal feeders, River Road Unit 118, Riverdale, MD imported infested nursery plants. More they are difficult to detect during 20737–1238. Please state that your recently, South American cactus moth normal inspection. Therefore, the comment refers to Docket No. APHIS– has been discovered in other parts of current regulations that require only 2006–0153. Florida, as well as in Georgia, South inspection may not provide an adequate Reading Room: You may read any Carolina, and Alabama, and it continues safeguard to prevent the introduction comments that we receive on this to spread north and west. It is projected and spread of South American cactus docket in our reading room. The reading that, at the same rate of spread as seen moth. APHIS is in the process of room is located in room 1141 of the in Florida, without any control amending these territorial and foreign USDA South Building, 14th Street and measures, the moth may reach Texas by cactus moth regulations to better

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address the risks associated with the Regulated Articles (§ 301.55–2) imposed on the interstate movement of movement of host material from areas Certain articles present a risk of regulated articles and that the where South American cactus moth is spreading the South American cactus designation of less than the entire State known to occur. moth if they are moved from as a quarantined area would prevent the In order to provide a barrier to the quarantined areas without restrictions. interstate spread of the South American natural westward spread of South We would call these articles regulated cactus moth. In practice, the latter American cactus moth, APHIS, in articles, and would impose restrictions determination—that the designation of cooperation with the Agricultural less than an entire State would prevent on their movement because the South Research Service, USDA, and funding the interstate spread of the South American cactus moth can survive in provided by the Government of Mexico, American cactus moth—would be these materials if present and could is testing a sterile insect release program based, at least in part, on our finding possibly be transported to noninfested along the U.S. Gulf Coast. However, that infestations are confined to the areas. Paragraphs (a) through (c) of without a domestic quarantine program quarantined areas as a result of natural proposed § 301.55–2 would list the to address the artificial spread of the breaks between infested areas and following as regulated articles: pest by restricting the movement of host noninfested areas, known as zones, and • The South American cactus moth, material from infested States, this would eliminate the need for in any living stage of its development; barrier alone will not be effective in designating an entire State as a • Cactus plants or parts thereof stopping the westward movement of the quarantined area. APHIS would likely (excluding seeds and canned, preserved, South American cactus moth. Therefore, adopt existing buffer zones that have or frozen pads or fruits) of the following we are proposing to amend the domestic been established under the States’ genera: Consolea, Cylindropuntia, quarantine notices in 7 CFR part 301 by current eradication programs. Nopalea, and Opuntia; and adding a new subpart, ‘‘South American • Paragraph (b) of proposed § 301.55–3 Cactus Moth’’ (§§ 301.55 through Any other product, article, or means would provide that we may temporarily 301.55–9, referred to below as the of conveyance when an inspector designate any nonquarantined area in a regulations). The regulations would determines that it presents a risk of State as a quarantined area when we provide for the designation of spreading the South American cactus determine that the nonquarantined area quarantined areas and would restrict the moth and the person in possession of meets the criteria for designation as a interstate movement of regulated the product, article, or means of quarantined area described in § 301.55– articles from quarantined areas into or conveyance has been notified in writing 3(a). In such cases, we would give the through nonquarantined areas. These that it is subject to the restrictions in the owner, person in possession of the proposed provisions are described in regulations. nonquarantined area, or, in the case of detail below. The last item listed above, which publicly owned land, the person would provide for the designation of responsible for the management of the Restrictions on Interstate Movement of ‘‘any other product, article, or means of nonquarantined area, a copy of the Regulated Articles (§ 301.55) conveyance’’ as a regulated article, regulations along with written notice of Proposed § 301.55 would prohibit the would be intended to address the risks the area’s temporary designation as a interstate movement of regulated presented by, for example, a truck that quarantined area, after which time the articles from any quarantined area may have inadvertently picked up plant interstate movement of any regulated except in accordance with the material or adult South American cactus article from the area would be subject to regulations. This section would also moths while driving through fields, thus the regulations. This proposed provision contain a footnote explaining that any enabling an inspector to designate that would be necessary to prevent the properly identified inspector is truck as a regulated article in order to spread of the South American cactus authorized, upon probable cause, to stop ensure that any necessary risk- moth during the time between the and inspect persons and means of mitigating measures are carried out. detection of the pest and the time a conveyance moving in interstate Quarantined Areas (§ 301.55–3) document designating the area as a commerce and to hold, seize, quarantined area could be made quarantine, treat, apply other remedial Paragraph (a) of proposed § 301.55–3 effective and published in the Federal measures to, destroy, or otherwise would provide the criteria for the Register. In the event that an area’s dispose of regulated articles as provided inclusion of States, or portions of States, designation as a temporary quarantined in sections 414, 421, and 434 of the in the list of quarantined areas. Under area is terminated, we would provide Plant Protection Act (7 U.S.C. 7714, these criteria, any State or portion of a written notice of that termination to the 7731, and 7754). State in which the South American owner or person in possession of the cactus moth is found by an inspector, in area as soon as would be practicable. Definitions (§ 301.55–1) which the Administrator has reason to Paragraph (c) would list the areas Proposed § 301.55–1 would contain believe that the South American cactus quarantined because of the presence of definitions of the following terms: moth is present, or that the the South American cactus moth. Administrator, Animal and Plant Health Administrator considers necessary to Surveys conducted by State agriculture Inspection Service (APHIS), cactus regulate due to the area’s inseparability departments in the States of Alabama, plants, certificate, compliance for quarantine enforcement purposes Florida, Georgia, and South Carolina agreement, departmental permit, from localities in which the South during recent years have confirmed the infestation, inspector, interstate, limited American cactus moth has been found, presence of South American cactus permit, moved (move, movement), would be listed as a quarantined area. moth in both wild and cultivated cactus person, Plant Protection and Quarantine These proposed criteria would also plants. If these States were to delimit (PPQ), quarantined area, regulated provide that we would designate less their infestations and implement article, South American cactus moth, than an entire State as a quarantined intrastate quarantines, we would be able and State. These proposed terms and area only if we determine that the State to narrow the scope of the quarantine. their definitions are set out in the has adopted and is enforcing restrictions However, none of these States currently regulatory text at the end of this on the intrastate movement of regulated have intrastate quarantines in place. document. articles that are equivalent to those Therefore, we are proposing to designate

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the States of Alabama, Florida, Georgia, Issuance and Cancellation of the article (1) is to be moved interstate and South Carolina, in their entirety, as Certificates and Limited Permits to a specified destination for specified quarantined areas. (§ 301.55–5) handling, processing or utilization, and that the movement will not result in the Conditions Governing the Interstate Certificates would be issued for regulated articles when an inspector or spread of the South American cactus Movement of Regulated Articles From moth because life stages of the South Quarantined Areas (§ 301.55–4) other person authorized to issue certificates finds that the articles have American cactus moth will be destroyed This section would provide criteria met the conditions of the regulations by the specified handling, processing, or utilization; (2) will be moved in for moving regulated articles interstate and may be safely moved interstate compliance with any additional from quarantined areas. Paragraph (a) without further restrictions. would provide that any regulated Specifically, proposed § 301.55–5(a) conditions imposed by the Administrator under section 414 of the articles from a quarantined area may be would provide that a certificate may be Plant Protection Act (7 U.S.C. 7714) to moved interstate if moved with a issued for the interstate movement of a prevent the spread of the South certificate or limited permit issued and regulated article by an inspector, or a American cactus moth; and (3) is attached in accordance with proposed person operating under a compliance eligible for interstate movement under §§ 301.55–5 and 301.55–8. Seeds and agreement in accordance with proposed all other Federal domestic plant canned, preserved, or frozen pads or § 301.55–6, if the inspector or other quarantines and regulations applicable fruits of regulated cactus genera would authorized person determines that: to the regulated article. not considered to be regulated articles • The regulated article to be moved because the life stages of the South We would include a footnote that and all other regulated articles on the would provide an address for securing American cactus moth either do not premises have been grown and inhabit the specified plant part (i.e., the addresses and telephone numbers of maintained indoors in a shadehouse or the local Plant Protection and seeds) or would be destroyed by the greenhouse and no other cactus moth specified handling, processing, or Quarantine (PPQ) offices from which host material exists on the premises the services of an inspector may be utilization. As noted previously, we are outside of a shadehouse or greenhouse; planning to issue a separate rulemaking • requested. The regulated article to be moved Paragraph (c) of proposed § 301.55–5 to address the risks from cactus moth and all other regulated articles on the host material moving into the would provide that any person who has premises are maintained on benches entered into and is operating under a continental United States from Hawaii that are kept separate from benches and U.S. territories and from foreign compliance agreement may issue a containing non-host material; certificate or limited permit for the countries where South American cactus • The regulated article to be moved moth is known to occur. interstate movement of a regulated and all other regulated articles on the article after an inspector has determined Paragraph (b) would provide that any premises have been placed on a 21-day that the article is otherwise eligible for regulated articles from a quarantined insecticide spray cycle and have been a certificate under § 301.55–5(a) or a area may be moved interstate without a sprayed with Bacillus thuringiensis limited permit under § 301.55–5(b). certificate or limited permit if the subsp. kurstaki, carbaryl, deltamethrin, Also, § 301.55–5(d) would contain regulated article: spinosad, or imidaploprid if maintained • provisions for the cancellation of a Originated outside the quarantined in the nursery for longer than 21 days; certificate or limited permit by an area and is either moved in an enclosed • The regulated article to be moved inspector if the inspector determines vehicle or is completely enclosed by a has been sprayed with Bacillus that the holder of the certificate or covering (such as canvas, plastic, or thuringiensis subsp. kurstaki, carbaryl, limited permit has not complied with other closely woven cloth) adequate to spinosad, or imidaploprid 3 to 5 days conditions of the regulations. This prevent access by South American prior to shipment and inspected and paragraph would also contain cactus moths while moving through the found free of cactus moth egg sticks and provisions for notifying the holder of quarantined area; larval damage; and the reasons for the cancellation and for • Is kept in an enclosed vehicle or the • If the regulated article was moved holding a hearing if there is any conflict enclosure that contains the regulated into the premises from another premises concerning any material fact in the article is not opened, unpacked, or in a quarantined area listed in § 301.55– event that the person wishes to appeal unloaded in the quarantined area and 3, it was immediately placed inside the the cancellation. the point of origin of the regulated shadehouse or greenhouse and sprayed article is indicated on the waybill; and with Bacillus thuringiensis subsp. Compliance Agreements and • Moved through the quarantined kurstaki, carbaryl, spinosad, or Cancellation (§ 301.55–6) area without stopping except for imidaploprid within 24 hours. Proposed § 301.55–6 would provide refueling or for traffic conditions, such Limited permits would be issued for for the use of and cancellation of as traffic lights or stop signs. regulated articles when an inspector compliance agreements. Compliance Paragraph (c) would provide that a finds that, because of a possible pest agreements would be provided for the certificate or limited permit would also risk, the articles may be safely moved convenience of persons who are not be required if the regulated article interstate only subject to further involved in the growing, handling, or is moved by the USDA for experimental restrictions, such as movement to moving of regulated articles from or scientific purposes in accordance limited areas or movement for limited quarantined areas. A person would be with conditions specified on a purposes. Proposed § 301.55–5 would able to enter into a compliance departmental permit and with a tag or explain the conditions under which a agreement when an inspector has label bearing the number of the limited permit would be issued. determined that the person requesting departmental permit issued for the Specifically, proposed § 301.55–5(b) the compliance agreement has been regulated article attached to the outside would provide that a limited permit made aware of the requirements of the of the container of the regulated article may be issued by an inspector for the regulations and the person has agreed to or attached to the regulated article itself interstate movement of a regulated comply with the requirements of the if not in a container. article if the inspector determines that regulations and the provisions of the

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compliance agreement. This section location provided on the certificate or In this rule we are proposing to would contain a footnote that explains limited permit. establish regulations to restrict the where compliance agreement forms may interstate movement of South American Costs and Charges (§ 301.55–9) be obtained. cactus moth host material from Proposed § 301.55–6 would also Proposed § 301.55–9 would explain quarantined areas on the U.S. mainland provide that an inspector may, either the APHIS policy that the services of an to non-quarantined areas. Under this orally or in writing, cancel the inspector that are needed to comply rule, such movement would be compliance agreement upon finding that with the regulations would be provided prohibited, except under certain a person who has entered into the without cost between 8 a.m. and 4:30 conditions. Currently, there is no agreement has failed to comply with any p.m., Monday through Friday, except restriction on the interstate movement of the provisions of the regulations or holidays, to persons requiring those of South American cactus moth host the terms of the compliance agreement. services, but that APHIS would not be material from areas on the mainland If the cancellation is oral, the responsible for any other costs or that have been found to be infested with cancellation and the reasons for the charges incident to inspections or the pest. In addition, the rule would cancellation would be confirmed in compliance with the provisions of the designate the States of Alabama, writing as promptly as circumstances quarantine and regulations other than Florida, Georgia, and South Carolina, in allow. Any person whose compliance for the services of the inspector. their entirety, as quarantined areas for agreement has been canceled would be South American cactus moth. Executive Order 12866 and Regulatory All current growers in the four-State able to appeal the decision, in writing, Flexibility Act to the Administrator, within 10 days quarantined area are believed to after receiving written notification of the This proposed rule has been reviewed produce host materials primarily for use cancellation and would have to state all under Executive Order 12866. The rule in dish-gardens of mixed species. For of the facts and reasons upon which the has been determined to be not these growers, the proposed rule should person relies to show that the significant for the purposes of Executive not be particularly problematic. This is compliance agreement was wrongfully Order 12866 and, therefore, has not because other species of cactus could easily be substituted for host species canceled. As promptly as circumstances been reviewed by the Office of cactus in dish-gardens shipped to non- allow, the Administrator would grant or Management and Budget. quarantined areas. However, the rule deny the appeal, in writing, stating the South American cactus moth is a pest could pose a problem for would-be reasons for the decision. that attacks primarily prickly pear cacti that can live in arid and coastal areas. growers of prickly pear cactus for the Assembly and Inspection of Regulated In the continental United States, South small but growing food market.2 This is Articles (§ 301.55–7) American cactus moth has been found because, if found to be infested with in Florida, Georgia, South Carolina, and South American cactus moth, they Proposed § 301.55–7 would provide Alabama. It has also been found in might be unable to ship fresh cactus that any person (other than an inspector Hawaii, Puerto Rico, and the U.S. Virgin leaves and fruit to non-quarantined or a person operating under a Islands, as well as more than 30 foreign areas, including some areas with large compliance agreement) who desires to countries. Hosts for the pest are the live Hispanic populations. Although these move interstate regulated articles which plants and plant parts (except seeds) of growers would be able to ship canned, must be accompanied by a certificate or Consolea, Cylindropuntia, Nopalea, and preserved, or frozen cactus food from a limited permit would have to request Opuntia, four genera of the botanical quarantined area, consumers prefer the that an inspector inspect the articles for family Cactaceae. Opuntia spp. are fresh varieties.3 The number of would- movement at least 48 hours before the commonly known as prickly pear be growers of cactus for use as food in desired movement. The regulated cactus. the four-State quarantined area is articles would have to be assembled in Opuntia, in particular, has both unknown, but it is likely to be very a place and manner directed by the commercial and ecological value. Most small, based on the small number of inspector. of its commercial value lies in its use as ornamental cactus growers in that area. Attachment and Disposition of an ornamental plant material for To the extent that it prevents the Certificates and Limited Permits landscaping projects in the more arid spread of C. cactorum on the mainland, (§ 301.55–8) areas of the United States Southwest. the rule would benefit U.S. entities, Opuntia also has a small but growing Proposed § 301.55–8 would require commercial value as a food crop, as Final Report to the International Atomic Energy the certificate or limited permit issued Agency, April 25, 2005. there is demand in the United States for for movement of the regulated article to 2 The Florida Department of Plant Industry edible cactus leaves and fruit, especially be attached, during the interstate recently promoted the use of prickly pear cactus as in the Hispanic community. Other uses a niche crop to fill the Hispanic market demand. movement, to the regulated article, or to of Opuntia include emergency forage for 3 In a 2004 report on cactus leaf pads (nopalitos), a container carrying the regulated cattle during periods of drought and the Florida Department of Agriculture and article, or to the consignee’s copy of the Consumer Services stated that consumers prefer wildlife feed for game animals. In the accompanying waybill. If the certificate fresh nopalitos. However, the report also stated that United States southwest desert, Opuntia or limited permit is attached to the shipping them is difficult, a factor that would seem plants play a key role in sustaining to lessen the negative impact of the rule’s restriction consignee’s copy of the waybill, the ecosystems, providing habitat for on the movement of fresh cactus from the regulated article would have to be quarantined areas. The report stated that ‘‘cactus wildlife and protection against soil sufficiently described on the certificate pads are thorny and the consumer has the erosion. A healthy desert ecosystem also or limited permit and on the waybill to unpleasant task of cleaning them. If the nopalitos has economic benefits, since it promotes are shipped cleaned of thorns they tend to oxidize identify the regulated article. Further, increased tourism, recreation, and and have a short shelf life. Some companies the section would require that the dethorn and dice the Nopales, seal them in plastic hunting.1 carrier or the carrier’s representative bags and ship them in refrigerated trucks to U.S. markets, but the quality is low, the price is high, furnish the certificate or limited permit 1 Preliminary assessment of the potential impacts and they spoil within 2–3 days.’’ See Nopalitos: to the consignee listed on the certificate and risks of the invasive cactus moth, Cactoblastis Florida’s New Niche Production Commodity, Final or limited permit upon arrival at the cactorum Berg, in the United States and Mexico; Report for Agreement #12–25–G–0382.

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primarily those in the ornamental Paperwork Reduction Act is estimated to average 0.6 hours per nursery and landscape industries in the response. In accordance with section 3507(d) of Southwest. Most commercial nurseries Respondents: State plant regulatory the Paperwork Reduction Act of 1995 that produce prickly pear cacti as officials. (44 U.S.C. 3501, et seq.), the information ornamental plants are located in collection or recordkeeping Estimated annual number of Arizona, followed by California. In requirements included in this proposed respondents: 3. Arizona, there are an estimated 40 to 50 rule have been submitted for approval to Estimated annual number of such producers in the Phoenix area the Office of Management and Budget responses per respondent: 10. alone; in California, there are an (OMB). Please send written comments Estimated annual number of estimated 30 growers of ornamental to the Office of Information and responses: 30. cacti. U.S. production of prickly pear Regulatory Affairs, OMB, Attention: Estimated total annual burden on cactus for edible use is limited largely Desk Officer for APHIS, Washington, DC respondents: 18 hours. (Due to to California; many, if not most, cactus 20503. Please state that your comments averaging, the total annual burden hours 4 growers are small in size. refer to Docket No. APHIS–2006–0153. may not equal the product of the annual Based on available information, we Please send a copy of your comments to: number of responses multiplied by the conclude that adoption of the rule (1) Docket No. APHIS–2006–0153, reporting burden per response.) would not have a significant economic Regulatory Analysis and Development, Copies of this information collection impact on a substantial number of small PPD, APHIS, Station 3A–03.8, 4700 can be obtained from Mrs. Celeste entities, if for no other reason than few River Road Unit 118, Riverdale, MD Sickles, APHIS’ Information Collection entities, large or small, are likely to be 20737–1238, and (2) Clearance Officer, Coordinator, at (301) 734–7477. affected. Although hard data are not OCIO, USDA, room 404–W, 14th Street E-Government Act Compliance available, informed APHIS staff estimate and Independence Avenue, SW., that there are no more than about five Washington, DC 20250. A comment to The Animal and Plant Health producers of the host material in the OMB is best assured of having its full Inspection Service is committed to four-State quarantined area, all of whom effect if OMB receives it within 30 days compliance with the E-Government Act are believed to be Florida nurseries that of publication of this proposed rule. to promote the use of the Internet and produce prickly pear cactus, usually for APHIS is proposing to establish other information technologies, to use in dish-gardens of mixed species. regulations to quarantine the States of provide increased opportunities for The bulk of U.S. prickly pear cactus Alabama, Florida, Georgia, and South citizen access to Government production, both for use as an Carolina because of South American information and services, and for other ornamental plant and for use as an cactus moth and restrict the interstate purposes. For information pertinent to edible food, is concentrated in the movement of regulated articles from the E-Government Act compliance related Southwest, not the four Southeastern quarantined areas. In order to move to this proposed rule, please contact States designated as quarantined areas.5 regulated articles interstate from the Mrs. Celeste Sickles, APHIS’ quarantined area, regulated parties Information Collection Coordinator, at Under these circumstances, the (301) 734–7477. Administrator of the Animal and Plant would have to obtain certificates or Health Inspection Service has limited permits, and they would be able List of Subjects in 7 CFR Part 301 determined that this action would not to enter into compliance agreements with APHIS. We are soliciting Agricultural commodities, Plant have a significant economic impact on diseases and pests, Quarantine, a substantial number of small entities. comments from the public (as well as affected agencies) concerning our Reporting and recordkeeping Executive Order 12372 information collection and requirements, Transportation. recordkeeping requirements. These Accordingly, we propose to amend 7 This program/activity is listed in the comments will help us: CFR part 301 as follows: Catalog of Federal Domestic Assistance (1) Evaluate whether the information PART 301—DOMESTIC QUARANTINE under No. 10.025 and is subject to collection is necessary for the proper NOTICES Executive Order 12372, which requires performance of our agency’s functions, intergovernmental consultation with including whether the information will 1. The authority citation for part 301 State and local officials. (See 7 CFR part have practical utility; continues to read as follows: 3015, subpart V.) (2) Evaluate the accuracy of our Authority: 7 U.S.C. 7701–7772 and 7781– Executive Order 12988 estimate of the burden of the 7786; 7 CFR 2.22, 2.80, and 371.3. information collection, including the Section 301.75–15 issued under Sec. 204, This rule has been reviewed under validity of the methodology and Title II, Public Law 106–113, 113 Stat. Executive Order 12988, Civil Justice assumptions used; 1501A–293; sections 301.75–15 and 301.75– Reform. If this rule is adopted: (1) All (3) Enhance the quality, utility, and 16 issued under Sec. 203, Title II, Public Law State and local laws and regulations that clarity of the information to be 106–224, 114 Stat. 400 (7 U.S.C. 1421 note). are inconsistent with this rule will be collected; and 2. Part 301 is amended by adding a preempted; (2) no retroactive effect will (4) Minimize the burden of the new Subpart—South American Cactus be given to this rule; and (3) information collection on those who are Moth, §§ 301.55 through 301.55–9, to administrative proceedings will not be to respond (such as through the use of read as follows: required before parties may file suit in appropriate automated, electronic, Subpart—South American Cactus Moth court challenging this rule. mechanical, or other technological collection techniques or other forms of Sec. 4 Source: Lynn Garrett (APHIS) and Irish, M. 301.55 Restrictions on interstate movement information technology; e.g., permitting of regulated articles. 2001. The Ornamental Prickly Pear Industry in the electronic submission of responses). Southwestern United States. Florida Entomologist 301.55–1 Definitions. 84(4). Estimate of burden: Public reporting 301.55–2 Regulated articles. 5 See footnote 4. burden for this collection of information 301.55–3 Quarantined areas.

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301.55–4 Conditions governing the Administrator to perform the duties § 301.55–3 Quarantined areas. interstate movement of regulated articles required under this subpart. (a) Except as otherwise provided in from quarantined areas. Interstate. From any State into or paragraph (b) of this section, the 301.55–5 Issuance and cancellation of through any other State. Administrator will list as a quarantined certificates and limited permits. Limited permit. A document in which 301.55–6 Compliance agreements and area in paragraph (c) of this section each cancellation. an inspector or person operating under State, or each portion of a State, in 301.55–7 Assembly and inspection of a compliance agreement affirms that the which the South American cactus moth regulated articles. regulated article identified on the has been found by an inspector, in 301.55–8 Attachment and disposition of document is eligible for interstate which the Administrator has reason to certificates and limited permits. movement in accordance with § 301.55– believe that the South American cactus 301.55–9 Costs and charges. 5(b) only to a specified destination and moth is present, or that the only in accordance with specified Administrator considers necessary to Subpart—South American Cactus conditions. Moth quarantine because of its inseparability Moved (move, movement). Shipped, for quarantine enforcement purposes § 301.55 Restrictions on interstate offered for shipment, received for from localities where South American movement of regulated articles. transportation, transported, carried, or cactus moth has been found. Less than No person may move interstate from allowed to be moved, shipped, an entire State will be designated as a any quarantined area any regulated transported, or carried. quarantined area only if the article except in accordance with this Person. Any association, company, Administrator determines that: subpart.1 corporation, firm, individual, joint stock (1) The State has adopted and is company, partnership, society, or other enforcing restrictions on the intrastate § 301.55–1 Definitions. entity. movement of the regulated articles that Administrator. The Administrator, Plant Protection and Quarantine are equivalent to those imposed by this Animal and Plant Health Inspection (PPQ). The Plant Protection and subpart on the interstate movement of Service, or any person authorized to act Quarantine program of the Animal and regulated articles; and for the Administrator. Plant Health Inspection Service, United (2) The designation of less than the Animal and Plant Health Inspection States Department of Agriculture. entire State as a quarantined area will be Service (APHIS). The Animal and Plant Quarantined area. Any State, or any adequate to prevent the interstate spread Health Inspection Service of the United portion of a State, listed in § 301.55–3(c) of the South American cactus moth. States Department of Agriculture. or otherwise designated as a (b) The Administrator or an inspector Cactus plants. Any of various fleshy- quarantined area in accordance with may temporarily designate any stemmed plants of the botanical family § 301.55–3(b). nonquarantined area in a State as a Cactaceae. Regulated article. Any article listed in quarantined area in accordance with the Certificate. A document in which an § 301.55–2(a) or (b), or otherwise criteria specified in paragraph (a) of this inspector or person operating under a designated as a regulated article in section. The Administrator will give a compliance agreement affirms that a accordance with § 301.55–2(c). copy of this regulation along with specified regulated article is free of South American cactus moth. The written notice of the temporary South American cactus moth and may live insect known as the South designation to the owner or person in be moved interstate to any destination. American cactus moth, Cactoblastis possession of the nonquarantined area, Compliance agreement. A written cactorum, in any life stage (egg, larva, or, in the case of publicly owned land, agreement between APHIS and a person pupa, adult). to the person responsible for the engaged in growing, handling, or State. The District of Columbia, management of the nonquarantined moving regulated articles, wherein the Puerto Rico, the Northern Mariana area. Thereafter, the interstate person agrees to comply with this Islands, or any State, territory, or movement of any regulated article from subpart. possession of the United States. an area temporarily designated as a Departmental permit. A document quarantined area will be subject to this issued by the Administrator in which he § 301.55–2 Regulated articles. subpart. As soon as practicable, the area or she affirms that interstate movement The following are regulated articles: will be added to the list in paragraph (c) of the regulated article identified on the (a) The South American cactus moth, of this section or the designation will be document is for scientific or in any living stage of its development.2 terminated by the Administrator or an experimental purposes and that the (b) Cactus plants or parts thereof inspector. The owner or person in regulated article is eligible for interstate (excluding seeds and canned, preserved, possession of, or, in the case of publicly movement in accordance with § 301.55– or frozen pads or fruits) of the following owned land, the person responsible for 4(c). genera: Consolea, Cylindropuntia, Infestation. The presence of the South Nopalea, and Opuntia. the management of, an area for which American cactus moth or the existence (c) Any other product, article, or designation is terminated will be given of circumstances that makes it means of conveyance not listed in written notice of the termination as soon reasonable to believe that the South paragraphs (a) or (b) of this section that as practicable. American cactus moth may be present. an inspector determines presents a risk (c) The following areas are designated Inspector. Any employee of APHIS or of spreading the South American cactus as quarantined areas: other person authorized by the moth, after the inspector provides Alabama written notification to the person in 1 Any properly identified inspector is authorized, possession of the product, article, or The entire State. upon probable cause, to stop and inspect persons means of conveyance that it is subject to Florida and means of conveyance moving in interstate the restrictions of this subpart. commerce and to hold, seize, quarantine, treat, The entire State. apply other remedial measures to, destroy, or otherwise dispose of regulated articles as provided 2 Permit and other requirements for the interstate Georgia in sections 414, 421, and 434 of the Plant Protection movement of South American cactus moths are Act (7 U.S.C. 7714, 7731, and 7754). contained in part 330 of this chapter. The entire State.

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South Carolina a regulated article if the inspector agreement. A person operating under a determines that: compliance agreement may issue a The entire State. (1) The regulated article to be moved certificate or limited permit for § 301.55–4 Conditions governing the and all other regulated articles on the interstate movement of a regulated interstate movement of regulated articles premises have been grown and article after an inspector has determined from quarantined areas. maintained indoors in a shadehouse or that the regulated article is eligible for Any regulated article may be moved greenhouse and no other cactus moth a certificate or limited permit in interstate from a quarantined area3 only host material exists on the premises accordance with paragraphs (a) or (b) of if moved under the following outside of a shadehouse or greenhouse; this section. conditions: (2) The regulated article to be moved (d) Any certificate or limited permit and all other regulated articles on the that has been issued may be canceled, (a) With a certificate or limited permit premises are maintained on benches either orally or in writing, by an issued and attached in accordance with that are kept separate from benches inspector whenever the inspector §§ 301.55–5 and 301.55–8; containing non-host material; determines that the holder of the limited (b) Without a certificate or limited (3) The regulated article to be moved permit has not complied with this permit if: and all other regulated articles on the subpart or any conditions imposed (1) The regulated article originated premises have been placed on a 21-day under this subpart. If the cancellation is outside the quarantined area and is insecticide spray cycle and have been oral, the cancellation will become either moved in an enclosed vehicle or sprayed with Bacillus thuringiensis effective immediately, and the is completely enclosed by a covering subsp. kurstaki, carbaryl, spinosad, or cancellation and the reasons for the (such as canvas, plastic, or other closely imidaploprid if maintained in the cancellation will be confirmed in woven cloth) adequate to prevent access nursery for longer than 21 days; writing as soon as circumstances permit. by South American cactus moths while (4) The regulated article to be moved Any person whose certificate or limited moving through the quarantined area; has been sprayed with Bacillus permit has been canceled may appeal and thuringiensis subsp. kurstaki, carbaryl, the decision in writing to the (2) The point of origin of the regulated spinosad, or imidaploprid 3 to 5 days Administrator within 10 days after article is indicated on the waybill, and prior to shipment and inspected and receiving the written cancellation the enclosed vehicle or the enclosure found free of cactus moth egg sticks and notice. The appeal must state all of the that contains the regulated article is not larval damage; and facts and reasons that the person wants opened, unpacked, or unloaded in the (5) If the regulated article was moved the Administrator to consider in quarantined area; and into the premises from another premises deciding the appeal. A hearing may be (3) The regulated article is moved in a quarantined area listed in § 301.55– held to resolve a conflict as to any through the quarantined area without 3, it was immediately placed inside the material fact. Rules of practice for the stopping except for refueling or for shadehouse or greenhouse and sprayed hearing will be adopted by the traffic conditions, such as traffic lights with Bacillus thuringiensis subsp. Administrator. As soon as practicable, or stop signs. kurstaki, carbaryl, spinosad, or the Administrator will grant or deny the (c) Without a certificate or limited imidaploprid within 24 hours. appeal, in writing, stating the reasons permit if the regulated article is moved: (b) An inspector will issue a limited for the decision. permit for the interstate movement of a (1) By the United States Department regulated article if the inspector § 301.55–6 Compliance agreements and of Agriculture for experimental or cancellation. determines that: scientific purposes; (1) The regulated article is to be (a) Any person engaged in growing, (2) Pursuant to a departmental permit moved interstate to a specified handling, or moving regulated articles issued by the Administrator for the destination for specified handling, may enter into a compliance agreement regulated article; processing, or utilization (the when an inspector determines that the (3) Under conditions specified on the destination and other conditions to be person is aware of this subpart, agrees departmental permit and found by the listed in the limited permit), and this to comply with its provisions, and Administrator to be adequate to prevent interstate movement will not result in agrees to comply with all the provisions the spread of the South American cactus the spread of the South American cactus contained in the compliance 5 moth; and moth because life stages of the South agreement. (4) With a tag or label bearing the American cactus moth will be destroyed (b) Any compliance agreement may be canceled, either orally or in writing, by number of the departmental permit by the specified handling, processing, or an inspector whenever the inspector issued for the regulated article attached utilization; to the outside of the container of the (2) It is to be moved in compliance finds that the person who has entered regulated article or attached to the with any additional conditions that the into the compliance agreement has regulated article itself if not in a Administrator may impose under failed to comply with this subpart or the terms of the compliance agreement. If container. section 414 of the Plant Protection Act (7 U.S.C. 7714) in order to prevent the the cancellation is oral, the cancellation § 301.55–5 Issuance and cancellation of spread of the South American cactus and the reasons for the cancellation will certificates and limited permits. be confirmed in writing as promptly as moth; and (a) An inspector 4 may issue a (3) It is eligible for unrestricted circumstances allow. Any person whose certificate for the interstate movement of movement under all other Federal compliance agreement has been domestic plant quarantines and canceled may appeal the decision, in writing, to the Administrator, within 10 3 Requirements under all other applicable Federal regulations applicable to the regulated domestic plant quarantines and regulations must article. days after receiving written notification also be met. (c) Certificates and limited permits for 4 Services of an inspector may be requested by 5 Compliance agreement forms are available contacting local offices of Plant Protection and the interstate movement of regulated without charge from local Plant Protection and Quarantine, which are listed in telephone articles may be issued by an inspector Quarantine offices, which are listed in telephone directories. or person operating under a compliance directories.

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of the cancellation. The appeal must regulations in this subpart, other than SW., Room 1643–S, Washington, DC state all of the facts and reasons upon for the services of the inspector. 20250–3604. • which the person relies to show that the Done in Washington, DC, this 5th day of Federal e-Rulemaking Portal: Go to compliance agreement was wrongfully February 2008. http://www.regulation.gov. Follow the canceled. As promptly as circumstances Kevin Shea, on-line instruction for submitting comments. allow, the Administrator will grant or Acting Administrator, Animal and Plant deny the appeal, in writing, stating the Health Inspection Service. Instructions: All comments should refer to the date and page number of this reasons for the decision. A hearing will [FR Doc. E8–2477 Filed 2–8–08; 8:45 am] be held to resolve any conflict as to any issue of the Federal Register. BILLING CODE 3410–34–P material fact. Rules of practice Background Documents: Regulatory concerning a hearing will be adopted by analyses and other documents relating the Administrator. DEPARTMENT OF AGRICULTURE to this action will be available for public inspection in the above office during § 301.55–7 Assembly and inspection of regular business hours. regulated articles. Grain Inspection, Packers and Stockyards Administration Read Comments: All comments will (a) Any person (other than a person be available for public inspection in the authorized to issue limited permits 9 CFR Part 201 above office during regular business under § 301.55*5(c)) who desires a hours (7 CFR 1.27(b)). Please call GIPSA certificate or limited permit to move a RIN 0580–AA99 Management Support Services staff at regulated article interstate must request (202) 720–7486 to arrange a public an inspector 6 to examine the articles as Weighing, Feed, and Swine Contractors inspection of comments. far in advance of the desired interstate FOR FURTHER INFORMATION CONTACT: S. movement as possible, but no less than AGENCY: Grain Inspection, Packers and Brett Offutt, Director, Policy and 48 hours before the desired interstate Stockyards Administration, USDA. Litigation Division, P&SP, GIPSA, 1400 movement. ACTION: Proposed rule. Independence Ave., SW., Washington, (b) The regulated article must be DC 20250, (202) 720–7363, assembled at the place and in the SUMMARY: We propose to amend four [email protected]. manner the inspector designates as existing scales and weighing regulations necessary to comply with this subpart. issued under the Packers and SUPPLEMENTARY INFORMATION: Stockyards Act (P&S Act) to ensure that § 301.55–8 Attachment and disposition of Background payments by live poultry dealers and certificates and limited permits. The Grain Inspection, Packers and swine contractors to poultry and swine Stockyards Administration (GIPSA) is (a) A certificate or limited permit production contract growers are based responsible for enforcement of the P&S required for the interstate movement of on accurate weighing of both inputs and Act. Under authority delegated to us by a regulated article must, at all times outputs. We propose to amend a the Secretary of Agriculture, we are during the interstate movement, be: regulation on scale tickets to reduce authorized (7 U.S.C. 228) to make those (1) Attached to the outside of the redundant wording and clarify weighing regulations necessary to carry out the container containing the regulated procedures. We propose to amend a provisions of the P&S Act. We propose article; or regulation on reweighing to add swine to amend the following regulations: (2) Attached to the regulated article contractors to the list of firms that must • Section 201.49—Requirements itself if not in a container; or comply, and to add feed to the list of regarding scale tickets evidencing (3) Attached to the consignee’s copy items for which reweighing may be weighing of livestock, live poultry and of the accompanying waybill. If the requested. We propose to amend two feed, certificate or limited permit is attached regulations on weighing livestock and • Section 201.76—Reweighing, to the consignee’s copy of the waybill, poultry to add weighing processes for • Section 201.82—Care and the regulated article must be sufficiently feed, to add a specific time limit for promptness in weighing and handling described on the certificate or limited weighing poultry, and to add swine livestock and live poultry, and permit and on the waybill to identify contractors to the list of firms that must • Section 201.108–1—Instructions for the regulated article. comply with care and promptness weighing live poultry. (b) The certificate or limited permit requirements. for the interstate movement of a Violations of these sections of the regulated article must be furnished by DATES: We will consider comments we regulations are deemed to be unfair or the carrier or the carrier’s representative receive by April 11, 2008. deceptive practices and constitute to the consignee listed on the certificate ADDRESSES: We invite you to submit violations of § 202 (7 U.S.C. 192) or or limited permit upon arrival at the comments on this proposed rule. You § 312 (7 U.S.C. 213) of the P&S Act. location provided on the certificate or may submit comments by any of the Packers and swine contractors may be limited permit. following methods: assessed civil penalties of up to $11,000 • E-Mail: Send comments via (7 U.S.C. 193) for each violation of § 301.55–9 Costs and charges. electronic mail to § 202. Market agencies and dealers may The services of the inspector during [email protected]. be assessed civil penalties of as much as normal business hours (8 a.m. to 4:30 • Mail: Send hardcopy written $11,000 (7 U.S.C. 213) for each violation p.m., Monday through Friday, except comments to Tess Butler, GIPSA, USDA, of § 312. Given the consequences for holidays) will be furnished without 1400 Independence Avenue, SW., Room violating these regulations, it is cost. APHIS will not be responsible for 1643–S, Washington, DC 20250–3604. important that these regulations be all costs or charges incident to • Fax: Send comments by facsimile clear. Therefore, we propose to amend inspections or compliance with the transmission to: (202) 690–2755. § 201.49 and § 201.108–1 to remove provisions of the quarantine and • Hand Delivery or Courier: Deliver redundant language. comments to: Tess Butler, GIPSA, We also propose to revise § 201.82 6 See footnote 4. USDA, 1400 Independence Avenue, and § 201.108–1 to prohibit practices

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that we consider to be unfair and Description of Proposed Amendments Act, as amended, a swine contractor deceptive. Specifically, the practices of We are proposing amendments that means any person engaged in the • delaying the weighing of livestock both clarify language in current business of obtaining swine under a and poultry, requirements and that add new swine production contract for the purpose of slaughtering the swine or • loading poultry from multiple requirements to ensure fair and accurate weighing of live poultry, swine, and selling the swine for slaughter, if the growers into one trailer load, swine is obtained by the person in • feed. failing to use scales correctly, and The proposed amendments that commerce; or the swine (including • failing to accurately weigh unused clarify existing requirements involve products from the swine) obtained by feed at the time it is collected could scale tickets and live poultry weighing. the person is sold or shipped in result in incorrect settlement payments The current § 201.49, ‘‘Requirements commerce (7 U.S.C. 182(a)(12)). We also propose to add ‘‘feed’’ to the list of to poultry and livestock growers. The regarding scale tickets evidencing items for which reweighing is required proposed rule would specifically weighing of livestock, live poultry, and on request of any authorized prohibit these unfair and deceptive feed’’, contains redundant wording representative of the Secretary. regarding scale tickets issued when practices. We also propose to amend We propose to amend paragraph (a) of paragraphs of § 201.76, 201.82, and weighing livestock, live poultry and § 201.82, ‘‘Care and Promptness in 201.108–1 that currently apply only to feed. The requirements for numbering Weighing and Handling Livestock and weighing poultry and/or livestock to scale tickets and executing sufficient Live Poultry’’, to include ‘‘swine also include feed. The intended purpose copies are largely the same for livestock, contractors’’ in the list of firms required of all the proposed amendments is to live poultry, and feed, so we propose to to comply with this regulation. ensure that the weighing process is fair consolidate the general requirements Presently, paragraph (b) of § 201.82 and accurate for all growers. Since into one new paragraph, § 201.49(a), requires that live poultry dealers growers are paid based on their followed by separate paragraphs purchasing poultry under growout efficiency in converting feed to livestock containing the specific requirements for contracts obtain the gross weight for and poultry, it is important that both the livestock, live poultry, and feed. We each load of poultry immediately upon input (feed) and the output (poultry and propose to require that a zero balance be arrival at the processing plant. We livestock) be weighed accurately. recorded and that the time the zero propose to add a sentence at the end of balance was determined be printed on A delay in the weighing of poultry or this paragraph to require that the the scale ticket, consistent with other livestock at the slaughter facility can weighing process begin without delay weighing regulations involving scale result in a lower payout to the grower and to establish the time period within tickets. We propose to remove language because the delay increases the which live poultry dealers must in § 201.108–1, ‘‘Instructions for likelihood of ‘‘shrinkage’’ of the live complete the weighing process. Finally, weighing live poultry,’’ regarding scale poultry or livestock due to death, injury, we propose to add a new paragraph (c) tickets that duplicates language in and other avoidable losses. Loading to § 201.82 to prohibit the use of split § 201.49. These proposed amendments transport trailer loads by live poultry poultry from several growers onto a would avoid potential confusion caused single trailer load (a ‘‘split load’’) is one dealers. Split loads of live poultry are by redundant language and make more loads containing flocks from more than cause of such delays and the resulting clear the requirements that are unique to avoidable losses. We therefore propose one grower. We believe prohibiting split each commodity. loads will eliminate the likelihood of to prohibit loading live poultry from We also propose to clarify language multiple growers onto a single trailer live poultry dealers failing to weigh requiring the number of the person who each grower’s flock promptly. Failure to load. There is a related issue involving performed the weighing service to make potentially inaccurate weighing when weigh poultry promptly can result in it clear we mean the identification weight loss, injury, death or other live poultry dealers and swine number of that individual, rather than avoidable loss. We also propose minor contractors pick up unused feed from the telephone number. We propose to clarifying language changes to § 201.82, multiple growers and do not weigh the clarify language regarding the including noting that this section feed on a certified scale at the time of requirement to record the license applies whenever the weight of live pick up before combining the feed into number of the truck and trailer, to poultry is a factor in calculating a single load. We propose that feed for clarify that this requirement applies to payment to the grower. each grower be weighed on a certified situations involving weighing just the We propose to modify § 201.108–1, scale and that a scale ticket be generated truck, or just the trailer, or both ‘‘Instructions for Weighing Live at the time the feed is picked up from together. We also propose to make Poultry’’, to require additional each grower, before proceeding to language requiring the license number procedures to ensure accurate weighing. another grower to pick up unused feed. or other identification number of the We also propose to add ‘‘feed’’ to the We also propose new requirements for truck and/or trailer consistent title of this section. We propose to the correct use of on-board weighing throughout this section. modify § 201.108–1 to add language to systems to ensure that unused feed is The other amendments we propose specifically address the weighing of feed weighed accurately at the time of will impose new requirements on live at the time of pickup; § 201.108–1 pickup, although we are not requiring poultry dealers and swine contractors to currently addresses only the weighing of that on-board weighing systems be used. ensure more accurate weighing for all live poultry at the time of pickup. The The purpose of these requirements is to growers. The proposed amendments proposed changes add new procedures ensure that growers are compensated that involve new requirements are as for weighing unused feed picked up based on an accurate accounting of follows: from one or more poultry growers in a inputs. Without these new requirements We propose to amend § 201.76, single load, including requirements for for accurate weighing of unused feed, ‘‘Reweighing’’ to add ‘‘swine operating and maintaining onboard growers could be compensated contractors’’, to the list of firms required weighing systems and requirements for incorrectly based on an inaccurate to comply with this regulation. As onboard weighing tickets. The proposed accounting of feed used. defined in the Packers and Stockyards changes will ensure that unused feed is

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accurately weighed at the time it is (5 U.S.C. 601, et seq.). An initial List of Subjects in 9 CFR Part 201 picked up from the grower. Failure to regulatory flexibility analysis as Reporting and recordkeeping weigh unused feed at the time of described in 5 U.S.C. 605 of the requirements, Poultry and poultry pickup, or failure to use appropriately Regulatory Flexibility Act is not products, Trade practices. required or provided here. The calibrated equipment, can result in For the reasons set forth in the proposed amendments would directly inaccurate estimates of weight and preamble, we propose to amend 9 CFR affect companies in contractual inaccurate payment to the grower. Both part 201 to read as follows: feed (inputs) and live poultry (outputs) relationships with swine production need to be weighed accurately in order contract growers and poultry growers. PART 201—[AMENDED] to ensure that growers are compensated Most of these entities are slaughterers fairly. and processors of swine or poultry with 1. The authority citation for part 201 These proposed amendments all have more than 500 employees and do not continues to read as follows: the same purpose, which is to ensure meet the applicable size standards for Authority: 7 U.S.C. 222 and 228; 7 CFR fair and accurate weighing of feed, small entities presented in the Small 2.22 and 2.81. poultry, and livestock. We believe that Business Administration regulations (13 2. Revise § 201.49 to read as follows: without these amendments, there is CFR 121.201). To the extent the significant potential for live poultry proposed amendments do affect small § 201.49 Requirements regarding scale dealers and swine contractors to engage entities, the amendments will not tickets evidencing weighing of livestock, in unfair and deceptive practices by impose substantial new expenses or live poultry, and feed. delaying the weighing of livestock, changes to routine operations. (a) When livestock, poultry or feed is using scales incorrectly or inaccurately, Small swine production contract weighed for the purpose of purchase, and denying requests for reweighing. growers and poultry growers should sale, acquisition, or settlement, a scale benefit indirectly from the proposed ticket must be issued which must be Options Considered amendments, which should provide serially numbered and used in The only alternative we considered accurate and fair weighing of their numerical sequence. Sufficient copies was to make no changes. We believe inputs and outputs. must be executed to provide a copy to these amendments are necessary to We have considered the effects of this all parties to the transaction. Unused make §§ 201.49, 201.76, 201.82 and rulemaking action under the Regulatory and partially executed scale tickets must 201.108–1 consistent with other existing Flexibility Act and we believe that it not be left exposed or accessible to other regulations and to carry out provisions will not have a significant impact on a parties and must be kept under lock of the P&S Act. substantial number of small entities. We when the weigher is not at the scale. In welcome comments on the cost of Effects on Regulated Entities instances where the weight values are compliance with this rule, and automatically recorded directly on the There should be little to no additional particularly on the impact of this account of purchase, account of sale, or cost incurred by live poultry dealers proposed rule on small entities. We also other basic transaction record, this because of these amendments. welcome comments on alternatives to record may serve in place of a scale Eliminating split loads may increase to the proposed rule that could achieve the ticket. a small extent the number of trips that same purpose with less cost or burden. (b) Livestock. When livestock is live poultry dealers make to and from weighed for the purpose of purchase or growers’ facilities. However, split loads Executive Order 12988 sale, or when livestock is purchased on can increase processing inefficiencies at These proposed amendments have a carcass weight or carcass grade and the plant, offsetting any transportation been reviewed under Executive Order weight basis, the hot carcass weights cost savings from split loads. Therefore, 12988, Civil Justice Reform. These must be recorded using a scale equipped the prohibition on split loads should actions are not intended to have a with a printing device, and such printed have little or no net monetary retroactive effect. This rule will not pre- weights must be retained as part of the consequence for live poultry dealers. empt State or local laws, regulations, or person or firm’s business records to Swine contractors may incur some policies, unless they present an substantiate settlement on each additional cost to comply with these irreconcilable conflict with the transaction. In instances where the requirements but we expect the costs to amendments. The provisions of these weight values are automatically be minor and to be outweighed by the amendments will not require recorded directly on the account of benefits of helping ensure proper administrative procedures be exhausted purchase, account of sale, or other basic weighing and, ultimately, accurate prior to judicial challenges. transaction record, this record may payment for the livestock. Paperwork Reduction Act serve in place of a scale ticket. Scale Other changes resulting from these tickets or other basic transaction records proposed amendments should be These proposed amendments do not issued under this section must show: inconsequential from a monetary contain new information collection (1) The name and location of the standpoint. requirements or changes to existing agency performing the weighing service; information collection requirements Executive Order 12866 and Regulatory (2) The date of the weighing; subject to the Paperwork Reduction Act (3) The name of the buyer and seller Flexibility Act of 1995 (44 U.S.C. 3501, et seq.). or consignor, or a designation by which The Office of Management and Budget E-Government Act Compliance they may be readily identified; designated this rule as not significant (4) The number of head; for the purposes of Executive Order GIPSA is committed to complying (5) Kind of livestock; 12866. with the E-Government Act, to promote (6) Actual weight of each draft of We have determined that these the use of the Internet and other livestock; and proposed amendments would not have information technologies to provide (7) The name, initials, or a significant economic impact on a increased opportunities for citizen identification number of the person who substantial number of small entities as access to Government information and weighed the livestock, or if required by defined in the Regulatory Flexibility Act services, and for other purposes. State law, the signature of the weigher.

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(c) Poultry. When live poultry is grower by vehicle or trailer g. Add paragraph (d) (3); weighed for the purpose of purchase, compartment number and seal number, h. Remove paragraph (e) (2) and sale, acquisition, or settlement by a live if applicable; redesignate paragraphs (e)(3) and (4) as poultry dealer, the scale ticket or other (10) Whether the driver was on or off paragraphs (e)(2) and (3). basic transaction record must show: the truck at the time of weighing, if § 201.108–1 Instructions for weighing live (1) The name of the agency applicable; and poultry or feed. performing the weighing service; (11) The license number or other Live poultry dealers who operate (2) The name of the live poultry identification numbers on the truck and scales on which live poultry or feed is dealer; trailer, if weighed together, or trailer if weighed for purposes of purchase, sale, (3) The name and address of the only the trailer is weighed, if applicable. acquisition, or settlement are grower or seller, and purchaser; 3. Revise § 201.76 to read as follows: (4) The name, initials, or responsible for the accurate weighing of identification number of the person who § 201.76 Reweighing. such poultry or feed. * * * (a) Balancing the empty scale. (1) The weighed the poultry, or if required by Stockyard owners, market agencies, scale shall be maintained in zero State law, the signature of the weigher; dealers, packers, swine contractors and balance at all times. The empty scale (5) The location of the scale; live poultry dealers must reweigh (6) The zero balance for both the gross livestock, livestock carcasses, and live shall be balanced each day before weight and tare weight; poultry or feed on request of any weighing begins and thereafter its zero (7) The date and time zero balance authorized representative of the balance shall be verified before any was determined; Secretary. poultry or feed is weighed. The time (8) The gross weight, tare weight, and 4. Revise § 201.82 to read as follows: and date the empty scale is balanced or net weight; its zero balance verified must be (9) The date and time gross weight § 201.82 Care and promptness in weighing mechanically printed on the scale ticket and handling livestock and live poultry. and tare weight are determined; or other basic transaction record. In (10) The number of poultry weighed; (a) Each stockyard owner, market addition, the zero balance of the scale (11) The weather conditions; agency, dealer, packer, swine contractor shall be verified whenever a weigher (12) Whether the driver was on or off and live poultry dealer must exercise resumes weighing duties after an the truck at the time of weighing, if reasonable care and promptness with absence from the scale. applicable; and respect to loading, transporting, * * * * * (13) The license number or other holding, yarding, feeding, watering, (c) * * * identification numbers on the truck and weighing, or otherwise handling (1) * * * trailer, if weighed together, or trailer if livestock, or live poultry to prevent (v) A feed hopper attached to an only the trailer is weighed; provided, waste of feed, shrinkage, injury, death or electronic digital scale must be empty of that when live poultry is weighed on a other avoidable loss. feed and the electronic digital scale scale other than a vehicle scale, the (b) Whenever live poultry is obtained must be balanced at zero prior to first scale ticket or other basic transaction under a poultry growing arrangement weighment for each grower or per record need not show the information and the weight of the live poultry is a truckload, whichever is applicable. The specified in paragraphs (c)(11) and factor in calculating payment to the date and time the empty hopper scale is (c)(12) of this section. grower, the poultry must be transported balanced or its zero balance verified (d) Feed. Whenever feed is weighed promptly after loading. The process of must be mechanically printed on the and the weight of the feed is a factor in obtaining the gross weight must scale ticket or other permanent record determining payment or settlement to a commence immediately upon arrival at that must be attached to the grower’s livestock producer or poultry grower, the processing plant, holding yard, or copy of the scale ticket. Further, the the scale ticket or other basic other scale normally used for such hopper must be empty and balanced at transaction record must show: purpose. This process, which includes zero prior to each weighment. (1) The name of the agency but is not limited to fueling, uncoupling (vi) An onboard weighing system performing the weighing service, or the the trailer, changing the road tractor to must be level and locked in position name and location of the firm a yard tractor or weighing the trailer and zero balanced prior to weighing. responsible for supplying the feed; only, must be conducted without delay; The date and time the onboard scale is (2) The name and address of the specifically, the time period between balanced or its zero balance verified livestock producer or poultry grower; arrival and completion of the weighing must be mechanically printed on the (3) The name, initials or identification process must not exceed thirty (30) scale ticket or other permanent record number of the person who weighed the minutes. that must be attached to the grower’s feed, or if required by State law, the (c) Live poultry dealers must not copy of the scale ticket. When more signature of the weigher; place poultry from multiple growers on than one grower’s feed is weighed, the (4) The location of the scale; a single live poultry transport trailer or proceeding grower’s gross weight can be (5) The zero balance for both the gross other live poultry transport equipment, used for the next grower’s tare weight, and tare, when applicable; creating what is commonly referred to and can be repeated until the unit is (6) The date and time zero balance as a ‘‘split load.’’ full. was determined, when applicable; 5. Amend § 201.108–1 to: * * * * * (7) The gross weight, tare weight, and a. Revise the heading; (d) * * * net weight of each lot assigned to an b. Revise the first sentence of the (3) When returned feed from a individual producer or grower, if introductory text; contract poultry grower is picked up applicable; c. Revise paragraph (a)(1); and weighed on an onboard weighing (8) The date and time gross weight d. Remove paragraph (a)(7); system, the weight of the feed must be and, if applicable, tare weight, are e. Remove the word ‘‘sensitiveness’’ recorded and a ticket printed. That determined; and add in its place the word weight must be used as the tare weight (9) The identification of each lot ‘‘sensitivity’’ in (b)(5); when feed from another contract poultry assigned to an individual producer or f. Add paragraphs (c) (1) (v) and (vi); grower is picked up on the same load.

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The procedure must be followed each provides text and image files of NRC’s this AD to prevent failure of an entry or time another grower’s feed is added to public documents. For more service door to open fully in the event the load. information, contact the NRC Public of an emergency evacuation, which * * * * * Document Room (PDR) Reference staff could impede exit from the airplane. at 1–800–397–4209, (301) 415–4737, or This condition could result in injury to James E. Link, by e-mail to [email protected]. passengers or crewmembers. Administrator, Grain Inspection, Packers and FOR FURTHER INFORMATION CONTACT: DATES: We must receive comments on Stockyards Administration. Michael T. Lesar, Chief, Rules, this proposed AD by March 27, 2008. [FR Doc. 08–577 Filed 2–8–08; 8:45 am] Directives and Editing Branch, Division ADDRESSES: You may send comments by BILLING CODE 3410–KD–P of Administrative Services, Office of any of the following methods: Administration, U.S. Nuclear Regulatory • Federal eRulemaking Portal: Go to Commission, Washington, DC 20555. http://www.regulations.gov. Follow the NUCLEAR REGULATORY Telephone: 301–415–7163, or Toll Free: instructions for submitting comments. COMMISSION 1–800–368–5642, or by e-mail at • Fax: 202–493–2251. [email protected]. • Mail: U.S. Department of 10 CFR Part 50 Dated at Rockville, Maryland, this 5th day Transportation, Docket Operations, M– [Docket No. PRM–50–57] of February 2008. 30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue, SE., North Carolina Utilities Commission For the Nuclear Regulatory Commission. Annette L. Vietti-Cook, Washington, DC 20590. Public Staff; Withdrawal of Petition for • Hand Delivery: U.S. Department of Rulemaking Secretary of the Commission. Transportation, Docket Operations, M– [FR Doc. E8–2481 Filed 2–8–08; 8:45 am] AGENCY: Nuclear Regulatory 30, West Building Ground Floor, Room BILLING CODE 7590–01–P Commission. W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. ACTION: Petition for rulemaking; withdrawal. and 5 p.m., Monday through Friday, DEPARTMENT OF TRANSPORTATION except Federal holidays. SUMMARY: The Nuclear Regulatory For service information identified in Commission (NRC) is withdrawing, at Federal Aviation Administration this AD, contact Boeing Commercial the petitioner’s request, a petition for Airplanes, P.O. Box 3707, Seattle, rulemaking (PRM–50–57) (57 FR 2059; 14 CFR Part 39 Washington 98124–2207. January 17, 1992) filed by the North [Docket No. FAA–2008–0150; Directorate Examining the AD Docket Carolina Utilities Commission Public Identifier 2007–NM–325–AD] Staff (petitioner). The petitioner You may examine the AD docket on requested that the Commission amend RIN 2120–AA64 the Internet at http:// www.regulations.gov; or in person at the its regulations to substantially reduce or Airworthiness Directives; Boeing eliminate insurance requirements for Docket Management Facility between 9 Model 767–200, –300, and –400ER a.m. and 5 p.m., Monday through nuclear power reactors when all the Series Airplanes nuclear reactors on a reactor station site Friday, except Federal holidays. The AD have been shut down or are awaiting AGENCY: Federal Aviation docket contains this proposed AD, the decommissioning, and all nuclear fuel Administration (FAA), Department of regulatory evaluation, any comments has been removed from the reactor site. Transportation (DOT). received, and other information. The street address for the Docket Office ADDRESSES: A copy of the petitioner’s ACTION: Notice of proposed rulemaking (telephone 800–647–5527) is in the email submittal, dated October 29, 2007, (NPRM). requesting withdrawal of the petition is ADDRESSES section. Comments will be available for public inspection, or SUMMARY: The FAA proposes to available in the AD docket shortly after copying for a fee, at the NRC’s Public supersede an existing airworthiness receipt. Document Room, One White Flint directive (AD) that applies to certain FOR FURTHER INFORMATION CONTACT: North, 11555 Rockville Pike, Room Boeing Model 767 series airplanes. The Keith Ladderud, Aerospace Engineer, O1F21, Rockville, Maryland. existing AD currently requires a one- Cabin Safety and Environmental Single copies of the petitioner’s email time inspection for missing, damaged, Systems Branch, ANM–150S, FAA, submission may be obtained free of or incorrectly installed parts in the Seattle Aircraft Certification Office, charge by writing to Michael T. Lesar, separation link assembly on the 1601 Lind Avenue, SW., Renton, Chief, Rules, Directives and Editing deployment bar of the emergency escape Washington 98057–3356; telephone Branch, Division of Administrative system on the entry or service door, and (425) 917–6435; fax (425) 917–6590. Services, Office of Administration, U.S. installation of new parts if necessary. SUPPLEMENTARY INFORMATION: Nuclear Regulatory Commission, This proposed AD would require Washington, DC 20555. replacing the separation link assembly Comments Invited Documents created or received at the on the applicable entry and service We invite you to send any written NRC after November 1, 1999, are also doors with an improved separation link relevant data, views, or arguments about available electronically at the NRC’s assembly, and related investigative and this proposed AD. Send your comments Public Electronic Reading Room on the corrective actions if necessary. This to an address listed under the Internet at http://www.nrc.gov/NRC/ proposed AD would also remove certain ADDRESSES section. Include ‘‘Docket No. ADAMS/index.html. For the petitioner’s airplanes from the applicability. This FAA–2008–0150; Directorate Identifier e-mail the accession number is proposed AD results from reports that 2007–NM–325–AD’’ at the beginning of ML080320147. From this site, the public entry and service doors did not open your comments. We specifically invite can gain entry into the NRC’s fully during deployment of emergency comments on the overall regulatory, Agencywide Document Access and escape slides, and additional reports of economic, environmental, and energy Management System (ADAMS) that missing snap rings. We are proposing aspects of this proposed AD. We will

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consider all comments received by the link assembly having a snap ring with promoting safe flight of civil aircraft in closing date and may amend this an improved separation link assembly air commerce by prescribing regulations proposed AD because of those secured with a nut and washer, on the for practices, methods, and procedures comments. deployment bar of the emergency escape the Administrator finds necessary for We will post all comments we system on the applicable entry and safety in air commerce. This regulation receive, without change, to http:// service doors. The service bulletin also is within the scope of that authority www.regulations.gov, including any describes procedures for doing related because it addresses an unsafe condition personal information you provide. We investigative and corrective actions if that is likely to exist or develop on will also post a report summarizing each necessary. The related investigative products identified in this rulemaking substantive verbal contact we receive actions include doing a general visual action. about this proposed AD. inspection of the separation link Regulatory Findings Discussion housing assembly for worn primer around the assembly, and inspecting the We have determined that this On December 21, 2001, we issued spring in the separation link housing to proposed AD would not have federalism AD–2001–26–19, amendment 39–12585 determine the spring tolerance. The implications under Executive Order (67 FR 265, January 3, 2002, for certain corrective action includes applying two 13132. This proposed AD would not Boeing Model 767 series airplanes. That coats of a certain primer if the have a substantial direct effect on the AD requires a one-time inspection for separation link housing assembly is States, on the relationship between the missing, damaged, or incorrectly worn, and replacing any spring that national Government and the States, or installed parts in the separation link does not fall within a certain tolerance on the distribution of power and assembly on the deployment bar of the with a new spring. Accomplishing the responsibilities among the various emergency escape system on the entry actions specified in the service levels of government. or service door, and installation of new information is intended to adequately For the reasons discussed above, I parts if necessary. That AD resulted address the unsafe condition. from reports that entry and service certify that the proposed regulation: doors did not open fully during FAA’s Determination and Requirements 1. Is not a ‘‘significant regulatory deployment of emergency escape slides of the Proposed AD action’’ under Executive Order 12866; on several Boeing Model 767 series We have evaluated all pertinent 2. Is not a ‘‘significant rule’’ under the airplanes. We issued that AD to prevent information and identified an unsafe DOT Regulatory Policies and Procedures failure of an entry or service door to condition that is likely to develop on (44 FR 11034, February 26, 1979); and open fully in the event of an emergency other airplanes of the same type design. 3. Will not have a significant evacuation, which could impede exit For this reason, we are proposing this economic impact, positive or negative, from the airplane. This condition could AD, which would supersede AD–2001– on a substantial number of small entities result in injury to passengers or 26–19. This proposed AD would require under the criteria of the Regulatory crewmembers. accomplishing the actions specified in Flexibility Act. Actions Since Existing AD Was Issued the service information described We prepared a regulatory evaluation previously. This proposed AD would of the estimated costs to comply with Since we issued AD–2001–26–19, we also remove Model 767–300F series this proposed AD and placed it in the have received additional reports of airplanes from the applicability. AD docket. See the ADDRESSES section missing snap rings, which are used for Costs of Compliance for a location to examine the regulatory securing the separation link assembly. evaluation. Investigation revealed that the snap There are about 1,225 airplanes of the rings fell off after they were possibly affected design in the worldwide fleet. List of Subjects in 14 CFR Part 39 damaged during the inspection of the This proposed AD would affect about Air transportation, Aircraft, Aviation separation link assembly as required by 355 airplanes of U.S. registry. The new safety, Safety. paragraph (a) of AD–2001–26–19. As a proposed actions would take up to result, the manufacturer has developed about 6 work hours per airplane, at an The Proposed Amendment a new corrective action that replaces the average labor rate of $80 per work hour. Accordingly, under the authority snap rings with nuts and washers. Required parts would cost up to about delegated to me by the Administrator, Therefore, we have determined that the $10,671 per airplane. Based on these the FAA proposes to amend 14 CFR part existing separation link assembly must figures, the estimated cost of the new 39 as follows: be secured with a nut and washer actions specified in this proposed AD instead of a snap ring to adequately for U.S. operators is $3,958,605, or PART 39—AIRWORTHINESS address the unsafe condition. This $11,151 per airplane. DIRECTIVES replacement would eliminate the need for inspecting the separation link Authority for This Rulemaking 1. The authority citation for part 39 assembly. We have also removed Model Title 49 of the United States Code continues to read as follows: 767–300F series airplanes from the specifies the FAA’s authority to issue Authority: 49 U.S.C. 106(g), 40113, 44701. applicability of this proposed AD, since rules on aviation safety. Subtitle I, those airplanes are not equipped with Section 106, describes the authority of § 39.13 [Amended] the affected escape slides. the FAA Administrator. Subtitle VII, 2. The Federal Aviation Aviation Programs, describes in more Relevant Service Information Administration (FAA) amends § 39.13 detail the scope of the Agency’s by removing amendment 39–12585 (67 We have reviewed Boeing Special authority. FR 265, January 3, 2002) and adding the Attention Service Bulletin 767–25– We are issuing this rulemaking under following new airworthiness directive 0428, dated August 23, 2007, for Model the authority described in Subtitle VII, (AD): 767–200, –300, and –400ER series Part A, Subpart III, Section 44701, airplanes. The service bulletin describes ‘‘General requirements.’’ Under that Boeing: Docket No. FAA–2008–0150; procedures for replacing the separation section, Congress charges the FAA with Directorate Identifier 2007–NM–325–AD.

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Comments Due Date DEPARTMENT OF HEALTH AND Docket No(s). and Regulatory (a) The FAA must receive comments on HUMAN SERVICES Information Number (RIN) (if a RIN this AD action by March 27, 2008. number has been assigned) for this Food and Drug Administration rulemaking. All comments received may Affected ADs be posted without change to http:// (b) This AD supersedes AD 2001–26–19. 21 CFR Part 133 www.regulations.gov, including any personal information provided. For Applicability [Docket No. FDA–2008–P–0086] (formerly Docket No. 2000P–0586) additional information on submitting (c) This AD applies to Boeing Model 767– comments, see the ‘‘Comments’’ heading 200, –300, and –400ER series airplanes, Cheeses and Related Cheese of the SUPPLEMENTARY INFORMATION certificated in any category, as identified in Products; Proposal to Permit the Use section of this document. Boeing Special Attention Service Bulletin of Ultrafiltered Milk; Extension of the Docket: For access to the docket to 767–25–0428, dated August 23, 2007. Comment Period read background documents or Unsafe Condition comments received, go to http:// AGENCY: Food and Drug Administration, www.regulations.gov and insert the (d) This AD results from reports that entry HHS. docket number(s), found in brackets in and service doors did not open fully during ACTION: Proposed rule; extension of the the heading of this document, into the deployment of emergency escape slides, and comment period. ‘‘Search’’ box and follow the prompts additional reports of missing snap rings. We and/or go to the Division of Dockets are issuing this AD to prevent failure of an SUMMARY: The Food and Drug Management, 5630 Fishers Lane, rm. entry or service door to open fully in the Administration (FDA) is extending the 1061, Rockville, MD 20852. event of an emergency evacuation, which comment period until April 11, 2008, FOR FURTHER INFORMATION CONTACT: Ritu could impede exit from the airplane. This for a proposed rule that was published Nalubola, Center for Food Safety and condition could result in injury to passengers in the Federal Register of October 19, Applied Nutrition (HFS–820), Food and or crewmembers. 2005 (70 FR 60751). FDA issued a Drug Administration, 5100 Paint Branch Federal Register notice to reopen the Compliance Pkwy., College Park, MD 20740, 301– comment period on this proposal on (e) You are responsible for having the 436–2371. December 11, 2007 (72 FR 70251), to actions required by this AD performed within SUPPLEMENTARY INFORMATION: the compliance times specified, unless the seek further comment on only two actions have already been done. specific issues raised by the comments I. Background concerning the proposed ingredient In the Federal Register of October 19, Replacement declaration. The agency is extending 2005 (70 FR 60751), FDA proposed to (f) Within 48 months after the effective this comment period in response to a amend the definitions of ‘‘milk’’ and date of this AD, replace the separation link request to give interested parties ‘‘nonfat’’ milk in § 133.3 (21 CFR 133.3) assembly on the deployment bar of the additional time to provide the for cheeses and related cheese products emergency escape system on all the information requested by FDA in that to: (1) Provide for ultrafiltration of milk applicable entry and service doors with an notice. and nonfat milk; (2) define UF milk and improved separation link assembly, and do DATES: Submit written or electronic UF nonfat milk as raw or pasteurized all the applicable related investigative and comments by April 11, 2008. milk or nonfat milk that is passed over corrective actions, by accomplishing all of ADDRESSES: You may submit comments, one or more semipermeable membranes the applicable actions specified in the to partially remove water, lactose, Accomplishment Instructions of Boeing identified by Docket No. FDA–2008–P– 0086, by any of the following methods: minerals, and water-soluble vitamins Special Attention Service Bulletin 767–25– without altering the casein-to-whey 0428, dated August 23, 2007. Electronic Submissions Submit electronic comments in the protein ratio of the milk or nonfat milk Alternative Methods of Compliance following way: and resulting in a liquid product; and (AMOCs) • Federal eRulemaking Portal: http:// (3) require that such treated milk be (g)(1) The Manager, Seattle Aircraft www.regulations.gov. Follow the declared in the ingredient statement of Certification Office, Transport Airplane instructions for submitting comments. the finished food as ‘‘ultrafiltered milk’’ Directorate, FAA, has the authority to Written Submissions and ‘‘ultrafiltered nonfat milk,’’ approve AMOCs for this AD, if requested in Submit written submissions in the respectively. accordance with the procedures found in 14 following ways: The agency received about 24 • CFR 39.19. FAX: 301–827–6870. responses, each containing one or more • (2) To request a different method of Mail/Hand delivery/Courier [For comments to the 2005 proposal. Most compliance or a different compliance time paper, disk, or CD–ROM submissions]: comments supported the proposed use for this AD, follow the procedures in 14 CFR Division of Dockets Management (HFA– of fluid UF milk in standardized cheeses 39.19. Before using any approved AMOC on 305), Food and Drug Administration, and related cheese products and several any airplane to which the AMOC applies, 5630 Fishers Lane, rm. 1061, Rockville, comments encouraged the agency to notify your appropriate principal inspector MD 20852. adopt the definition of fluid UF milk as (PI) in the FAA Flight Standards District To ensure more timely processing of proposed. However, although they did Office (FSDO), or lacking a PI, your local comments, FDA is no longer accepting not disagree that fluid UF milk is FSDO. comments submitted to the agency by e- significantly different from ‘‘milk,’’ mail. FDA encourages you to continue Issued in Renton, Washington, on January several comments opposed the proposed to submit electronic comments by using 31, 2008. provision to require fluid UF milk or the Federal eRulemaking Portal, as fluid UF nonfat milk to be declared as Ali Bahrami, described previously, in the ADDRESSES ‘‘ultrafiltered milk’’ or ‘‘ultrafiltered Manager, Transport Airplane Directorate, portion of this document under nonfat milk,’’ respectively. They cited Aircraft Certification Service. Electronic Submissions. several reasons for their opposition. [FR Doc. 08–571 Filed 2–8–08; 8:45 am] Instructions: All submissions received FDA reopened the comment period on BILLING CODE 4910–13–P must include the agency name and the proposed rule on December 11, 2007

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(72 FR 70251) to seek public comment DEPARTMENT OF LABOR Washington, DC, may be delayed. only with respect to two issues raised in Therefore, in order to ensure that the comments that opposed the 29 CFR Part 29 comments receive full consideration, the Department encourages the public to proposed provision to require fluid UF RIN 1205–AB50 milk or fluid UF nonfat milk to be submit comments via the Internet as declared as ‘‘ultrafiltered milk’’ or Apprenticeship Programs, Labor indicated above. ‘‘ultrafiltered nonfat milk,’’ respectively: Standards for Registration, Docket: The Department will make all (1) That, due to economic and logistical Amendment of Regulations; Extension the comments it receives available for burdens, it would be impracticable for of Time for Comments public inspection during normal cheese manufacturers to comply with business hours at the above address. If AGENCY: Employment and Training the labeling requirement; and (2) that you need assistance to review the Administration, Labor. comments, the Department will provide the proposed provision to declare fluid ACTION: you with appropriate aids such as UF milk as ‘‘ultrafiltered milk’’ would Proposed rule; extension of comment period. readers or print magnifiers. The be misleading to consumers in that Department will make copies of the consumers incorrectly believe that SUMMARY: This document informs the proposed rule available, upon request, cheeses that declare ‘‘ultrafiltered milk’’ public that the comment period for the in large print or electronic file on as an ingredient are different from those Notice of Proposed Rulemaking (NPRM) computer disk. The Department will cheeses that declare ‘‘milk’’ as an for Apprenticeship Programs, Labor consider providing the proposed rule in ingredient or ‘‘milk and ultrafiltered Standards for Registration, Amendment other formats upon request. To schedule milk’’ as ingredients. of Regulations, published December 13, an appointment to review the comments The agency has received a request for 2007 (72 FR 71020), has been extended and/or obtain the proposed rule in an an additional 60 days to respond to the for 30 days. alternate format, contact the office of questions FDA asked in its December DATES: To ensure consideration, Thomas M. Dowd at (202) 693–3700 11, 2007, document. The request comments must be in writing and must (VOICE) (this is not a toll-free number) expressed concern that the reopening of be received on or before March 12, 2008. or (877) 889–5627 (TTY/TDD). You may the comment period did not allow ADDRESSES: You may submit comments, also contact Mr. Dowd’s office at the adequate time to provide the data and identified by Regulatory Information address listed above. information that FDA requested. Number (RIN) 1205–AB50, by either one FOR FURTHER INFORMATION CONTACT: of the two following methods: Sherril Hurd, Acting Regulation Unit FDA has considered the request and • Federal e-Rulemaking Portal: Team Leader, Office of Policy is extending the request for an www.regulations.gov. Follow the Web Development and Research, U.S. additional 60 days until April 11, 2008. site instructions for submitting Department of Labor, 200 Constitution The agency believes that this additional comments. Avenue, NW., Room N–5641, time will provide interested parties • Mail/Hand Delivery/Courier: Washington, DC 20210; E-mail sufficient time to respond to the Written comments, disk, and CD-Rom [email protected]; Telephone (202) questions raised in the December 11, submissions may be mailed or delivered 693–3700 (this is not a toll-free 2007, docment. by hand delivery/courier to Thomas M. number). Individuals with hearing or speech II. Request for Comments Dowd, Administrator, Office of Policy Development and Research, U.S. impairments may access the telephone Interested persons may submit to the Department of Labor, 200 Constitution number above via TTY by calling the Division of Dockets Management (see Avenue, NW., Room N–5641, toll-free Federal Information Relay ADDRESSES) written or electronic Washington, DC 20210. Service at (800) 877–8339. comments regarding this document. Instructions: Please submit one copy SUPPLEMENTARY INFORMATION: The Submit a single copy of electronic of your comments by only one method. Department is extending by 30 days, the comments or two paper copies of any All submissions received must include comment period for the NPRM mailed comments, except that the agency name, as well as RIN 1205- proposing revisions to the individuals may submit one paper copy. AB50. apprenticeship regulations published on Comments are to be identified with the Please be advised that the Department December 13, 2007 (72 FR 71020). docket number found in brackets in the of Labor (Department) will post all Regulations that implement the heading of this document. Received comments received on National Apprenticeship Act at Title 29 comments may be seen in the Division www.regulations.gov without making Code of Federal Regulations (CFR) part of Dockets Management between 9 a.m. any change to the comments, including 29 have not been updated since first any personal information provided. The promulgated in 1977. These regulations and 4 p.m., Monday through Friday. www.regulations.gov Web site is the establish, for certain Federal purposes, Please note that on January 15, 2008, Federal e-rulemaking portal and all labor standards, policies and procedures the FDA Web site transitioned to the comments posted there are available for the registration, cancellation and Federal Dockets Management System and accessible to the public. Therefore, deregistration of apprenticeship (FDMS). FDMS is a Government-wide, the Department recommends that programs, and apprenticeship electronic docket management system. commenters safeguard their personal agreements. Part 29 also provides for the Electronic submissions will be accepted information such as Social Security recognition of a State Apprenticeship by FDA through FDMS only. Numbers, personal addresses, telephone Agency (SAA) as an agency authorized Dated: February 6, 2008. numbers, and e-mail addresses included to register local apprenticeship in their comments. It is the programs for Federal purposes, and for Jeffrey Shuren, responsibility of the commenter to the revocation of such recognition. On Assistant Commissioner for Policy. safeguard his or her information. December 13, 2007, the Department [FR Doc. E8–2454 Filed 2–8–08; 8:45 am] Also, please note that due to security published in the Federal Register BILLING CODE 4160–01–S concerns, postal mail delivery in proposed revisions to update 29 CFR

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part 29, to ensure that the National interest to extend the comment period FOR FURTHER INFORMATION CONTACT: Registered Apprenticeship System has by 30 days. This document extends the Rolanda F. Smith, Media Bureau, (202) the necessary tools and flexibility to comment period through March 12, 418–2180. keep pace with changes in the economy, 2008. SUPPLEMENTARY INFORMATION: This is a technological advances, and Douglas F. Small, synopsis of the Commission’s Report corresponding workforce challenges that and Order, MB Docket No. 04–134, have occurred over the past three Deputy Assistant Secretary, Employment and Training Administration. adopted January 16, 2008, and released decades. In particular, the proposed rule January 18, 2008. The full text of this updates the procedures for [FR Doc. E8–2452 Filed 2–8–08; 8:45 am] BILLING CODE 4510–FR–P Commission decision is available for apprenticeship program registration, inspection and copying during regular adds requirements for monitoring of business hours at the FCC’s Reference program performance, and clarifies the Information Center, Portals II, 445 Department’s role as manager of the FEDERAL COMMUNICATIONS Twelfth Street, SW., Room CY–A257, National Apprenticeship System. In COMMISSION Washington, DC 20554. The complete addition, the proposed rule incorporates text of this decision may also be 47 CFR Part 73 gender neutral terms and expands the purchased from the Commission’s variety of media that may be used in the [DA 08–127; MB Docket No. 04–134; RM– duplicating contractor, Best Copy and delivery of related technical instruction. 10948] Printing, Inc., 445 12th Street, SW., Such revisions will enable the Room CY–B402, Washington, DC, Department to promote apprenticeship Radio Broadcasting Services; 20054, telephone 1–800–378–3160 or opportunity in the 21st century while Toquerville, UT http://www.BCPIWEB.com. (The continuing to safeguard the welfare of Commission will not send a copy of this AGENCY: Federal Communications apprentices. Report and Order pursuant to the Commission. The Department published its notice Congressional Review Act, see 5 U.S.C. of proposed rulemaking in the Federal ACTION: Proposed rule; dismissal. 801(a)(1)(A), because the proposal was Register of December 13, 2007 (FR Doc. dismissed.) E7–24178) at 72 FR 71020. The notice SUMMARY: The Audio Division dismisses invited interested persons to submit a Petition for Rule Making filed by List of Subjects in 47 CFR Part 73 Calvary Chapel of St. George requesting written comments on the proposed rule Radio, Radio broadcasting. on or before February 11, 2008. The the reservation of vacant Channel 280C Department received a number of at Toquerville, Utah for noncommercial Federal Communications Commission. requests for an extension of the educational use. John A. Karousos, comment period. After balancing the ADDRESSES: Secretary, Federal Assistant Chief, Audio Division, Media interests of timeliness and public Communications Commission, 445 Bureau. participation, the Department has Twelfth Street, SW., Washington, DC [FR Doc. E8–2462 Filed 2–8–08; 8:45 am] determined that it is in the public’s 20554. BILLING CODE 6712–01–P

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Notices Federal Register Vol. 73, No. 28

Monday, February 11, 2008

This section of the FEDERAL REGISTER the collection of information unless it the Household Water Well System contains documents other than rules or displays a currently valid OMB control program. proposed rules that are applicable to the number. Need and Use of the Information: The public. Notices of hearings and investigations, grant applicants will provide Rural Utilities Service committee meetings, agency decisions and information to be collected as part of the rulings, delegations of authority, filing of Title: 7 CFR 1783, Revolving Fund petitions and applications and agency application and grant process through statements of organization and functions are Program. certain documentation, certifications, examples of documents appearing in this OMB Control Number: 0572–0138. and completed forms. Grant applicants section. Summary of Collection: Section 6002 must show that the project will provide of the Farm Security and Rural technical and financial assistance to Investment Act of 2002 amended the eligible individuals to remedy DEPARTMENT OF AGRICULTURE Consolidated Farm and Rural household well problems. The grant Development Act by adding a grant recipients will establish a revolving loan Submission for OMB Review; program that established the Revolving fund lending program to provide water Comment Request Fund Program (RFP) to assist well loans to individuals who own or February 6, 2008. communities with water or wastewater will own private wells in rural areas. The Department of Agriculture has systems. Qualified private non-profit The individual loan recipients may use submitted the following information organizations will receive RFP grant the funds to construct, refurbish, and collection requirement(s) to OMB for funds to establish a lending program for service their household well systems for review and clearance under the eligible entities. an existing home. Paperwork Reduction Act of 1995, Need and Use of the Information: Description of Respondents: Not-for- Public Law 104–13. Comments Non-profit organizations applying for profit institutions. regarding (a) whether the collection of the RFP grant(s) must submit an Number of Respondents: 10. information is necessary for the proper application package that includes an Frequency of Responses: Reporting: performance of the functions of the application form, narrative proposal On occasion. agency, including whether the (work plan), various other forms, Total Burden Hours: 1,112. certifications, and supplemental information will have practical utility; Charlene Parker, (b) the accuracy of the agency’s estimate information. The Rural Development State Offices and the Rural Utilities Departmental Information Collection of burden including the validity of the Clearance Officer. methodology and assumptions used; (c) Service National Office staff will use the information collected to determine [FR Doc. E8–2510 Filed 2–8–08; 8:45 am] ways to enhance the quality, utility and BILLING CODE 3410–15–P clarity of the information to be applicant eligibility, project feasibility, collected; (d) ways to minimize the and the applicant’s ability to meet the burden of the collection of information grant and regulatory requirements. DEPARTMENT OF THE INTERIOR on those who are to respond, including Grant recipients will set up a revolving through the use of appropriate loan fund to provide loans to finance Bureau of Land Management automated, electronic, mechanical, or predevelopment costs of water or other technological collection wastewater projects, or short-term small DEPARTMENT OF AGRICULTURE techniques or other forms of information capital projects not part of the regular technology should be addressed to: Desk operation and maintenance of current U.S. Forest Service Officer for Agriculture, Office of water and wastewater systems. Information and Regulatory Affairs, Description of Respondents: Not-for- [NM–220–5101–ER–G041] profit institutions. Office of Management and Budget Notice of Availability of Record of (OMB), Number of Respondents: 5. _ Decision for the Buckman Water OIRA [email protected] or Frequency of Responses: Reporting: Diversion Project Environmental fax (202) 395–5806 and to Departmental On occasion. Impact Statement Clearance Office, USDA, OCIO, Mail Total Burden Hours: 313. Stop 7602, Washington, DC 20250– AGENCIES: Bureau of Land Management, Rural Utilities Service 7602. Comments regarding these Interior and USDA Forest Service. information collections are best assured Title: 7 CFR 1776, Household Water ACTION: Notice of Availability. of having their full effect if received Well System Grant Program. within 30 days of this notification. OMB Control Number: 0572–0139. SUMMARY: In accordance with the Copies of the submission(s) may be Summary of Collection: The Rural National Environmental Policy Act obtained by calling (202) 720–8681. Utilities Service (RUS) is authorized by (NEPA) and the Federal Land Policy and An agency may not conduct or Section 306E of the Consolidated Farm Management Act (FLPMA), the Bureau sponsor a collection of information and Rural Development Act (7 U.S.C. of Land Management (BLM) Taos Field unless the collection of information 1926e) to administer and make grants to Office and USDA Forest Service (Forest displays a currently valid OMB control qualified private non-profit Service), Santa Fe National Forest number and the agency informs organizations which will use the funds announce the availability of the Record potential persons who are to respond to to establish lending programs from of Decision (ROD) for the Buckman the collection of information that such which individuals may borrow money Water Diversion Project located near persons are not required to respond to for household water well systems under Santa Fe, New Mexico.

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ADDRESSES: Copies of the ROD are The decisions made by the Forest your notice of appeal. Copies of the available upon request from the Field Service and the BLM, respectively, notice of appeal and petition for a stay Manager, Taos Field Office, Bureau of affect only those lands managed by each must also be submitted to the Interior Land Management, 226 Cruz Alta Road, agency. The decision related to National Board of Land Appeals and to the Taos, NM 87571, or via the internet on Forest System lands is subject to Regional Office of the Solicitor at the the following Web site: http:// administrative review (appeal) in same time the original documents are www.blm.gov/nm. Copies of the ROD accordance with 36 CFR 215 (June filed with this office. and approved Final Environmental 2003). A written notice of appeal— Dated: January 15, 2008. Impact Statement (FEIS) will also be clearly stating it is a notice of appeal Sam Des Georges, available at the following locations: being filed pursuant to 36 CFR 215.14— Forest Service, Santa Fe National Forest, must be filed within 45 days from the BLM—Taos Field Office Manager. 1474 Rodeo Road, Santa Fe, NM 87505, date of publication of legal notice of this Dated: January 15, 2008. and Forest Service, Espanola Ranger decision in the Albuquerque Journal. Steve Romero, District, 1710 North Riverside Dr., The publication date in the Acting Forest Supervisor, Santa Fe National Espanola, NM 87533. Albuquerque Journal, newspaper of Forest. FOR FURTHER INFORMATION CONTACT: Sam record, is the exclusive means for [FR Doc. E8–2305 Filed 2–8–08; 8:45 am] Des Georges, Field Office Manager, calculating the time to file an appeal. BILLING CODE 4310–FB–P Bureau of Land Management, Taos Field Those wishing to appeal this decision Office, 226 Cruz Alta Rd., Taos, NM should not rely upon dates or timeframe 87571, telephone—(505) 751–4713; or information provided by any other DEPARTMENT OF COMMERCE source. Individuals or organizations that Sanford Hurlocker, District Ranger, [Docket No. 080204117–8119–01] Forest Service, Espanola Ranger District, submitted substantive comments during P.O. Box 3307, Espanola, NM 87533; the comment period specified at 36 CFR Department of Commerce Pre-Award telephone—(505) 753–7331. Requests 215.6 may appeal this decision. The Notification Requirements for Grants for information may be submitted notice of appeal must meet the appeal and Cooperative Agreements electronically at http://www.blm.gov/ content requirements at 36 CFR 215.14. nm. An appeal must be filed (regular mail, AGENCY: Department of Commerce fax, e-mail, hand delivery, or express (DOC). SUPPLEMENTARY INFORMATION: The delivery) with the Appeal Deciding ACTION: Notice. Buckman Water Diversion Project (the Officer. Written appeals must be Project) is designed to address the submitted to: Deputy Regional Forester, SUMMARY: This notice revises and immediate need for accessing water Southwestern Region Appeal Deciding updates the Department of Commerce supplies for the Project Applicants. The Officer, 333 Broadway Blvd., SE., (DOC) Pre-Award Notification Forest Service and BLM are joint lead Albuquerque, NM 87102. Appeals may Requirements for Grants and agencies for this project, and the be faxed or e-mailed at Fax: (505) 842– Cooperative Agreements, as published Department of Interior, Bureau of 3173, and E-mail: appeals- in the Federal Register (66 FR 49917) on Reclamation, City of Santa Fe, and Santa [email protected]. October 1, 2001, as amended on October Fe County are cooperating agencies. The The Forest Service’s office business 30, 2002 (67 FR 66109) and on City of Santa Fe, Santa Fe County, and hours for those submitting hand- December 30, 2004 (69 FR 78389). This Las Campanas Limited Partnership are delivered appeals are: 8 a.m. to 4:30 announcement constitutes a the ‘‘Project Applicants.’’ p.m. Monday through Friday, excluding recompilation of the Department of The BLM’s and Forest Service’s holidays. Electronic comments must be Commerce pre-award requirements for decision is to authorize rights-of-way submitted in a format such as an e-mail grants and cooperative agreements, and easements to the Project Applicants message, plain text (.txt), rich text including all amendments and revisions so that they may construct, operate, and format (.rtf), Adobe (.pdf) and Word to date. maintain the road improvements, major (.doc) to appeals- DATES: facilities and associated infrastructure, These provisions are effective [email protected]. The appeal Feburary 11, 2008. and their locations as described in the must have an identifiable name attached FOR FURTHER INFORMATION CONTACT: Proposed Action. In addition, several or verification of identity will be Gary options have been selected for the required. A scanned signature may serve Johnson, Office of Acquisition proposed sediment facility and sand as verification on electronic appeals. Management, Telephone Number—202– disposal systems; and for a section of The decision related to BLM managed 482–1679. treated water pipeline. Power upgrades lands may be appealed to the Interior SUPPLEMENTARY INFORMATION: The DOC to service the proposed facilities are also Board of Land Appeals, Office of the is authorized to award grants and described in the Final Environmental Secretary, in accordance with the cooperative agreements under a wide Impact Statement (FEIS). regulations contained in 43 CFR range of programs that support This decision conforms to existing 2801.10(a). If an appeal is filed, the economic development; international laws and regulations, provides for notice of appeal must be filed with the trade; minority businesses; standards resource protection and mitigation, and Bureau of Land Management, Taos Field and technology; oceanic/atmospheric is consistent with the Santa Fe National Office, Field Office Manager, 226 Cruz services; and telecommunications and Forest Plan and the Taos Resource Alta Road, Taos, NM 87571, within 30 information. Management Plan. This decision is days of the date the notice of the It is the policy of the DOC to seek full based on a comparison of the potential decision appears in the Federal and open competition for award of environmental effects of the Proposed Register. If you wish to file a petition discretionary financial assistance funds Action, other alternatives considered in pursuant to 43 CFR 2801.10(b) for a stay whenever possible. Moreover, DOC the FEIS, and comments received during (suspension) of the effectiveness of this financial assistance must be awarded scoping and the 60-day public comment decision during the time that your through a merit-based review and period on the Draft Environmental appeal is being reviewed by the Board, selection process. Notices announcing Impact Statement. the petition for a stay must accompany the availability of Federal funds for new

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awards for each DOC competitive obtaining certification from lower tier applicants who have been recipients of financial assistance program will be applicants/bidders. financial assistance from the DOC for published in the Federal Register and 3. Pre-Award Screening of Applicant’s three or more consecutive years without posted on http://www.grants.gov by the and Recipient’s Management any adverse programmatic or audit sponsoring operating unit in the Capabilities, Financial Condition, and findings; and (3) applicants that are uniform format for an announcement of Present Responsibility. It is the policy of units of a State or local government or Federal Funding Opportunity (FFO) the DOC to make awards to applicants that are accredited colleges and mandated by the Office of Management and recipients that are competently universities. and Budget (OMB). These managed, responsible, financially (e) Individual Background Screening. announcements will reference or capable and committed to achieving the Unless an exemption applies, an include the DOC Pre-Award Notification objectives of the award(s) they receive. individual background screening will be Requirements identified in sections A Therefore, pre-award screening may performed by the OIG on key and B of this notice, and the program- include, but is not limited to, the individuals of organizational units specific information identified in following reviews: section C of this notice, and will follow (a) Past Performance. Unsatisfactory associated with the application at the the uniform format for announcements performance under prior Federal awards beginning of the award and at three year of funding opportunities as identified in may result in an application not being intervals thereafter for the life of the section D. considered for funding. award. The exemptions are: the This announcement provides notice (b) Credit Checks. A credit check will proposed award amount is $100,000 or of the DOC Pre-Award Notification be performed on individuals, for-profit, less; applicants are accredited colleges Requirements that apply to all DOC- and non-profit organizations. and universities; applicants are units of sponsored grant and cooperative (c) Delinquent Federal Debts. No a State or local government; applicants agreement programs and that may award of Federal funds shall be made to are economic development districts supplement those program an applicant that has an outstanding designated by EDA, including those announcements which make reference delinquent Federal debt until: entities whose designations are pending, to this notice. Some of the DOC general (1) The delinquent account is paid in and councils of governments; or the key provisions published herein contain, by full; individual(s) is/are elected officials of reference or substance, a summary of (2) A negotiated repayment schedule State and local governments who are the pertinent statutes or regulations is established and at least one payment serving in capacities other than their published in the U.S. Code (U.S.C.), is received; or elected capacities when applying for Federal Register, or Code of Federal (3) Other arrangements satisfactory to assistance. In addition, if there is a Regulations (CFR), or requirements the DOC are made. change in the status of the organization provided in Executive Orders, OMB Pursuant to 31 U.S.C. 3720B, unless and/or key individuals, or the program Circulars (circulars), or Assurances waived, the DOC is not permitted to officer, OIG, or Grants Officer believes (Forms SF–424B and SF–424D). This extend financial assistance in the form there is good reason to conduct a review notice does not intend to be a of a loan, loan guarantee, or loan sooner, a background screening may be derogation of, or amend, any statute, insurance to any person delinquent on requested more frequently. Individual regulation, Executive Order, circular, or a nontax debt owed to a Federal agency. background screenings are conducted to Standard Form. This prohibition does not apply to reveal if any key individuals associated Each individual award notice will disaster loans. with the applicant have been convicted complete and include the relevant Pursuant to 28 U.S.C. 3201(e), a of or are presently facing criminal analyses pursuant to the requirements debtor who has a judgment lien against charges (e.g., fraud, theft, perjury), or in Executive Order 12866, Executive the debtor’s property for a debt to the other matters which significantly reflect Order 13132, the Administrative United States shall not be eligible to on the applicant’s business integrity, receive any grant or loan which is made, Procedure Act, the Regulatory responsibility, or financial integrity. If insured, guaranteed, or financed Flexibility Act, and the Paperwork any of the conditions listed below in directly or indirectly by the United Reduction Act, as applicable. paragraphs (1), (2), or (3) occur, then the States or to receive funds directly from A. The following pre-award notice DOC reserves the right to take one or the Federal Government in any program, provisions will apply to all applicants more of the following actions: consider except funds to which the debtor is for and recipients of DOC grants and suspension/termination of an award entitled as beneficiary, until the cooperative agreements: immediately for cause; require the 1. Federal Policies and Procedures. judgment is paid in full or otherwise removal of any key individual from Applicants, recipients and subrecipients satisfied. The DOC sponsoring operating association with management of and/or are subject to all Federal laws and units may promulgate regulations to implementation of the award and Federal and DOC policies, regulations, allow for waiver of this restriction on and procedures applicable to Federal eligibility for such grants and require Grants Officer approval of financial assistance. cooperative agreements. personnel replacements; require the 2. Debarment, Suspension, Drug-Free (d) Financial Pre-Award Screening. recipient to make other changes as Workplace, and Lobbying Provisions. The DOC’s Office of Inspector General appropriate; and/or designate the All applicants must comply with the (OIG) performs pre-award screening recipient as high risk and amend the requirements of subpart C of 2 CFR part procedures to review an applicant’s award to assign special award 1326, ‘‘Nonprocurement Debarment and credit rating and related financial conditions, as appropriate, including Suspension,’’ 15 CFR part 29, information, the status of previous making changes with respect to the ‘‘Governmentwide Requirements for Federal audit findings and method of payment and/or financial Drug-Free Workplace (Financial recommendations for the applicant, and reporting requirements. Assistance)’’ (November 26, 2003, 68 FR other relevant data. The following three (1) A key individual fails to submit 66534), and 15 CFR part 28, ‘‘New categories of applicants are exempt from the required Form CD–346, Applicant Restrictions on Lobbying,’’ including this review: (1) Applicants for awards in for Funding Assistance within 30 days the submission of required forms and amounts of $100,000 or less; (2) of receipt of the award;

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(2) A key individual makes a false 7. False Statements. A false statement that a project may have on the statement or omits a material fact on the on an application is grounds for denial environment. Form CD–346; or or termination of an award, and/or (a) The National Environmental (3) The individual background possible punishment by a fine or Policy Act of 1969 (42 U.S.C. 4321 et screening reveals significant adverse imprisonment as provided in 18 U.S.C. seq.). Recipients of Federal assistance findings that reflect on the business 1001. are required to identify to the awarding integrity, responsibility, or financial 8. Application Forms. Unless the agency any impact an award will have integrity of the recipient and/or key individual programs specify differently on the quality of the human individual. in their Federal Register notice of environment, and assist the agency to (f) List of Parties Excluded from availability of funding and/or in the comply with the National Procurement and Nonprocurement Federal Funding Opportunity Environmental Policy Act, when the Programs. The Excluded Parties Listing announcement, the following forms, award activities remain subject to System (EPLS) maintained by the family of forms, and/or certifications are Federal authority and control. General Services Administration (GSA) required, as applicable, for DOC grants Applicants for assistance may be (found at http://www.epls.gov) that lists and cooperative agreements: OMB required to prepare environmental parties excluded from Federal Standard Forms (SF) SF–424, impact information as part of a procurement and nonprocurement Application for Federal Assistance; SF– proposal. programs will be checked to assure that 424A, Budget Information—Non- (b) Floodplain Management, an applicant is not debarred or Construction Programs; SF–424B, Executive Order 11988 and, Protection suspended on a government-wide basis Assurances—Non-Construction of Wetlands, Executive Order 11990, from receiving financial assistance. Programs; SF–424C, Budget May 24, 1977. Recipients must identify (g) Pre-Award Accounting System Information—Construction Programs; proposed actions located in Federally Surveys. The Grants Office, in SF–424D, Assurances—Construction defined floodplains and wetlands to cooperation with the OIG when Programs; SF–424 Family of Forms for enable the agency to make a appropriate, may require a pre-award Research and Related Programs; SF–424 determination whether there is an survey of the applicant’s financial alternative to minimize any potential management system in cases where the Short Organizational Family; SF–424 Individual Form Family; and SF–424 harm. recommended applicant has had no (c) Clean Air Act, Clean Water Act, Mandatory Family. In addition, prior Federal support, the operating unit and Executive Order 11738. Recipients Commerce Department (CD) Forms CD– has reason to question whether the must comply with the provisions of the 346, Applicant for Funding Assistance; financial management system meets Clean Air Act (42 U.S.C. 7401 et seq.), CD–511, Certification Regarding Federal financial management Clean Water Act (33 U.S.C. §§ 1251 et Lobbying; CD–512, Certification standards, or the applicant is being seq.), and Executive Order 11738. Regarding Lobbying—Lower-Tier considered for a high-risk designation. Recipients shall not use a facility that Covered Transactions; and SF–LLL, 4. No Obligation for Future Funding. EPA has placed on the Excluded Parties Disclosure of Lobbying Activities, will If an application is selected for funding, List System (EPLS) (http:// be used as appropriate. the DOC has no obligation to provide www.epls.gov) in performing any award any additional future funding in 9. Environmental Requirements. that is nonexempt under Subpart J of 2 connection with that award. Any Environmental impacts must be CFR part 1532. amendment of an award to increase considered by Federal decision makers (d) The Flood Disaster Protection Act funding or to extend the period of in their decisions whether or not to (1) of 1973 (42 U.S.C. 4002 et seq.). Flood performance is at the total discretion of approve a proposal for Federal insurance, when available, is required the DOC. assistance; (2) approve the proposal for Federally assisted construction or 5. Pre-Award Activities. If an with mitigation; or (3) approve a acquisition in flood-prone areas. applicant incurs any costs prior to different proposal/grant having less (e) The Endangered Species Act of receiving an award, it does so solely at adverse environmental impacts. Federal 1973, as amended (16 U.S.C. 1531 et its own risk of not being reimbursed by environmental laws require that the seq.). Recipients must identify any the Government. Notwithstanding any funding agency initiate a planning impact or activities that may involve a verbal or written assurance that may process with an early consideration of threatened or endangered species. have been received, there is no potential environmental impacts that Federal agencies have the responsibility obligation on the part of DOC to cover projects funded with Federal assistance for ensuring that a protected species or pre-award costs unless approved by the may have on the environment. habitat does not incur adverse effects Grants Officer as part of the terms when Applicants, recipients and subrecipients from actions under Federal assistance the award is made, or as authorized for must comply with all environmental awards, and for conducting the required awards that support research by 15 CFR standards, to include those prescribed reviews under the Endangered Species 14.25(e)(4). under the following statutes and Act, as applicable. 6. Freedom of Information Act (FOIA) Executive Orders, and shall identify to (f) The Coastal Zone Management Act, Disclosure. The FOIA (5 U.S.C. 552 and the awarding agency any impact the as amended (16 U.S.C. 1451 et seq.). DOC regulations at 15 CFR part 4) sets award may have on the environment. Funded projects must be consistent with forth the process and procedure by The failure to do so shall be grounds for a coastal state’s approved management which the DOC follows to make not selecting an application. In some program for the coastal zone. requested material, information, and cases, if additional information is (g) The Coastal Barriers Resources Act records publicly available. Unless required after an application is selected, (16 U.S.C. 3501 et seq.). Restrictions are prohibited by law and to the extent funds can be withheld by the Grants placed on Federal funding for actions required under the FOIA, contents of Officer under a special award condition within a Coastal Barrier System. applications, proposals, and other requiring the recipient to submit (h) The Wild and Scenic Rivers Act, information submitted by applicants additional environmental compliance as amended (16 U.S.C. 1271 et seq.). may be released in response to FOIA information sufficient to enable the DOC This Act applies to awards that may requests. to make an assessment on any impacts affect existing or proposed components

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of the National Wild and Scenic Rivers principles, which are incorporated by shared allowable costs. If actual system. reference in 15 CFR parts 14 and 24, are allowable costs are less than the total (i) The Safe Drinking Water Act of included in the DOC’s grants and approved budget, the Federal and non- 1974, as amended (42 U.S.C. 300f–j). cooperative agreements: OMB Circular Federal cost shares shall be calculated This Act precludes Federal assistance A–21 (2 CFR part 220), ‘‘Cost Principles by applying the approved Federal and for any project that the EPA determines for Educational Institutions’’; OMB non-Federal cost share ratios to actual may contaminate a sole source aquifer Circular A–87 (2 CFR part 225), ‘‘Cost allowable costs. If actual allowable costs so as to threaten public health. Principles for State, Local and Indian are greater than the total approved (j) The Resource Conservation and Tribal Governments’’; OMB Circular A– budget, the Federal share will not Recovery Act of 1976, as amended (42 122 (2 CFR part 230), ‘‘Cost Principles exceed the total Federal dollar amount U.S.C. 6901 et seq.). This act regulates for Nonprofit Organizations’’; and authorized by the award. the generation, transportation, Federal Acquisition Regulation subpart (b) The non-Federal share, whether in treatment, and disposal of hazardous 31.2, ‘‘Contracts with Commercial cash or in-kind, will be expected to be wastes, and also provides that recipients Organizations,’’ codified at 48 CFR 31.2. paid out at the same general rate as the of Federal funds give preference in their Applicable administrative requirements Federal share. Exceptions to this procurement programs to the purchase and cost principles are identified in requirement may be granted by the of recycled products pursuant to EPA each award and are incorporated by Grants Officer based on sufficient guidelines. reference into the award. Expenditures documentation demonstrating (k) The Comprehensive for any financial assistance award must previously determined plans for or later Environmental Response, be necessary to carry out the authorized commitment of cash or in-kind Compensation, and Liability Act of project and be consistent with the contributions. In any case, recipients 1980, as amended, the Superfund applicable cost principles. must meet the cost share commitment Amendments and Reauthorization Act 2. Award Payments. Advances will be over the life of the award. of 1986, and the Community limited to the minimum amounts 4. Budget Changes and Transfers Environmental Response Facilitation necessary to meet immediate Among Cost Categories. When the terms Act of 1992, as amended (42 U.S.C. 9601 disbursement needs, but in no case of an award allow the recipient to et seq.). These requirements address should advances exceed the amount of transfer funds among approved direct responsibilities for actual or threatened cash required for a 30-day period. Any cost categories, the transfer authority hazardous substance releases and advanced funds that are not disbursed does not authorize the recipient to environmental cleanup. There are also in a timely manner must be returned create new budget categories within an requirements regarding reporting and promptly to the DOC. Certain bureaus approved budget unless the Grants community involvement to ensure within the DOC use the Department of Officer has provided prior approval. In disclosure of the release or disposal of Treasury’s Automated Standard addition, the recipient will not be regulated substances and cleanup of Application for Payment (ASAP) authorized at any time to transfer hazards. system. In order to receive payments amounts budgeted for direct costs to the (l) Environmental Justice in Minority under ASAP, recipients will be required indirect costs line item or vice versa, Populations and Low Income to enroll electronically in the ASAP without written prior approval of the Populations, Executive Order 12898, system by providing their Federal Grants Officer. February 11, 1994. This Order identifies Awarding Agency with pertinent 5. Indirect Costs. and addresses adverse human health or information to begin the enrollment (a) Indirect costs will not be allowable environmental effects of programs, process, which allows them to use the charges against an award unless policies and activities on low income on-line and Voice Response System specifically included as a line item in and minority populations. (VRS) method of withdrawing funds the approved budget incorporated into 10. Limitation of Liability. In no event from their ASAP established accounts. It the award. (The term ‘‘indirect cost’’ has will the Department of Commerce be is the recipient’s responsibility to been replaced with the term ‘‘facilities responsible for proposal preparation ensure that its contact information is and administrative costs’’ under OMB costs if a program fails to receive correct. The funding agency must be Circular A–21 (2 CFR part 220), ‘‘Cost funding or is cancelled because of other provided a Point of Contact name, Principles for Educational agency priorities. The publication of an mailing address, e-mail address, Institutions.’’) announcement of funding availability telephone number, DUNS and TIN (b) Excess indirect costs may not be does not oblige the agency to award any numbers to commence the enrollment used to offset unallowable direct costs. specific project or to obligate any process. In order to be able to complete (c) If the recipient has not previously available funds. the enrollment process, the recipient established an indirect cost rate with a B. The following general provisions will need to identify a Head of Federal agency, the negotiation and will apply to all DOC grant and Organization, an Authorizing Official, approval of a rate will be subject to the cooperative agreement awards: and a Financial Officer. It is very procedures in the applicable cost 1. Administrative Requirements and important that the recipient’s banking principles and the following Cost Principles. The uniform data be linked to the funding agency’s subparagraphs: administrative requirements for all DOC Agency Location Code in order to (1) a. State, local, and Indian Tribal grants and cooperative agreements are ensure proper payment under an award. Governments; Educational Institutions; codified at 15 CFR part 14, ‘‘Uniform For additional information on this and Non-Profit Organizations (Non- Administrative Requirements for Grants requirement, prospective applicants Commercial Organizations). and Agreements with Institutions of should contact their Federal Awarding For those organizations for which the Higher Education, Hospitals, Other Non- Agency. DOC is cognizant or has oversight, the Profit, and Commercial Organizations,’’ 3. Federal and Non-Federal Cost DOC or its designee will either negotiate and at 15 CFR part 24, ‘‘Uniform Sharing. a fixed rate with carryforward Administrative Requirements for Grants (a) Awards that include Federal and provisions or, in some instances, limit and Agreements to State and Local non-Federal cost sharing will its review to evaluating the procedures Governments.’’ The following list of cost incorporate a budget consisting of described in the recipient’s cost

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allocation methodology plan. Indirect agreement or a copy of the transmittal reimbursement only, or the imposition cost rates and cost allocation letter submitted to the cognizant or of other special award conditions, methodology reviews are subject to oversight Federal agency requesting a suspension of any DOC active awards, future audits to determine actual negotiated rate agreement. and termination of any DOC active indirect costs. (5) If the recipient fails to submit the awards. b. Commercial Organizations. required documentation to the DOC 9. Prohibition Against Assignment by For commercial organizations, within 90 days of the award start date, the Recipient. Notwithstanding any ‘‘cognizant federal agency’’ is defined as the recipient may be precluded from other provision of an award, recipients the agency that provides the largest recovering any indirect costs under the may not transfer, pledge, mortgage, or dollar amount of negotiated contracts, award. If the DOC, oversight, or otherwise assign an award, or any including options. If the only federal cognizant Federal agency determines interest therein, or any claim arising funds received by a commercial there is a finding of good cause to thereunder, to any party or parties, organization are DOC award funds, then excuse the recipient’s delay in banks, trust companies, or other the DOC becomes the cognizant federal submitting the documentation, an financing or financial institutions agency for the purpose of indirect cost extension of the 90-day due date may be without the express written approval of negotiations. For those organizations for approved by the Grants Officer. the Grants Officer. which the DOC is cognizant, DOC or its (6) Regardless of any approved 10. Non-Discrimination designee will negotiate a fixed rate with indirect cost rate applicable to the Requirements. There are several Federal carry forward provisions for the award, the maximum dollar amount of statutes, regulations, Executive Orders, recipient. ‘‘Fixed rate’’ means an allocable indirect costs for which the and policies relating to indirect cost rate which has the same DOC will reimburse the recipient shall nondiscrimination. No person in the characteristics as a pre-determined rate, be the lesser of the line item amount for United States shall, on the grounds of except that the difference between the the Federal share of indirect costs race, color, national origin, handicap, estimated costs and the actual costs of contained in the approved budget of the religion, age, or sex, be excluded from the period covered by the rate is carried award, or the Federal share of the total participation in, be denied the benefits forward as an adjustment to the rate allocable indirect costs of the award of, or be subject to discrimination under computation of the subsequent period. based on the indirect cost rate approved any program or activity receiving DOC or its designee will negotiate by an oversight or cognizant Federal Federal financial assistance. These indirect cost rates using the cost agency and current at the time the cost requirements include but are not limited principles found in 48 CFR part 31, was incurred, provided the rate is to: ‘‘Contract Cost Principles and approved on or before the award end (a) Title VI of the Civil Rights Act of Procedures.’’ For guidance on how to date. 1964 (42 U.S.C. 2000d et seq.) and the 6. Tax Refunds. Refunds of FICA/ put an indirect cost plan together go to: DOC’s implementing regulations FUTA taxes received by a recipient http://www.dol.gov/oasm/programs/ published at 15 CFR part 8 prohibiting during or after an award period must be boc/costdeterminationguide/main.htm. discrimination on the grounds of race, refunded or credited to the DOC where (2) Within 90 days of the award start color, or national origin under programs the benefits were financed with Federal date, the recipient shall submit to the or activities receiving Federal financial funds under the award. Recipients are address listed below documentation assistance; required to contact the Grants Officer (b) Title IX of the Education (indirect cost proposal, cost allocation immediately upon receipt of these Amendments of 1972 (20 U.S.C. 1681 et plan, etc.) necessary to perform the refunds. Recipients are required to seq.) and the DOC’s implementing review. The recipient shall provide the refund portions of FICA/FUTA taxes regulations at 15 CFR part 8a Grants Officer with a copy of the determined to belong to the Federal prohibiting discrimination on the basis transmittal letter. Government, including refunds received of sex under Federally assisted Office of Acquisition Management, U.S. after the award end date. education programs or activities; Department of Commerce, 14th Street 7. Other Federal Awards with Similar (c) Section 504 of the Rehabilitation and Constitution Avenue, NW., Room Programmatic Activities. Recipients will Act of 1973, as amended (29 U.S.C. 794) 6054, Washington, DC 20230. be required to provide written and the DOC’s implementing (3) The recipient can use the fixed notification to the Federal Program regulations published at 15 CFR part 8b rate proposed in the indirect cost plan Officer and the Grants Officer in the prohibiting discrimination on the basis until such time as the DOC provides a event that, subsequent to receipt of the of handicap under any program or response to the submitted plan. Actual DOC award, other financial assistance is activity receiving or benefiting from indirect costs must be calculated received to support or fund any portion Federal assistance; annually and adjustments made through of the scope of work incorporated into (d) The Age Discrimination Act of the carryforward provision used in the DOC award. The DOC will not pay 1975, as amended (42 U.S.C. 6101 et calculating next year’s rate. This for costs that are funded by other seq.) and the DOC’s implementing calculation of actual indirect costs and sources. regulations published at 15 CFR part 20 the carryforward provision is subject to 8. Non-Compliance With Award prohibiting discrimination on the basis audit. Indirect cost rate proposals must Provisions. Failure to comply with any of age in programs or activities receiving be submitted annually. Organizations or all of the provisions of an award, or Federal financial assistance; that have previously established the requirements of this notice, may (e) The Americans with Disabilities indirect cost rates must submit a new have a negative impact on future Act of 1990 (42 U.S.C. 12101 et seq.) indirect cost proposal to the cognizant funding by the DOC and may be prohibiting discrimination on the basis agency within six months after the close considered grounds for any or all of the of disability under programs, activities, of each recipient’s fiscal year. following enforcement actions: and services provided or made available (4) When the DOC is not the oversight Establishment of an account receivable, by state and local governments or or cognizant Federal agency, the withholding payments under any DOC instrumentalities or agencies thereto, as recipient shall provide the Grants awards to the recipient, changing the well as public or private entities that Officer with a copy of a negotiated rate method of payment from advance to provide public transportation;

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(f) Title VIII of the Civil Rights Act of the project expiration date including the (a) Require the recipient to correct the 1968, as amended (42 U.S.C. 3601 et close-out period for the award. conditions. seq.), relating to nondiscrimination in (c) For 4-, or 5-year awards, an audit (b) Consider the recipient to be ‘‘high the sale, rental or financing of housing; is required within 90 days after the end risk’’ and unilaterally impose special (g) Parts II and III of Executive Order of the first year and third year, and award conditions to protect the Federal 11246, as amended by Executive Orders within 90 days from the project Government’s interest. 11375 and 12086 requiring Federally expiration date including the close-out (c) Suspend or terminate an active assisted construction contracts to period for the award. award. The recipient will be afforded include the nondiscrimination Some DOC programs have specific due process while effecting such provisions of sections 202 and 203 of audit guidelines that will be actions. that Executive Order and the incorporated into the award. When DOC (d) Require the removal of personnel Department of Labor’s regulations at 41 does not have a program-specific audit from association with the management CFR 60–1.4(b) implementing Executive guide available for the program, the of and/or implementation of the project Order 11246; auditor will follow the requirements for and require Grants Officer approval of (h) Executive Order 13166 (August 11, a program-specific audit as described in personnel replacements. 16. Competition and Codes of 2000), ‘‘Improving Access to Services OMB Circular A–133, l.235. The for Persons With Limited English Conduct. Recipient may include a line item in the (a) Pursuant to the certification in Proficiency,’’ and DOC policy guidance budget for the cost of the audit. issued on March 24, 2003 (68 FR 14180) Form SF–424B, paragraph 3, recipients 13. Policies and Procedures for must maintain written standards of to Federal financial assistance recipients Resolution of Audit-Related Debts. The on the Title VI prohibition against conduct to establish safeguards to DOC has established policies and national origin discrimination affecting prohibit employees from using their procedures for handling the resolution Limited English Proficient (LEP) positions for a purpose that constitutes and reconsideration of financial persons; and or presents the appearance of a personal (i) In recognition of the assistance audits which have resulted or organizational conflict of interest, or constitutionally-protected interest of in, or may result in, the establishment personal gain in the administration of religious organizations in making of a debt (account receivable) for this award and any subawards. religiously-motivated employment financial assistance awards. These (b) Recipients must maintain written decisions, Title VII of the Civil Rights policies and procedures are contained standards of conduct governing the Act of 1964, 42 U.S.C. 2000e et seq., in the Federal Register notice dated performance of their employees engaged which expressly exempts religious January 27, 1989. See 54 FR 4053. The in the award and administration of organizations from the prohibition policies and procedures also are subawards. No employee, officer, or against discrimination on the basis of provided in more detail in the agent shall participate in the selection, religion. See 42 U.S.C. 2000e–1(a). Department of Commerce Financial award, or administration of a subaward 11. Audits of Organizations Covered Assistance Standard Terms and supported by Federal funds if such by OMB Circular A–133, ‘‘Audits of Conditions. participation would cause a real or States, Local Governments, and Non- 14. Debts. Any debts determined to be apparent conflict of interest. Such a Profit Organizations’’ and the related owed the Federal Government shall be conflict would arise when the Compliance Supplement. Recipients paid promptly by the recipient. In employee, officer, or agent, any member that are subject to OMB Circular A–133, accordance with 15 CFR 21.4, a debt of his or her immediate family, his or and that expend $500,000 or more in will be considered delinquent if it is not her partner, or an organization in which Federal awards in a fiscal year shall paid within 15 days of the due date, or he/she serves as an officer or which have an audit conducted for that year in if there is no due date, within 30 days employs or is about to employ any of accordance with the requirements of of the billing date. Failure to pay a debt the parties mentioned in this section, OMB Circular A–133, issued pursuant by the due date, or if there is no due has a financial or other interest in the to the Single Audit Act of 1984 (Pub. L. date, within 30 days of the billing date, organization selected or to be selected No. 98–502), as amended by the Single shall result in the imposition of late for a subaward. The officers, employees, Audit Act Amendments of 1996 (Pub. L. payment charges. In addition, failure to and agents of the recipient may not No. 104–156). pay the debt or establish a repayment solicit or accept anything of monetary 12. Unless otherwise specified in the agreement by the due date, or if there is value from subrecipients. However, the terms and conditions of the award, in no due date, within 30 days of the recipient may set standards for accordance with 15 CFR 14.26(c) and billing date, will also result in the situations in which the financial interest (d), for-profit hospitals, commercial referral of the debt for collection action is not substantial or the gift is an entities, and other organizations not and may result in the DOC taking unsolicited item of nominal value. The required to follow the audit provisions further action as specified in the terms standards of conduct must provide for of OMB Circular A–133 shall have an of the award. Funds for payment of a disciplinary actions to be applied for audit performed when the federal share debt must not come from other federally violations of such standards by officers, amount awarded is $500,000 or more sponsored programs. Verification that employees, or agents of a recipient. over the duration of the project period. other Federal funds have not been used (c) All subawards will be made in a An audit is required at least once every will be made, e.g., during on-site visits manner to provide, to the maximum two years using the following schedule and audits. extent practicable, open and free for audit report submission. 15. Post-Award Discovery of Adverse competition. Recipients must be alert to (a) For awards less than 24 months, an Information. After an award is made, if organizational conflicts of interest as audit is required within 90 days from adverse information on a recipient or well as other practices among the project expiration date, including any key individual associated with a subrecipients that may restrict or the close-out period for the award. recipient is discovered which reflects eliminate competition. In order to (b) For 2-, or 3-year awards, an audit significantly and adversely on the ensure objective subrecipient is required within 90 days after the end recipient’s responsibility, the Grants performance and eliminate unfair of the first year and within 90 days from Officer may take the following actions: competitive advantage, subrecipients

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that develop or draft work requirements, as otherwise required by law. The its copyright in a particular work when statements of work, or requests for specific rights and responsibilities are the DOC is undertaking the primary proposals will be excluded from described in more detail in 37 CFR part dissemination of the work. Ownership competing for such subawards. 401 and in particular, in the standard of copyright by the Federal Government (d) For purposes of the award, a patent rights clause in 37 CFR 401.14, through assignment is permitted by 17 financial interest may include which is incorporated by reference into U.S.C. 105. employment, stock ownership, a awards. Recipients of DOC financial 22. Seat Belt Use. Pursuant to creditor or debtor relationship, or assistance awards are required to submit Executive Order 13043, recipients shall prospective employment with an their disclosures and elections seek to encourage employees and applicant. An appearance of impairment electronically using the Interagency contractors to enforce on-the-job seat of objectivity could result from an Edison extramural invention reporting belt policies and programs when organizational conflict where, because system (iEdison) at http:// operating recipient/company-owned, of other activities or relationships with www.iedison.gov. Recipients may obtain rented or personally owned vehicles. other persons or entities, a person is a waiver of this electronic submission 23. Research Involving Human unable or potentially unable to act in an requirement by providing to the DOC Subjects. All proposed research impartial manner. It also could result compelling reasons for allowing the involving human subjects must be from non-financial gain to the submission of paper copies of reports conducted in accordance with 15 CFR individual, such as benefit to reputation related to inventions. part 27, ‘‘Protection of Human Subject.’’ or prestige in a professional field. (b) Patent Notification Procedures. No research involving human subjects is 17. Minority Owned Business Pursuant to Executive Order 12889, the permitted under any DOC financial Enterprise. The DOC encourages DOC is required to notify the owner of assistance award unless expressly recipients to utilize minority and any valid patent covering technology authorized by the Grants Officer. women-owned firms and enterprises in whenever the DOC or its financial 24. Federal Employee Expenses. contracts under financial assistance assistance recipients, without making a Federal agencies are generally barred awards. The Minority Business patent search, knows (or has from accepting funds from a recipient to Development Agency can assist demonstrable reasonable grounds to pay transportation, travel, or other recipients in matching qualified know) that technology covered by a expenses for any Federal employee minority owned enterprises with valid United States patent has been or unless specifically approved in the contract opportunities. will be used without a license from the terms of the award. Use of award funds 18. Subaward and/or Contract to a owner. To ensure proper notification, if (Federal or non-Federal) or the Federal Agency. Recipients, the recipient uses or has used patented recipient’s provision of in-kind goods or subrecipients, contractors, and/or technology under this award without a services for the purposes of subcontractors may not sub-grant or license or permission from the owner, transportation, travel, or any other sub-contract any part of an approved the recipient will be required to notify expenses for any Federal employee, may project to any Federal department, the Grants Officer. This notice does not raise appropriation augmentation issues. agency, instrumentality, or employee necessarily mean that the government In addition, DOC policy prohibits the thereof, without the prior written authorizes and consents to any acceptance of gifts, including travel approval of the Grants Officer. copyright or patent infringement payments for Federal employees, from 19. Foreign Travel. Recipients must occurring under the financial assistance. recipients or applicants regardless of the comply with the provisions of the Fly (c) Data, Databases, and Software. The source. America Act, 49 U.S.C. 40118. The Fly rights to any work produced or 25. Preservation of Open Competition America Act requires that Federal purchased under a DOC financial and Government Neutrality Towards travelers and others performing U.S. assistance award are determined by 15 Government Contractors’ Labor Government-financed foreign air travel CFR 14.36 or 24.34, as applicable. Such Relations on Federal and Federally must use U.S. flag carriers, to the extent works may include data, databases or Funded Construction Projects. Pursuant that service by such carriers is available. software. The recipient owns any work to Executive Order 13202, ‘‘Preservation Foreign air carriers may be used only in produced or purchased under a DOC of Open Competition and Government specific instances, such as when a U.S. financial assistance award subject to Neutrality Towards Government flag air carrier is unavailable, or use of DOC’s right to obtain, reproduce, Contractors’ Labor Relations on Federal U.S. flag carrier service will not publish or otherwise use the work or and Federally Funded Construction accomplish the agency’s mission. The authorize others to receive, reproduce, Projects,’’ as amended by Executive implementing Federal Travel publish or otherwise use the data for Order 13208, unless the project is Regulations are found at 41 CFR 301– Federal Government purposes. exempted under section 5(c) of the 10.131 through 301–10.143. (d) Copyright. The recipient may Order, bid specifications, project 20. Purchase of American-Made copyright any work produced under a agreements, or other controlling Equipment and Products. Recipients are DOC financial assistance award subject documents for construction contracts hereby notified that they are to the DOC’s royalty-free nonexclusive awarded by recipients of grants or encouraged, to the greatest extent and irrevocable right to reproduce, cooperative agreements, or those of any practicable, to purchase American-made publish or otherwise use the work or construction manager acting on their equipment and products with funding authorize others to do so for Federal behalf, shall not: (1) Include any provided under DOC financial Government purposes. Works jointly requirement or prohibition on bidders, assistance awards. authored by the DOC and recipient offerors, contractors, or subcontractors 21. Intellectual Property Rights. employees may be copyrighted but only about entering into or adhering to (a) Inventions. The rights to any the part authored by the recipient is agreements with one or more labor invention made by a recipient under a protected because, under 17 U.S.C. 105, organizations on the same or related DOC financial assistance award are works produced by Government construction project(s); or (2) otherwise determined by the Bayh-Dole Act, as employees are not copyrightable in the discriminate against bidders, offerors, amended (Pub. L. No. 96–517), and United States. On occasion, the DOC contractors, or subcontractors for codified at 35 U.S.C. 200 et seq., except may ask the recipient to transfer to DOC becoming or refusing to become or

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remain signatories or otherwise allegation. Generally, the recipient 35. Care and Use of Live Vertebrate adhering to agreements with one or organization shall investigate the Animals. Recipients must comply with more labor organizations, on the same or allegation and submit its findings to the the Laboratory Animal Welfare Act of other related construction project(s). Grants Officer. The DOC may accept the 1966 (Pub. L. No. 89–544), as amended 26. Minority Serving Institutions recipient’s findings or proceed with its (7 U.S.C. 2131 et seq.) (animal (MSIs) Initiative. Pursuant to Executive own investigation. The Grants Officer acquisition, transport, care, handling, Orders 13256, 13230, and 13270, the shall inform the recipient of the DOC’s and use in projects) and implementing DOC is strongly committed to final determination. regulations, 9 CFR parts 1, 2, and 3; the broadening the participation of MSIs in 29. Intergovernmental Personnel Act Endangered Species Act (16 U.S.C. 1531 its financial assistance award programs. of 1970 (42 U.S.C. 4728–4763). et seq.); Marine Mammal Protection Act The DOC’s goals include achieving full Recipients must comply with this Act (16 U.S.C. 1361 et seq.) (taking participation of MSIs in order to relating to prescribed standards for possession, transport, purchase, sale, advance the development of human merit systems for programs funded export or import of wildlife and plants); potential, strengthen the Nation’s under one of the 19 statutes or The Nonindigenous Aquatic Nuisance capacity to provide high-quality regulations specified in Appendix A of Prevention and Control Act (16 U.S.C. education, and increase opportunities the Office of Personnel Management 4701 et seq.) (ensure preventive for MSIs to participate in and benefit Standards for a Merit System of measures are taken or that probable from Federal financial assistance Personnel Administration (5 CFR part harm of using species is minimal if programs. The DOC encourages all 900, Subpart F). there is an escape or release); and all applicants and recipients to include 30. Uniform Relocation Assistance other applicable statutes pertaining to meaningful participation of MSIs. and Real Property Acquisition Policies the care, handling, and treatment of Institutions eligible to be considered Act of 1970, as amended (42 U.S.C. 4601 warm blooded animals held for MSIs are listed on the Department of et seq.) and the DOC’s implementing research, teaching, or other activities Education’s Web site at: http:// regulations issued at 15 CFR part 11. supported by Federal financial www.ed.gov/offices/OCR/ These provide for fair and equitable assistance. No research involving minorityinst.html. treatment of persons displaced or whose vertebrate animals is permitted under 27. Access to Records. The Inspector property is acquired as a result of any DOC financial assistance award General of the DOC, or any of his or her Federal or Federally-assisted programs. unless authorized by the Grants Officer. duly authorized representatives, the These requirements apply to all 36. Publications, Videos, and Comptroller of the United States and, if interests in real property acquired for Acknowledgment of Sponsorship. appropriate, the State, shall have access project purposes regardless of Federal Publication of the results of a research to any pertinent books, documents, participation in purchases. project in appropriate professional papers and records of the parties to a 31. Historic Preservation. Recipients journals and production of videos or grant or cooperative agreement, whether must assist the DOC in assuring other media is encouraged as an written, printed, recorded, produced, or compliance with Section 106 of the important method of recording and reproduced by any electronic, National Historic Preservation Act of reporting scientific information. It is mechanical, magnetic or other process 1966, as amended, and the Advisory also a constructive means to expand or medium, in order to make audits, Council on Historic Preservation access to federally funded research. The inspections, excerpts, transcripts, or Guidelines (16 U.S.C. 470 et seq.); the recipient is required to submit a copy to other examinations as authorized by Archaeological and Historic the funding agency and when releasing law. An audit of an award may be Preservation Act of 1974 (16 U.S.C. information related to a funded project conducted at any time. 469a–1 et seq.); Protection and include a statement that the project or 28. Scientific or Research Misconduct. Enhancement of the Cultural effort undertaken was or is sponsored by Scientific or research misconduct refers Environment, Executive Order 11593; DOC. The recipient is also responsible to the fabrication, falsification, or Locating Federal Facilities on Historic for assuring that every publication of plagiarism in proposing, performing, or Properties in our Nation’s Central Cities, material (including Internet sites and reviewing research, or in reporting Executive Order 13006; and Indian videos) based on or developed under an research results. It does not include Sacred Sites, Executive Order 13007. award, except scientific articles or honest errors or differences of opinion. 32. Lead-Based Paint Poisoning papers appearing in scientific, technical The recipient organization has the Prevention Act (42 U.S.C. 4801 et seq.). or professional journals, contains the primary responsibility to investigate This Act prohibits the use of lead-based following disclaimer: ‘‘This [report/ allegations and provide reports to the paint in construction or rehabilitation of video] was prepared by [recipient name] Federal Government. Funds expended residential structures. under award [number] from [name of on an activity that is determined to be 33. Hatch Act (5 U.S.C. 1501–1508 operating unit], U.S. Department of invalid or unreliable because of and 7324–7328). This Act limits the Commerce. The statements, findings, scientific misconduct may result in a political activities of employees or conclusions, and recommendations are disallowance of costs for which the officers of State or local governments those of the author(s) and do not institution may be liable for repayment whose principal employment activities necessarily reflect the views of the to the awarding agency. The Office of are funded in whole or in part with [name of operating unit] or the U.S. Science and Technology Policy at the Federal funds. Department of Commerce.’’ White House published in the Federal 34. Labor standards for Federally- 37. Homeland Security Presidential Register on December 6, 2000, a final assisted construction subagreements Directive—12. If the performance of a policy that addressed research (wage guarantees). Recipients must grant award requires recipient misconduct. The policy was developed comply, as applicable, with the organization personnel to have by the National Science and Technology provisions of the Davis-Bacon Act (40 unsupervised physical access to a Council (65 FR 76260). The DOC U.S.C. 276a to 276a–7); the Copeland Federally controlled facility for more requires that any allegation be Act (40 U.S.C. 276c and 18 U.S.C. 874); than 180 days or access to a Federal submitted to the Grants Officer, who and the Contract Work Hours and Safety information system, such personnel will also notify the OIG of such Standards Act (40 U.S.C. 327—333). must undergo the personal identity

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verification credential process. In the not limited to, dual-use items, defense contain only the following program- case of foreign nationals, the DOC will articles and any related assistance, specific information: Summary conduct a check with U.S. Citizenship services, software or technical data as description of program; deadline date and Immigration Services’ (USCIS) defined in the EAR and ITAR. for receipt of applications; addresses for Verification Division, a component of (d) The recipient shall control access submission of applications; information the Department of Homeland Security to all export-controlled information and contacts (including electronic access); (DHS), to ensure the individual is in a technology that it possesses or that the amount of funding available; lawful immigration status and that they comes into its possession in statutory authority; the applicable are eligible for employment within the performance of a financial assistance Catalog of Federal Domestic Assistance U.S. Any items or services delivered award, to ensure that access is (CFDA) number(s); eligibility under a financial assistance award shall restricted, or licensed, as required by requirements; cost-sharing or matching comply with the Department of applicable Federal laws, Executive requirements; Intergovernmental Commerce personal identity verification Orders, and/or regulations. Review requirements; evaluation criteria (e) Nothing in the terms of this procedures that implement Homeland used by the merit reviewers; selection Security Presidential Directive—12, financial assistance award is intended to procedures, including funding FIPS PUB 201, and OMB Memorandum change, supersede, or waive the priorities/selection factors/policy factors M–05–24. The recipient shall insert this requirements of applicable Federal laws, to be applied by the selecting official; clause in all subawards or contracts Executive Orders or regulations. when the subaward recipient or (f) The recipient shall include this and administrative and national policy contractor is required to have physical clause, including this paragraph (f), in requirements. access to a Federally controlled facility all lower tier transactions (subawards, D. The DOC follows the uniform or access to a Federal information contracts, and subcontracts) under this format for an announcement of Federal system. financial assistance award that may Funding Opportunity (FFO) for 38. Compliance with Department of involve access to export-controlled discretionary grants and cooperative Commerce Bureau of Industry and information technology. agreements established by OMB in a Security Export Administration 39. The Trafficking Victims Protection policy letter published in the Federal Regulations Act of 2000 (22 U.S.C. 7104(g)), as Register (68 FR 37370, June 23, 2003). (a) This clause applies to the extent amended, and the implementing These FFOs are available at http:// that a financial assistance award regulations at 2 CFR part 175. This Act www.grants.gov or from the information involves access to export-controlled authorizes termination of financial contact listed in the Federal Register information or technology. assistance provided to a private entity, notice. Applicants are strongly (b) In performing a financial without penalty to the Federal encouraged to apply through http:// assistance award, the recipient may gain Government, if the recipient or www.grants.gov. It can take seven (7) to access to export-controlled information subrecipient engages in certain activities ten (10) business days to register with or technology. The recipient is related to trafficking in persons. http://www.grants.gov, and registration responsible for compliance with all 40. The Federal Funding applicable laws and regulations is required only once. Applicants Accountability and Transparency Act of should consider the time needed to regarding export-controlled information 2006 (Pub. L. No. 109–282). This Act and technology, including deemed register with http://www.grants.gov, and requires that the Federal government should begin the registration process exports. The recipient shall establish establish a single searchable awards well in advance of the application due and maintain effective export Web site by January 1, 2008 to enable date if they have never registered. compliance procedures at non-DOC the public to see where Federal funds Applicants should allow themselves facilities throughout performance of the for grant and contract awards are being adequate time to submit the proposal financial assistance award. At a spent. Subaward and subcontract data through http://www.grants.gov, as the minimum, these export compliance will be required on the Web site by procedures must include adequate January 1, 2009. Funding data deadline for submission cannot be controls relating to physical, verbal, retroactive to October 1, 2006 must be extended and there is the potential for visual and electronic access to export- reported by all Federal agencies and human or computer error during the controlled information and technology. their recipient and subrecipient electronic submission process. (c) Definitions organizations. Data elements will E. Universal Identifier: Applicants (1) Deemed Export. The Export include: should be aware that they will be Administration Regulations (EAR) • Name of entity receiving award; required to provide a Dun and define a deemed export as any release • Award amount; Bradstreet Data Universal Numbering • of technology or source code subject to Transaction type, funding agency, System number during the application the EAR to a foreign national, both in Catalog of Federal Domestic Assistance process. See the June 27, 2003 Federal the United States and abroad. Such Number, and descriptive award title; Register notice (68 FR 38402) for release is ‘‘deemed’’ to be an export to • Location of: Entity, primary additional information. Organizations the home country of the foreign location of performance (City/State/ can receive a DUNS number at no cost national. 15 CFR 734.2(b)(2)(ii). Congressional District/Country); and by calling the dedicated toll-free Duns (2) Export-controlled information and • Unique identifier of entity. number request line at 1–866–705–5711 technology. Export-controlled The data will be required within 30 information and technology subject to days of an award. The DOC will be or by accessing the Grants.gov Web site the EAR (15 CFR 730–774), implementing this Act, which will at: http://www.grants.gov. implemented by the DOC’s Bureau of require recipients and subrecipients to Executive Order 12866 Industry and Security, or the report the required data. International Traffic In Arms C. The Federal Register notice This notice has been determined to be Regulations (ITAR) (22 CFR 120–130), announcing the availability of Federal ‘‘not significant’’ for purposes of implemented by the Department of funds for each DOC competitive Executive Order 12866, ‘‘Regulatory State, respectively. This includes, but is financial assistance program will Planning and Review.’’

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Administrative Procedure Act and programs—international, Reporting and Russian Federation, 59 FR 15373 (April Regulatory Flexibility Act recordkeeping requirements. 1, 1994); Amendments to the Agreement Suspending the Antidumping Because notice and comment are not Al Sligh, Jr., Investigation on Uranium from the required under 5 U.S.C. 553, or any Director for Acquisition Management and Russian Federation, 61 FR 56665 other law, for this notice relating to Procurement Executive. (November 4, 1996); and Amendment to public property, loans, grants benefits or [FR Doc. E8–2482 Filed 2–8–08; 8:45 am] Agreement Suspending the contracts (5 U.S.C. 553(a)), a Regulatory BILLING CODE 3510–FA–P Antidumping Investigation on Uranium Flexibility Analysis is not required and from the Russian Federation, 62 FR has not been prepared for this notice. 37879 (July 15, 1997). On July 31, 1998, DEPARTMENT OF COMMERCE the Department notified interested Executive Order 13132 (Federalism) International Trade Administration parties of an administrative change with It has been determined that this notice respect to the Suspension Agreement. [A–821–802] See Agreement Suspending the does not contain policies with Antidumping Investigation on Uranium Federalism implications as that term is Amendment to the Agreement from the Russian Federation, 63 FR defined in Executive Order 13132. Suspending the Antidumping 40879 (July 31, 1998). Investigation on Uranium From the Paperwork Reduction Act On November 27, 2007, the United Russian Federation States and Russia initialed a draft These regulatory actions do not AGENCY: Import Administration, amendment to the Suspension impose any new reporting or International Trade Administration, Agreement. On December 4, 2007, the recordkeeping requirements under the Department of Commerce. Department published the draft Paperwork Reduction Act. amendment in the Federal Register and EFFECTIVE DATE: February 1, 2008. invited comments from interested Notwithstanding any other provisions of SUMMARY: The Department of Commerce parties, to be submitted by January 3, the law, no person is required to (‘‘the Department’’) and the Russian 2008. See Initialed Draft Amendment to respond to, nor shall any person be Federation’s Federal Atomic Energy subject to a penalty for failure to comply the Agreement Suspending the Agency (‘‘Rosatom’’) have signed an Antidumping Investigation on Uranium with a collection-of-information, subject amendment to the Agreement to the requirements of the Paperwork from the Russian Federation; Request Suspending the Antidumping for Comment, 72 FR 68124 (December 4, Reduction Act (PRA), 44 U.S.C. 3501 et Investigation on Uranium from the 2007). On December 17, 2007, the seq., unless that collection of Russian Federation (‘‘Suspension Department received initial comments information displays a currently valid Agreement’’). The amendment will on the draft amendment from Power OMB control number. The use of the allow the Russian Federation (‘‘Russia’’) Resources, Inc. and Crow Butte following family of forms has been to export Russian uranium products to Resources, Inc. On December 31, 2007, approved by OMB under the following the U.S. market in accordance with the pursuant to a request by interested control numbers: (1) SF–424 Family: export limits and other terms detailed in parties, the Department extended the 0348–0041, 0348–0044, 4040–0003, and the amendment. comment period deadline until January 4040–0004; (2) SF–424 Research and FOR FURTHER INFORMATION CONTACT: 10, 2008. See Extension of Time to Related Family: 4040–0001; SF–424 Sally C. Gannon at (202) 482–0162, Submit Comments Concerning the Individual Family: 4040–0005; (3) SF– Import Administration, International Initialed Draft Amendment to the 424 Mandatory Family: 4040–0002; and Trade Administration, U.S. Department Agreement Suspending the (4) SF–424 Short Organizational Family: of Commerce, 14th Street & Constitution Antidumping Investigation on Uranium 4040–0003. The use of Forms SF–LLL Avenue, NW., Washington, DC 20230. from the Russian Federation, 72 FR and CD–346 are approved by OMB Background 74272 (December 31, 2007). The under the control numbers 0348–0046 Department received comments from On October 30, 1992, the Department and 0605–0001, respectively. the following parties: Ad Hoc Utilities suspended the antidumping duty Group; AREVA S.A. and its affiliated Catalog of Federal Domestic Assistance investigation involving uranium from entities; Fuelco LLC; General Electric; Russia on the basis of an agreement by Louisiana Energy Services, L.P.; Nuclear This notice affects all of the grant and its government to restrict the volume of Energy Institute; Nukem, Inc.; Power cooperative agreement programs funded direct or indirect exports to the United Resources, Inc., Crow Butte Resources, by the DOC. The Catalog of Federal States in order to prevent the Inc., and Uranium Resources, Inc.; Domestic Assistance can be accessed on suppression or undercutting of price Progress Energy; United Steel, Paper the Internet under the DOC Grants levels of U.S. domestic uranium. See and Forestry, Rubber, Manufacturing, Management Web site at http:// Antidumping; Uranium from Energy, Allied-Industrial and Service www.cfda.gov. Kazakhstan, Kyrgyzstan, Russia, Workers International Union; USEC Inc. Tajikistan, Ukraine, and Uzbekistan; and United States Enrichment List of Subjects Suspension of Investigations and Corporation; and Westinghouse Electric Accounting, Administrative practice Amendment of Preliminary Company LLC. and procedures, Grants administration, Determinations, 57 FR 49220 (October On February 1, 2008, after Grant programs—economic 30, 1992). consideration of the interested party The Suspension Agreement was comments received, U.S. Secretary of development, Grant programs—oceans, subsequently amended, by agreement of Commerce Carlos M. Gutierrez and the atmosphere and fisheries management, both governments, on March 11, 1994, Director of Russia’s Federal Atomic Grant programs—minority businesses, October 3, 1996, and May 7, 1997. See, Energy Agency (Rosatom), S.V. Grant programs—technology, Grant respectively, Amendment to Agreement Kiriyenko, signed a finalized programs—telecommunications, Grant Suspending the Antidumping amendment to the Suspension Investigation on Uranium from the Agreement. The amendment allows for

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exports of Russian uranium products to of the other provisions of section IV is from the United States without being the U.S. market in accordance with the set forth in Appendix 1. subject to the export limits in this export limits and other terms detailed in A. Beginning on the Effective Date, Agreement, provided such sales occur the amendment. The text of the TENEX may immediately enter into prior to January 1, 2014. Any amount amendment follows in Annex 1 to this contracts for the sale of Russian sold after December 31, 2013, shall be notice. Uranium Products in the United States, charged against the export limit for the directly to U.S. utilities or otherwise. Dated: February 5, 2008. year in which it is sold or the first B. Beginning in 2011, Russian subsequent year in which the export Ronald K. Lorentzen, Uranium Products in any form may be limit has not been reached. Acting Deputy Assistant Secretary for Import exported to the United States up to the 4. After the Effective Date, Russian Administration. limits set forth below. These limits are Uranium Products may be imported for Annex 1 expressed in KgU as LEU, at a product processing and certified for re-export assay of 4.4 and a tails assay of 0.3 pursuant to sections IV. G and H, Amendment to the Agreement percent. The Department and without being subject to the export Suspending the Antidumping ROSATOM will consult and agree limits in section IV.B.1. Investigation on Uranium From the within two months after the Effective C. If, at any time, the Department Russian Federation Date on how to convert and apply determines that the available supply of The Agreement Suspending the against these export limits Russian Russian Uranium Products is or will be Antidumping Investigation on Uranium Uranium Products which are other than insufficient to meet U.S. demand, the from the Russian Federation is amended LEU. Russian Uranium Products Department may increase the export as set forth below. exported to the United States will be limits in this Agreement. The Preamble is amended by deleting counted against these export limits, D. Except for any increase added the last two paragraphs (which were employing the formula in section II(a), pursuant to section IV.C, if, in any year, added to the Agreement in 1994) and where necessary. the Department permits any Russian adding the following paragraph to the 1. The annual export limits are as Uranium Products to enter the United end: follows: States in excess of the export limit for The Department and ROSATOM 2011—16,559 2016—480,146 that year, the amount of the excess shall acknowledge that, for purposes of the 2012—24,839 2017—490,710 be charged against the export limit for Agreement, as amended (the 2013—41,398 2018—492,731 the first subsequent year in which the ‘‘Agreement’’), the successor in interest 2014—485,279 2019—509,058 export limit has not been contractually to MINATOM is the Federal Atomic 2015—455,142 2020—514,754 obligated. If the amount entered in any Energy Agency (‘‘ROSATOM’’). All These limits were derived from the year falls below the export limit for that references to MINATOM in this reference data in the World Nuclear year, the amount of the shortfall may be Agreement shall be understood to Association’s 2005 ‘‘Global Nuclear Fuel added to the export limit for the indicate ROSATOM. All exports of Market Supply and Demand 2005– subsequent year, up to 10 percent of the Russian Uranium Products are executed 2030.’’ The Department shall adjust export limit for the year in which the through the Russian Government- these export limits in 2016 and 2019 to shortfall occurs. Owned entity Techsnabexport match the projected reactor demand for E. In negotiating contracts involving (‘‘TENEX’’). All references to TENEX subsequent years in that publication or the export of Russian Uranium Products include its successors and its affiliated its successor, and also to increase the to the United States, ROSATOM/TENEX companies. All references to ‘‘Customs’’ total export limit for the remaining years shall charge market rates for conversion. shall be understood to indicate United by the net amount by which the export F. The Russian LEU in reactor fuel States Customs and Border Protection. limits for previous years have fallen rods or assemblies exported to the Section II.—Definitions—is amended short of the export limits that would United States shall be counted against by deleting definitions (g) ‘‘U.S. have been derived from the revised the export limits in this Agreement. producer,’’ (h) ‘‘for consumption,’’ (i) demand figures for those years, with any ROSATOM/TENEX shall charge market ‘‘End-user,’’ (j) ‘‘Spot Contract,’’ and (k) additional export allowances being rates for fuel rods and assemblies ‘‘Newly-produced,’’ and by adding the divided equally between the revised themselves. following definitions: export limits for the remaining years. The following sentence is added at (l) ‘‘Russian Uranium Products’’ Russian Uranium Products may be the end of the sixth paragraph of section means all products described in Section exported to the United States under a IV.H., which begins ‘‘For re-export III, Product Coverage, of the Agreement. contract entered into after the Effective entered under the 36 month limitation (m) ‘‘Low-Enriched Uranium’’ Date and approved by the Department ***’’: (‘‘LEU’’) means uranium of which the under this Agreement, even if such The Department of Commerce shall content of the fissile isotope uranium- exports exceed the export limits in instruct Customs to liquidate such 235 has been increased through effect at the time of delivery. entries as promptly as possible, and in enrichment to more than 0.7 percent, 2. After the Effective Date, Russian all cases within ten (10) days of but less than 20 percent, by weight. Uranium Products may be sold in, and receiving confirmation of the re-export (n) ‘‘Initial Core’’ means the LEU exported to, the United States to fulfill shipment out of the United States. If the necessary to start a U.S. nuclear reactor contracts for the supply of Initial Cores Department does not issue such that is entering service for the first time. without being subject to the export instruction to Customs within ten (10) (o) ‘‘Effective Date’’ means the date on limits in this Agreement. days of receiving confirmation of the re- which this amendment is signed by both 3. After the Effective Date, LEU in the export shipment out of the United parties. United States pursuant to the contracts States, on the next business day, the (p) ‘‘Year’’ or ‘‘Relevant Period’’ described in Appendix C to the Department shall provide ROSATOM means ‘‘Calendar Year’’. Agreement, and stored as of the with a written explanation of the exact Section IV.—Export Limits—The Effective Date at the facilities of U.S. and specific reason(s) for the delay and following new paragraphs are added at producers (i.e., the EUP stockpile), may a date certain by which the Department the beginning of this section. The status be sold in the United States or exported shall issue instructions to Customs to

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liquidate the entries. The Department origin, to submit at the time of entry States will not appeal the September shall provide notice of re-export of any written statements certifying the 26th decision in Techsnabexport v. such uranium to TENEX. following: United States. N. Russian Uranium Products sold 1. The country(ies) in which the ore In addition, the Department shall pursuant to a multi-year contract was mined and, if applicable, converted, entered into after the Effective Date and enriched, and/or fabricated, for all conduct sunset reviews under 19 U.S.C. approved by the Department may be imports; and 1675(c) in the years 2011 and 2016. All delivered in accordance with the 2. That the uranium products being parties agree that the sunset reviews provisions of this Amendment imported were not obtained under any shall be expedited, pursuant to 19 regardless of any modification to or arrangement, swap, exchange, or other U.S.C. 1675(C)(4) and (C)(3)(B), reduction in the quantity that may be transaction designed to circumvent the respectively, at both the Department of delivered under the export limits or any export limits established by the Commerce and the International Trade modification to or any interruption in Agreement, or the limitations set forth Commission. the effectiveness of, including in 43 U.S.C. 2297h–10(b) of the USEC Section XIII.—Conditions—is termination of, this Agreement. Privatization Act, 42 U.S.C. 2297h, et amended by adding, before the first Section V.—Export License/ seq., and the Procedures for Delivery of paragraph, an ‘‘A,’’ and by adding the Certificates—is amended by replacing HEU Natural Uranium Component in following new paragraph at the end of paragraphs B and C with the paragraphs the United States, as revised. section XIII: below and adding new paragraph F as Procedures for Delivery of HEU Natural follows: Uranium Component in the United B. This Agreement will be applied B. Export licenses shall be issued, and States, 64 Fed. Reg. 42930 (August 6, consistent with any applicable decision export certificates shall be endorsed by 1999). of the U.S. Courts, including the Eurodif the competent Russian Government J. Neither ROSATOM nor TENEX will decisions. Such decisions shall be authority, for all direct and indirect circumvent this Agreement or frustrate applied to this Agreement (including by exports of Russian Uranium Products to the attainment of its objectives by amendment, if necessary) no later than the United States. Such export entering into any contract involving the six (6) months after the appropriate certificates shall remain valid for entry exportation to the United States of LEU decision, unless the Department and into the United States for 120 days from in quantities exceeding the export limits ROSATOM agree otherwise. the Date of Export. in this Agreement. C. Russian Uranium Products may Section VIII.—Monitoring—is Section XIV.—Other Provisions—is enter the United States if: (1) They were amended by adding the reporting amended by replacing existing sold pursuant to a contract approved by requirements listed in Appendix 3 to paragraph B with the following new the Department under this Agreement; this Amendment. paragraph B, and by replacing the (2) are accompanied by (a) a valid Section XII.—Duration—is amended second part of paragraph C with the export license and certificate and (b) a by replacing the first two paragraphs following: valid purchase and/or delivery order with the following: B. For all purposes relating to the issued in accordance with the contract As of the Effective Date of this Agreement, the Department and Amendment, each of the petitioners in approved by the Department under this ROSATOM shall be represented by, and the suspended investigation, or their Agreement showing the specific product all communications and notices shall be and tails assays, as applicable; and (3) legal successors, has filed with the Department an irrevocable letters given and addressed to: Department do not exceed the export limits in Contact: United States Department of section IV. expressly withdrawing the petition in F. Any contract, or amendment the antidumping investigation, effective Commerce, Assistant Secretary for thereto, for the sale of Russian Uranium December 31, 2020. These letters are Import Administration, International Products for exportation to the United attached to this Amendment as Trade Administration, Washington, DC States shall be submitted to the Appendix 4. The Agreement will 20230. ROSATOM Contact: State Department for approval, along with the terminate on December 31, 2020. Upon Secretary, Deputy Director, Federal documents listed in Appendix 2 to this its termination on December 31, 2020, Atomic Energy Agency, (ROSATOM), Amendment. If the maximum quantities the Department shall terminate the Staromonetnyy per., 26, 119180, to be exported under a contract, when antidumping investigation effective on Moscow, Russian Federation. cumulated with the maximum that date. C. If U.S. law, regulation, quantities that may be exported under The Department, before the Effective administrative practice, or policy all other approved contracts, are not in Date, acknowledges the remand of the should change in any manner, including excess of the export limits under this U.S. Court of International Trade of by U.S. court decision or legislative or September 26, 2007, in Techsnabexport Agreement, and the information listed administrative action, that would result v. United States, Ct. No. O6–00228, in Appendix 2 has been submitted to in relatively less favorable treatment for the Department, the Department shall including the Court’s direction that ‘‘Commerce follow the precedent by the Russian Federation as compared to approve the contract within 15 days (or any other country, or if the United the next business day if the 15th day which it is bound, articulated in the States should enter into any agreement falls on a weekend or holiday). Eurodif cases.’’ As directed by the Court Section VII.—Anticircumvention—is of International Trade, the Department or understanding or take any action that amended by replacing section VII.D will abide by the Eurodif decisions in its would cause that result, the parties will with new paragraph D and adding new determination of the likelihood of promptly, i.e., within six (6) months, paragraph J as follows: continued or recurring dumping. enter into consultations with a view to D. In addition to the above Therefore, on the Effective Date, amending this Agreement so as to requirements, the Department shall Techsnabexport will file a motion in eliminate such less favorable treatment direct Customs to require all importers Techsnabexport v. United States under to the extent permitted by U.S. law. of uranium products into the United Rule 41 of the U.S. Court of Signed on this 1st day of February, 2008. States, regardless of stated country of International Trade Rules. The United

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For the U.S. Department of Commerce: by Russian law, ROSATOM shall submit d. Date of Export, as listed on the Carlos M. Gutierrez, an updated master export schedule to Certificate for Re-Export. U.S. Secretary of Commerce. the Department showing the following e. Party requesting approval, as listed For ROSATOM: for each year (from the first year of on the request for approval. f. Customer, as listed on the S.V. Kiriyenko, validity of the Amendment through 2020) for any material to be delivered in Certificate for Re-Export. Director, Federal Atomic Energy Agency, g. Total quantity, expressed in KGU, (ROSATOM). the United States pursuant to contracts under this Agreement: (a) Estimated U308 and, as applicable, SWUs, as Appendix 1 deliveries, and (b) completed deliveries. listed on the Certificate for Re-Export. Section IV.—Export Limits—The All such reports submitted by h. Date of importation, as relied upon status of the other paragraphs of section ROSATOM shall be subject to release by the Department for purposes of IV, other than the newly-added under Administrative Protective Order determining annual usage of the quota. i. Time frame for re-export (i.e., 12- paragraphs, is as follows: (‘‘APO’’) to counsel for interested month or 36-month), as listed on the 1994 matched sales provisions (IV, parties to the proceeding. Certificate for Re-Export. IV.A—IV–E)—hereby deleted. 2. Beginning the Effective Date, no j. Scheduled date for re-export, as 1992 Sections IV. A–IV.C.1—deleted later than 30 days after the end of each relied upon by the Department for in 1994. semi-annual period, to the extent 1992 Sections IV. C 2–3 and IV.D— permitted by U.S. law, the Department purposes of determining annual usage of hereby deleted. shall provide semi-annual reports to the quota. 1992 Sections IV. E–IV.G—remain in ROSATOM, via its U.S. attorney under k. Notice of re-export filed with the effect. APO, of all individual imports (for Department, including the date of such 1992 Section IV. H, first two consumption and for processing and re- notification and the actual date of re- paragraphs—deleted in 1997. export) of Russian Uranium Products to export. 1997 Section H—remains in effect. the United States, together with such Appendix 4 1992 Sections IV. I–IV.M.1 remain in additional information as is necessary [Available in the Department’s Central effect. and appropriate to monitor Records Unit, HCHB Room 1117]. 1996 Section IV.M.2—remains in implementation of the Agreement, as effect. agreed to by ROSATOM and the [FR Doc. 08–608 Filed 2–8–08; 8:45 am] 1992 Section IV.M.2—ineffective as of Department. For every transaction for BILLING CODE 3510–DS–P 1997. which the Department withholds Appendix 2 information on the basis that its disclosure is not permitted under U.S. DEPARTMENT OF COMMERCE Pursuant to section V.F, the following law, the Department shall submit to International Trade Administration documents should accompany any ROSATOM the fullest description contract for the sale of Russian Uranium permitted under U.S. law of the (C–533–825) Products for exportation to the United information withheld and the legal basis States which is submitted to the for not disclosing it. Polyethylene Terephthalate Film, Department for approval: 3. For purposes of the Department’s Sheet, and Strip from India: Final 1. A copy of the signed contract reporting on imports for consumption, Results of Countervailing Duty pursuant to which the Russian Uranium to the extent permitted under U.S. law, Administrative Review Products shall be imported (showing the the Department shall provide the contract date and key terms such as AGENCY: Import Administration, following: International Trade Administration, price, quantity, delivery requirements a. Quantity: Indicate units of measure Department of Commerce. and estimated delivery schedule); sold and/or entered, e.g., pounds U308, 2. A description of the physical SUMMARY: On August 6, 2007, the Kilograms U, SWU, etc. Department of Commerce (the material being imported; b. Date of Importation: The date Department) published in the Federal 3. Identification of the Russian Customs confirmed the Department’s Register the preliminary results of supplier of the Russian Uranium shipment clearance instructions. Products; c. Date of Export: The date the Export administrative review of the 4. For each contract, the maximum Certificate is endorsed. countervailing duty order on volume of each type of Russian d. Export Certificate: The Export polyethylene terephthalate film, sheet, Uranium Product that may be exported Certificate number corresponding to and strip (PET Film) from India for the to the United States pursuant to the each individual import. period January 1, 2005 through contract each year; e. Total Sales Value: Indicate December 31, 2005. See Polyethylene 5. For sales pursuant to Section currency used. Terephthalate Film, Sheet, and Strip IV.B.2, the documentation necessary to f. Importer of Record: Name and from India: Notice of Preliminary demonstrate that deliveries meet the address. Results and Rescission, in Part, of definition of Initial Cores (e.g., a 4. For purposes of the Department’s Countervailing Duty Administrative combined construction and operating reporting on imports for processing and Review, 72 FR 43607 (August 6, 2007) license (COL), etc.). re-export, to the extent permitted under (Preliminary Results). Based on the U.S. law, the Department shall provide results of our verification and our Appendix 3 the following: analysis of the comments received, the Pursuant to section VIII, the following a. Filing date of request for approval Department has revised the subsidy additional reporting requirements are filed with the Department. rates for the respondents; Garware agreed to by ROSATOM and the b. Certificate for Re-Export number, as Polyester Ltd. (Garware) and MTZ Department: listed on the Certificate for Re-Export. Polyfilms, Ltd. (MTZ). The final subsidy 1. Beginning the Effective Date, no c. Date of issuance by ROSATOM of rates for the reviewed companies are later than 30 days after the end of each the Certificate for Re-Export, as listed on listed below in the section entitled calendar quarter, to the extent permitted the Certificate for Re-Export. ‘‘Final Results of Review.’’

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EFFECTIVE DATE: February 11, 2008 3920.62.00. HTSUS subheadings are final results of review to liquidate FOR FURTHER INFORMATION CONTACT: Elfi provided for convenience and customs shipments of subject merchandise by Blum or Sean Carey, AD/CVD purposes. The written description of the Garware and MTZ entered, or Operations, Office 6, Import scope of the order is dispositive. withdrawn from warehouse, for Administration, International Trade Analysis of Comments Received consumption on or after January 1, 2005 Administration, U.S. Department of through December 31, 2005, at 10.37 Commerce, 14th Street and Constitution Following the release of the percent and 33.94 percent, respectively, Avenue, NW, Washington, DC 20230; verification reports for the GOI, Garware ad valorem of the entered value. We and MTZ, we gave interested parties an telephone: (202) 482–0197, or (202) will also instruct CBP to collect cash opportunity to comment on our 482–3964, respectively. deposits of estimated countervailing Preliminary Results. All issues raised in SUPPLEMENTARY INFORMATION: duties, at these rates, on shipments of the case and rebuttal briefs by parties to the subject merchandise by Garware and Background this administrative review are addressed MTZ entered, or withdrawn from in the Issues and Decision warehouse, for consumption on or after Since the publication of the Memorandum for the 2005 Preliminary Results, the following the date of publication of these final Countervailing Duty Administrative results of review. For all non–reviewed events have occurred. As provided in Review of Polyethylene Terephthalate 782(i) of the Tariff Act of 1930, as companies, the Department has Film, Sheet, and Strip from India, from instructed CBP to assess countervailing amended (the Act), the Department Stephen J. Claeys, Deputy Assistant conducted a verification of the duties at the cash deposit rates in effect Secretary for Import Administration to at the time of entry, for entries between questionnaire responses submitted by David M. Spooner, Assistant Secretary the Government of India (GOI), Garware, January 1, 2005 and December 31, 2005. for Import Administration (February 4, The cash deposit rates for all companies and MTZ from September 11 through 2008) (Issues and Decision September 25, 2007. We used standard not covered by this review are not Memorandum), which is hereby changed by the results of this review. verification procedures, including on– adopted by this notice. The Issues and site examination of relevant records and Decision Memorandum also contains a Return or Destruction of Proprietary original source documents. Our complete analysis of the programs Information verification results are outlined in the covered by this review and the This notice serves as a reminder to verification memoranda, public versions methodologies used to calculate the parties subject to the administrative of which are on file in the Central subsidy rates. A list of the comments protective order (APO) of their Records Unit (CRU), room 1117 of the raised in the briefs and addressed in the responsibility concerning the Main Commerce Building. See Issues and Decision Memorandum is disposition of proprietary information ‘‘Verification of the Questionnaire appended to this notice. The Issues and disclosed under the APO in accordance Responses Submitted by the Decision Memorandum is on file in the with 19 CFR 351.305(a)(3). Timely Government of India (GOI)’’ (December CRU, and can be accessed directly on written notification of return or 7, 2007) (GOI Verification Report); the Web at http://www.trade.gov/ia/. destruction of APO materials or ‘‘Verification of the Questionnaire conversion to judicial protective order is Responses Submitted by Garware Changes Since the Preliminary Results hereby requested. Failure to comply Polyester, Ltd. (Garware)’’ (December 7, Based on our verification and analysis with the regulations and the terms of an 2007) (Garware Verification Report); of comments received, we have made APO is a sanctionable violation. and ‘‘Verification of the Questionnaire some adjustments in the methodology We are issuing and publishing these Responses Submitted by MTZ Polyfilms that was used in the Preliminary Results results in accordance with sections Ltd. (MTZ)’’ (December 7, 2007) (MTZ for calculating Garware’s and MTZ’s 751(a)(1) and 777(i)(1) of the Act. Verification Report). On December 20, subsidy rates under several programs. Dated: February 4, 2008. 2007, Dupont Teijin Films, Mitsubishi All changes are discussed in detail in Polyester Film of America, and Toray the Issues and Decision Memorandum. David M. Spooner, Plastics (America), Inc. (collectively, the Assistant Secretaryfor Import Administration. Petitioners), Garware, and MTZ filed Final Results of Review Appendix I case briefs. Garware, MTZ and In accordance with section Petitioners filed rebuttal briefs on 751(a)(1)(A) of the Act and 19 CFR List Of Issues Addressed In The Issues December 28, 2007. Based on a request 351.221(b)(5), we calculated individual And Decision Memorandum by MTZ, a public hearing was held on ad valorem subsidy rates for the Comment 1: Countervailability January 10, 2008. producers/exporters, Garware and MTZ, Determination and Cash–Deposit the only producers/exporters subject to Scope of the Order Adjustment for the Target Plus Scheme review for the calendar year 2005, the Comment 2: Countervailing the Total For purposes of the order, the period of review (POR) for this Subsidy Provided by the Pre- and Post– products covered are all gauges of raw, administrative review. Shipment Program pretreated, or primed Polyethylene Comment 3: The Countervailability of Terephthalate Film, Sheet and Strip, Manufacturer/Exporter Net Subsidy Rate the Advance License Program (ALP) whether extruded or coextruded. Comment 4: The Denominator in the Excluded are metallized films and other Garware Polyester Ltd. 10.37% MTZ Polyfilms Ltd...... 33.94% Benefit Calculation for Export finished films that have had at least one Promotion Capital Goods Scheme of their surfaces modified by the (EPCGS) Assessment and Cash Deposit application of a performance–enhancing Comment 5: Calculation Methodology Instructions resinous or inorganic layer of more than for EPCGS 0.00001 inches thick. Imports of PET The Department intends to issue Comment 6: Partial Fulfillment of the film are classifiable in the Harmonized assessment instructions to U.S. Customs EPCGS Export Obligation Tariff Schedule of the United States and Border Protection (CBP) 15 days Comment 7: The Interest Rate Used to (HTSUS) under item number after the date of publication of these Calculate the EPCGS Benefit

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Comment 8: EPCGS Benefits for FR 60801 (October 26, 2007). The notice DEPARTMENT OF COMMERCE Machinery Not Used to Produce Subject of initiation stated that the Department Merchandise would issue its preliminary International Trade Administration Comment 9: The Treatment of determinations for these investigations [A–201–822] Countervailing Duties in the Benefit no later than 140 days after the date of Calculation for EPCGS issuance of the initiation (i.e., March 6, Stainless Steel Sheet and Strip in Coils Comment 10: Company Specific 2008) in accordance with section from Mexico; Final Results of Average Useful Life (AUL) for MTZ 733(b)(1)(A) of the Tariff Act of 1930, as Antidumping Duty Administrative Comment 11: Purchases From a Union amended (the Act). Id. at 60806. Review Territory AGENCY: Comment 12: Adjustments to Cash On January 23, 2008, DuPont Teijin Import Administration, Deposit Rates to Account for Program– Films, Mitsubishi Polyester of America, International Trade Administration, Wide Changes SKC Inc. and Toray Plastics (America), Department of Commerce. SUMMARY: On August 6, 2007, the Comment 13: State of Maharashtra Inc. (collectively, petitioners) made a Department of Commerce (the (SOM) Sales Tax Exemption timely request pursuant to section Department) published the preliminary Comment 14: Timetable for the 733(c)(1) of the Act and 19 CFR results of the administrative review of Department to Consider Arguments 351.205(e) for a postponement of the the antidumping duty order on stainless preliminary determinations with respect [FR Doc. E8–2467 Filed 2–8–08; 8:45 am] steel sheet and strip in coils from to Brazil, the People’s Republic of BILLING CODE 3510–DS–S Mexico. See Stainless Steel Sheet and China, Thailand, and the United Arab Strip in Coils from Mexico; Preliminary Emirates. The petitioners requested Results of Antidumping Duty DEPARTMENT OF COMMERCE postponement of the preliminary Administrative Review, 72 FR 43600 determinations with respect to these International Trade Administration (August 6, 2007) (Preliminary Results). four countries, explaining that they This review covers sales of subject (A–351–841), (A–570–924), (A–549–825), (A– need time to evaluate questionnaire merchandise made by ThyssenKrupp 520–803) responses, the submissions of which Mexinox S.A. de C.V. (Mexinox) for the were extended by the Department. period July 1, 2005 to June 30, 2006. Polyethylene Terephthalate Film, Additionally, petitioners stated that Based on our analysis of the comments Sheet, and Strip from Brazil, the they intend to file sales–below-cost received, we have made changes in the People’s Republic of China, Thailand, allegations with respect to Thailand and margin calculation; therefore, the final and the United Arab Emirates: the United Arab Emirates, and results differ from the preliminary Postponement of Preliminary anticipated that the Department will results. The final weighted–average Determinations of Antidumping Duty need time to adequately analyze these dumping margin for the reviewed firm Investigations allegations. is listed below in the section entitled ‘‘Final Results of Review.’’ AGENCY: Import Administration, For the reasons identified by the EFFECTIVE DATE: February 11, 2008. International Trade Administration, petitioners and because there are no Department of Commerce. compelling reasons to deny the request, FOR FURTHER INFORMATION CONTACT: EFFECTIVE DATE: February 11, 2008. the Department is postponing the Maryanne Burke or Robert James, AD/ CVD Operations, Office 7, Import FOR FURTHER INFORMATION CONTACT: deadline for the preliminary Administration, International Trade Mike Heaney for Brazil, Erin Begnal for determinations with respect to Brazil, Administration, U.S. Department of the People’s Republic of China, Stephen the People’s Republic of China, Commerce, 14th Street and Constitution Bailey for Thailand, and Douglas Kirby Thailand, and the United Arab Emirates Avenue, NW, Washington, DC 20230; for the United Arab Emirates, AD/CVD pursuant to section 733(c)(1)(A) of the telephone: (202) 482–5604 and (202) Operations, Offices 6, 7, and 9, Import Act by 50 days to April 25, 2008. The 482–0649, respectively. Administration, International Trade deadline for the final determinations SUPPLEMENTARY INFORMATION: Administration, U.S. Department of will continue to be 75 days after the Commerce, 14th Street and Constitution date of the preliminary determinations, Background Avenue, NW, Washington, DC 20230; unless extended. On August 6, 2007, the Department telephone: (202) 482–4475, (202) 482– This notice is issued and published published in the Federal Register the 1442, (202) 482–0193 and (202) 482– preliminary results of the administrative 3782, respectively. pursuant to sections 733(c)(2) and 777(I) of the Act, and 19 CFR 351.205(f)(1). review of the antidumping duty order SUPPLEMENTARY INFORMATION: on stainless steel sheet and strip in coils Dated: February 4, 2008. Postponement of Preliminary from Mexico for the period July 1, 2005, Determinations David M. Spooner, to June 30, 2006. See Preliminary Assistant Secretary for Import Results. In response to the Department’s On October 26, 2007, the Department Administration. invitation to comment on the of Commerce (the Department) initiated [FR Doc. E8–2460 Filed 2–8–08; 8:45 am] preliminary results of this review, the antidumping duty investigations of BILLING CODE 3510–DS–S Allegheny Ludlum Corporation, United polyethylene terephthalate film, sheet, Auto Workers Local 3303, Zanesville and strip (PET Film) from Brazil, the Armco Independent Organization, Inc. People’s Republic of China, Thailand, and the United Steelworkers of America and the United Arab Emirates. See (collectively, petitioners) and Mexinox Polyethylene Terephthalate Film, Sheet, filed their case briefs on November 13, and Strip (PET Film) from Brazil, the 2007.1 Mexinox submitted its rebuttal People’s Republic of China, Thailand, and the United Arab Emirates: Initiation 1 On September 11, 2007, we issued a of Antidumping Duty Investigations, 72 memorandum stating that the Department would

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brief on November 19, 2007, while 7219.34.0035, 7219.35.0005, product used in the manufacture of petitioners filed their rebuttal brief on 7219.35.0015, 7219.35.0030, suspension assemblies for computer November 20, 2007. Also, at Mexinox’s 7219.35.0035, 7219.90.0010, disk drives. Suspension foil is described request, the Department held a public 7219.90.0020, 7219.90.0025, as 302/304 grade or 202 grade stainless hearing on December 6, 2007. 7219.90.0060, 7219.90.0080, steel of a thickness between 14 and 127 On September 4, 2007, we published 7220.12.1000, 7220.12.5000, microns, with a thickness tolerance of in the Federal Register our notice 7220.20.1010, 7220.20.1015, plus–or-minus 2.01 microns, and partially extending the time limit for 7220.20.1060, 7220.20.1080, surface glossiness of 200 to 700 percent this review until January 10, 2008. See 7220.20.6005, 7220.20.6010, Gs. Suspension foil must be supplied in Stainless Steel Sheet and Strip in Coils 7220.20.6015, 7220.20.6060, coil widths of not more than 407 mm, from Mexico: Extension of Time Limit 7220.20.6080, 7220.20.7005, and with a mass of 225 kg or less. Roll for Final Results of Antidumping Duty 7220.20.7010, 7220.20.7015, marks may only be visible on one side, Administrative Review, 72 FR 50663 7220.20.7060, 7220.20.7080, with no scratches of measurable depth. (September 4, 2007). On January 14, 7220.20.8000, 7220.20.9030, The material must exhibit residual 2008, we published in the Federal 7220.20.9060, 7220.90.0010, stresses of 2 mm maximum deflection, Register our notice fully extending the 7220.90.0015, 7220.90.0060, and and flatness of 1.6 mm over 685 mm time limit for this review until February 7220.90.0080. Although the HTSUS length. 4, 2008. See Stainless Steel Sheet and subheadings are provided for Certain stainless steel foil for Strip in Coils from Mexico: Second convenience and customs purposes, the automotive catalytic converters is also Extension of Time Limit for Final Department’s written description of the excluded from the scope of this order. Results of Antidumping Duty merchandise under review is This stainless steel strip in coils is a Administrative Review, 73 FR 2222 dispositive. specialty foil with a thickness of (January 14, 2008). Excluded from the review of this between 20 and 110 microns used to order are the following: (1) sheet and produce a metallic substrate with a Period of Review strip that is not annealed or otherwise honeycomb structure for use in The period of review (POR) is July 1, heat treated and pickled or otherwise automotive catalytic converters. The 2005 to June 30, 2006. descaled, (2) sheet and strip that is cut steel contains, by weight, carbon of no Scope of the Order to length, (3) plate (i.e., flat–rolled more than 0.030 percent, silicon of no stainless steel products of a thickness of more than 1.0 percent, manganese of no For purposes of this administrative 4.75 mm or more), (4) flat wire (i.e., more than 1.0 percent, chromium of review, the products covered are certain cold–rolled sections, with a prepared between 19 and 22 percent, aluminum stainless steel sheet and strip in coils. edge, rectangular in shape, of a width of of no less than 5.0 percent, phosphorus Stainless steel is an alloy steel not more than 9.5 mm), and (5) razor of no more than 0.045 percent, sulfur of containing, by weight, 1.2 percent or blade steel. Razor blade steel is a flat– no more than 0.03 percent, lanthanum less of carbon and 10.5 percent or more rolled product of stainless steel, not of less than 0.002 or greater than 0.05 of chromium, with or without other further worked than cold–rolled (cold– percent, and total rare earth elements of elements. The subject sheet and strip is reduced), in coils, of a width of not more than 0.06 percent, with the a flat–rolled product in coils that is more than 23 mm and a thickness of balance iron. greater than 9.5 mm in width and less 0.266 mm or less, containing, by weight, Permanent magnet iron–chromium- than 4.75 mm in thickness, and that is 12.5 to 14.5 percent chromium, and cobalt alloy stainless strip is also annealed or otherwise heat treated and certified at the time of entry to be used excluded from the scope of this order. pickled or otherwise descaled. The in the manufacture of razor blades. See This ductile stainless steel strip subject sheet and strip may also be chapter 72 of the HTSUS, ‘‘Additional contains, by weight, 26 to 30 percent further processed (e.g., cold–rolled, U.S. Note’’ 1(d). chromium, and 7 to 10 percent cobalt, polished, aluminized, coated, etc.) Flapper valve steel is also excluded with the remainder of iron, in widths provided that it maintains the specific from the scope of the order. This 228.6 mm or less, and a thickness dimensions of sheet and strip following product is defined as stainless steel strip between 0.127 and 1.270 mm. It exhibits such processing. The merchandise in coils containing, by weight, between magnetic remanence between 9,000 and subject to this order is currently 0.37 and 0.43 percent carbon, between 12,000 gauss, and a coercivity of classifiable in the Harmonized Tariff 1.15 and 1.35 percent molybdenum, and between 50 and 300 oersteds. This Schedule of the United States (HTSUS) between 0.20 and 0.80 percent product is most commonly used in at subheadings: 7219.13.0031, manganese. This steel also contains, by electronic sensors and is currently 7219.13.0051, 7219.13.0071, weight, phosphorus of 0.025 percent or available under proprietary trade names 7219.13.00.81, 7219.14.0030, less, silicon of between 0.20 and 0.50 such as ‘‘Arnokrome III.’’2 7219.14.0065, 7219.14.0090, percent, and sulfur of 0.020 percent or Certain electrical resistance alloy steel 7219.32.0005, 7219.32.0020, less. The product is manufactured by is also excluded from the scope of this 7219.32.0025, 7219.32.0035, means of vacuum arc remelting, with order. This product is defined as a non– 7219.32.0036, 7219.32.0038, inclusion controls for sulphide of no magnetic stainless steel manufactured to 7219.32.0042, 7219.32.0044, more than 0.04 percent and for oxide of American Society of Testing and 7219.33.0005, 7219.33.0020, no more than 0.05 percent. Flapper Materials (‘‘ASTM’’) specification B344 7219.33.0025, 7219.33.0035, valve steel has a tensile strength of and containing, by weight, 36 percent 7219.33.0036, 7219.33.0038, between 210 and 300 ksi, yield strength nickel, 18 percent chromium, and 46 7219.33.0042, 7219.33.0044, of between 170 and 270 ksi, plus or percent iron, and is most notable for its 7219.34.0005, 7219.34.0020, minus 8 ksi, and a hardness (Hv) of resistance to high temperature 7219.34.0025, 7219.34.0030, between 460 and 590. Flapper valve corrosion. It has a melting point of 1390 steel is most commonly used to produce postpone the briefing schedule for the final results degrees Celsius and displays a creep until cost verification reports were issued for specialty flapper valves in compressors. Mexinox. See Memorandum to the File, dated Also excluded is a product referred to 2 ‘‘Arnokrome III’’ is a trademark of the Arnold September 11, 2007. as suspension foil, a specialty steel Engineering Company.

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rupture limit of 4 kilograms per square microns. An example of this product is via the Internet at www.ia.ita.doc.gov/ millimeter at 1000 degrees Celsius. This ‘‘GIN5’’ steel. The third specialty steel fm/index.html. The paper copy and steel is most commonly used in the has a chemical composition similar to electronic version of the Decision production of heating ribbons for circuit AISI 420 F, with carbon of between 0.37 Memorandum are identical in content. breakers and industrial furnaces, and in and 0.43 percent, molybdenum of Changes Since the Preliminary Results rheostats for railway locomotives. The between 1.15 and 1.35 percent, but product is currently available under lower manganese of between 0.20 and Based on our analysis of the proprietary trade names such as ‘‘Gilphy 0.80 percent, phosphorus of no more comments received, we have made the 36.’’3 than 0.025 percent, silicon of between following changes to the margin Certain martensitic precipitation– 0.20 and 0.50 percent, and sulfur of no calculation: • hardenable stainless steel is also more than 0.020 percent. This product In accordance with the major input excluded from the scope of this order. is supplied with a hardness of more test we made adjustments to the This high–strength, ductile stainless than Hv 500 guaranteed after customer reported costs of direct material steel product is designated under the processing, and is supplied as, for costs for certain grades. See ‘‘Cost of Unified Numbering System (‘‘UNS’’) as example, ‘‘GIN6.’’6 Production and Constructed Value S45500–grade steel, and contains, by Calculation Adjustments for the weight, 11 to 13 percent chromium, and Verification Final Results - ThyssenKrupp 7 to 10 percent nickel. Carbon, As provided in section 782(i) of the Mexinox S.A. de C.V., ‘‘ dated manganese, silicon and molybdenum Tariff Act of 1930, as amended (the February 4, 2008 (Final Results Cost each comprise, by weight, 0.05 percent Tariff Act), we verified sales and cost Calculation Memorandum). • or less, with phosphorus and sulfur information provided by Mexinox, using We revised Mexinox’s reported cost each comprising, by weight, 0.03 standard verification procedures such as of production to include a certain percent or less. This steel has copper, the examination of relevant sales and depreciation expense related to a niobium, and titanium added to achieve financial records. Our verification new production line installed results are outlined in the public and during the POR. See id. aging, and will exhibit yield strengths as • high as 1700 Mpa and ultimate tensile proprietary versions of our verification We revised Mexinox’s and Ken–Mac strengths as high as 1750 Mpa after reports, which are on file in the Central Metal Inc.’s financial expense ratio aging, with elongation percentages of 3 Records Unit (CRU) in room 1117 of the to exclude certain interest income percent or less in 50 mm. It is generally main Department building. See offsets from the numerator, and provided in thicknesses between 0.635 ‘‘Verification of the Sales Response of exclude packing from the and 0.787 mm, and in widths of 25.4 Mexinox in the Antidumping Duty denominator. See id. • We revised Mexinox’s general and mm. This product is most commonly Administrative Review of Stainless administrative expenses to exclude used in the manufacture of television Steel Sheet and Strip in Coils from a portion of one of the income tubes and is currently available under Mexico,’’ dated August 16, 2007 (Sales offsets originally claimed by proprietary trade names such as Verification Report). See also Mexinox. See id. 4 ‘‘Verification of the Cost Response of ‘‘Durphynox 17.’’ These changes are discussed in the Finally, three specialty stainless steels Mexinox in the Antidumping Duty relevant sections of the Decision typically used in certain industrial Administrative Review of Stainless Memorandum and Cost Calculation blades and surgical and medical Steel Sheet and Strip in Coils from Memorandum. See also Memorandum instruments are also excluded from the Mexico,’’ dated November 2, 2007 (Cost to the File, ‘‘Analysis of Data Submitted scope of this order. These include Verification Report). by ThyssenKrupp Mexinox S.A. de C.V stainless steel strip in coils used in the Analysis of Comments Received (Mexinox) for the Final Results of production of textile cutting tools (e.g., Stainless Steel Sheet and Strip in Coils carpet knives).5 This steel is similar to All issues raised in the case and rebuttal briefs by parties to this from Mexico (A–201–822)’’ (Final AISI grade 420 but containing, by Analysis Memorandum), dated February weight, 0.5 to 0.7 percent of administrative review are addressed in the Issues and Decision Memorandum 4, 2008. molybdenum. The steel also contains, In addition, we have made changes (Decision Memorandum) from Stephen by weight, carbon of between 1.0 and made to Mexinox’s reported cost J. Claeys, Deputy Assistant Secretary for 1.1 percent, sulfur of 0.020 percent or database as a result of first day Import Administration, to David M. less, and includes between 0.20 and corrections identified by Mexinox Spooner, Assistant Secretary for Import 0.30 percent copper and between 0.20 during our cost verification. See Cost Administration, dated February 4, 2008, and 0.50 percent cobalt. This steel is Verification Report at Exhibit 1. sold under proprietary names such as which is hereby adopted by this notice. ‘‘GIN4 Mo.’’ The second excluded A list of the issues which parties have Final Results of Review stainless steel strip in coils is similar to raised and to which we have responded, We determine the following AISI 420–J2 and contains, by weight, all of which are in the Decision weighted–average percentage margin carbon of between 0.62 and 0.70 Memorandum, is attached to this notice exists for the period July 1, 2005 to June percent, silicon of between 0.20 and as an appendix. Parties can find a 30, 2006: 0.50 percent, manganese of between complete discussion of all issues raised 0.45 and 0.80 percent, phosphorus of no in this review and the corresponding Weighted Av- more than 0.025 percent and sulfur of recommendations in this public Manufacturer / Exporter erage Margin (percentage) no more than 0.020 percent. This steel memorandum, which is on file in the has a carbide density on average of 100 CRU in room B–099 of the main ThyssenKrupp Mexinox S.A. carbide particles per 100 square Department building. In addition, a de C.V...... 2.31 percent complete version of the Decision 3 ‘‘Gilphy 36’’ is a trademark of Imphy, S.A. Memorandum can be accessed directly Assessment 4 ‘‘Durphynox 17’’ is a trademark of Imphy, S.A. 5 This list of uses is illustrative and provided for 6 ‘‘GIN4 Mo,’’ ‘‘GIN5’’ and ‘‘GIN6’’ are the The Department will determine, and descriptive purposes only. proprietary grades of Hitachi Metals America, Ltd. U.S. Customs and Border Protection

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(CBP) shall assess, antidumping duties Amended Final Determination of Sales Comment 9: Year–End Inflation on all appropriate entries, pursuant to at Less Than Fair Value: Stainless Steel Adjustment to G&A section 751(a)(1) of the Tariff Act and 19 Sheet and Strip in Coils from Mexico, 64 Comment 10: Depreciation CFR 351.212(b). The Department FR 40560 (July 27, 1999). These deposit Comment 11: Interest Expense calculated an assessment rate for each requirements, when imposed, shall Comment 12: Packing Expense importer of the subject merchandise remain in effect until publication of the Comment 13: G&A Expense covered by the review. Upon issuance of final results of the next administrative [FR Doc. E8–2464 Filed 2–8–08; 8:45 am] the final results of this review, for any review. BILLING CODE 3510–DS–S importer–specific assessment rates calculated in the final results that are Notification to Interested Parties above de minimis (i.e., at or above 0.50 This notice also serves as a final DEPARTMENT OF COMMERCE percent), we will issue appraisement reminder to importers of their National Oceanic and Atmospheric instructions directly to CBP to assess responsibility under 19 CFR Administration antidumping duties on appropriate 351.402(f)(2) to file a certificate entries by applying the assessment rate regarding the reimbursement of Notice of Intent to Prepare a Joint to the entered value of the merchandise. antidumping duties prior to liquidation Environmental Impact Statement / Pursuant to 19 CFR 356.8(a), the of the relevant entries during this Environmental Impact Report for the Department intends to issue assessment review period. Failure to comply with Proposed Relocation of the National instructions to CBP 41 days after the this requirement could result in the Oceanic and Atmospheric date of publication of these final results Department’s presumption that Administration’s Southwest Fisheries of review. reimbursement of the antidumping Science Center located in La Jolla, The Department clarified its duties occurred and the subsequent California ‘‘automatic assessment’’ regulation on assessment of doubled antidumping May 6, 2003. See Notice of Policy duties. AGENCY: National Oceanic and Concerning Assessment of Antidumping This notice also serves as a reminder Atmospheric Administration (NOAA), Duties, 68 FR 23954 (May 6, 2003). This to parties subject to administrative Commerce. clarification will apply to entries of protective orders (APOs) of their ACTION: Notice of Intent to prepare a subject merchandise during the POR responsibility concerning the joint National Environmental Policy Act produced by Mexinox for which disposition of proprietary information (NEPA) Environmental Impact Mexinox did not know the merchandise disclosed under APO in accordance Statement (EIS) and California was destined for the United States. In with 19 CFR 351.305, which continues Environmental Quality Act (CEQA) such instances, we will instruct CBP to to govern business proprietary Environmental Impact Report (EIR); liquidate unreviewed entries at the information in this segment of the request for comments. 30.85 percent all–others rate if there is proceeding. Timely written notification no company–specific rate for an of the return or destruction of APO SUMMARY: NOAA announces its intent to intermediary involved in the materials or conversion to judicial prepare a joint EIS/EIR to analyze the transaction. See id. for a full discussion protective order is hereby requested. environmental impacts of relocating its of this clarification. Failure to comply with the regulations Southwest Fisheries Science Center (SWFSC) near the Scripps Institution of Cash Deposit Requirements and the terms of an APO is a sanctionable violation. Oceanography (SIO) within the The following cash deposit This notice is issued and published in University of California at San Diego requirements will be effective upon accordance with sections 751(a)(1) and (UCSD) campus in La Jolla, California. publication of these final results for all 777(i)(1) of the Tariff Act. Publication of this notice is to request shipments of the subject merchandise public participation during preparation entered, or withdrawn from warehouse, Dated: February 4, 2008. of the EIS/EIR to help determine the for consumption on or after the David M. Spooner, scope of environmental issues and range publication date of these final results of Assistant Secretaryfor Import Administration. of alternatives to be addressed, and to administrative review, consistent with Appendix – Issues in Decision provide information as to how to section 751(a)(1) of the Tariff Act: (1) Memorandum participate. the cash deposit rate for the reviewed DATES: A public scoping meeting will company will be the rate listed above; General Issues held on the following date:Wednesday, (2) if the exporter is not a firm covered Comment 1: Revocation February 20, 2008 – 5 p.m. tour of in this review, but was covered in a Comment 2: Offsetting for U.S. Sales SWFSC and 6 p.m. meeting start time, previous review or the original less than that Exceed Normal Value SWFSC Lab, Building A, Large fair value (LTFV) investigation, the cash Conference Room, 8604 La Jolla Shores deposit rate will continue to be the Adjustments to United States Price company–specific rate published for the Drive, La Jolla, CA 92037. Comment 3: U.S. Indirect Selling FOR FURTHER INFORMATION CONTACT: most recent period; (3) if the exporter is Expenses not a firm covered in this review, a prior Anne Elston, Environmental Research Analyst, SRI International, 333 review, or the original LTFV Comment 4: Temporary Import Bonds investigation, but the manufacturer is, Ravenswood Avenue, G 234, Menlo the cash deposit rate will be the rate Adjustments to Normal Value Park, CA 94025–3493; e-mai [email protected] established for the most recent period Comment 5: Handling Expense for the manufacturer of the Comment 6: Circumstance–of-Sale SUPPLEMENTARY INFORMATION: The merchandise; and (4) the cash deposit Adjustment National Marine Fisheries Service rate for all other manufacturers or (NMFS) is responsible for the exporters will continue to be 30.85 Cost of Production management, conservation, and percent, the all–others rate established Comment 7: Major Input Rule protection of living marine resources in the LTFV investigation. See Notice of Comment 8: Employee Profit Sharing within the U.S. Exclusive Economic

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Zone. The SWFSC in La Jolla, The most salient and foreseeable South Carolina have satisfied the California, manages and conducts environmental topics of greatest interest conditions placed on their programs and research involving Pacific fisheries and are expected to be aesthetics, therefore have a fully approved coastal marine mammal research for the transportation and traffic, hydrology, nonpoint program. protection and management of these and short term noise effects. NOAA and EPA are making the draft resources throughout the Western Interested parties who wish to submit decisions for the Florida and South Pacific and the Antarctic. The existing suggestions or comments regarding the SWFSC facility, built in 1964, is scope or content on the proposed EIS/ Carolina coastal nonpoint programs currently adjacent to a coastal bluff that EIR are invited to attend the public available for a 30-day public comment is undergoing severe erosion and retreat. scoping meeting. period. If comments are received, NOAA proposes to construct a new NOAA and EPA will consider whether Dated: February 6, 2008. such comments are significant enough SWFSC building to replace its existing William F. Broglie, NMFS administrative and marine to affect the decision to fully approve Chief Administrative Officer, National the programs. research facilities currently located in Oceanic and Atmospheric Administration. La Jolla, California. A minimum of two Copies of the draft Approval existing at risk SWFSC structures would [FR Doc. E8–2457 Filed 2–8–08; 8:45 am] BILLING CODE 3510–12–S Decisions can be found on the NOAA be removed and the property currently Web site at http:// used by NOAA would be returned to the coastalmanagement.noaa.gov/czm/ UCSD for other appropriate uses. DEPARTMENT OF COMMERCE 6217/findings.html or may be obtained NOAA is the lead Federal agency for upon request from: Allison Castellan, implementation of the NEPA. The National Oceanic and Atmospheric Coastal Programs Division (N/ORM3), University of California is the lead Administration agency under the CEQA. The existing Office of Ocean and Coastal Resource and preferred sites for the SWFSC Management, NOS, NOAA, 1305 East- ENVIRONMENTAL PROTECTION West Highway, Silver Spring, Maryland headquarters are at the UCSD campus. AGENCY The NMFS, SIO and other marine 20910, phone (301) 713–3155, x125, e- research organizations conduct Coastal Nonpoint Pollution Control mail [email protected]. independent and joint research at the Program: Approval Decision on DATES: Individuals or organizations SWFSC and its salt water laboratory Florida’s and South Carolina’s Coastal wishing to submit comments on the facilities. Nonpoint Pollution Control Programs draft Approval Decisions should do so The proposed project will require AGENCY: National Oceanic and by March 12, 2008. construction of a new facility to support Atmospheric Administration, U.S. ADDRESSES: Comments should be made SWFSC administrative and marine Department of Commerce, and the U.S. to: John King, Chief, Coastal Programs research operations. The preferred site Environmental Protection Agency. Division (N/ORM3), Office of Ocean and will enable NMFS, SIO, and others to ACTION: Notice of Intent to Approve the Coastal Resource Management, NOS, continue collaboration within a wide Florida and South Carolina Coastal NOAA, 1305 East-West Highway, Silver range of programmatic marine research Nonpoint Programs. Spring, Maryland 20910, phone (301) disciplines. NOAA, in cooperation with SUMMARY: Notice is hereby given of the 713–3155, x188, e-mail UCSD, has decided to prepare a joint [email protected]. EIS/EIR to analyze the environmental intent to fully approve the Florida and South Carolina Coastal Nonpoint impacts of relocating the SWFSC FOR FURTHER INFORMATION CONTACT: Pollution Control Programs (coastal facilities at UCSD. Allison Castellan, Coastal Programs Other alternative actions considered nonpoint program) and of the availability of the draft decision Division, (N/ORM3), Office of Ocean are: and Coastal Resource Management, Use of other NOAA facility locations documents fully approving the Florida and South Carolina coastal nonpoint NOS, NOAA, 1305 East-West Highway, in California and other Pacific Coast Silver Spring, Maryland 20910, phone states; programs. Section 6217 of the Coastal Use of alternative sites at or adjacent Zone Act Reauthorization Amendments (301) 713–3155, x125, e-mail to SIO for collaborative research; and (CZARA), 16 U.S.C. section 1455b, [email protected]. Use of existing alternative NOAA requires States and Territories with (Federal Domestic Assistance Catalog 11.419 facilities and properties away from coastal zone management programs that Coastal Zone Management Program UCSD. have received approval under section Administration) This joint EIS/EIR will analyze 306 of the Coastal Zone Management Dated: February 5, 2008. environmental impacts that may result Act, 16 U.S.C. section 1455, to develop from construction and/or operation of and implement coastal nonpoint John H. Dunnigan, the proposed facilities. These potential programs. Coastal States and Territories Assistant Administrator for Ocean Services environmental issues to be addressed were required to submit their coastal and Coastal Zone Management, National include: land use and coastal zone nonpoint programs to the National Oceanic and Atmospheric Administration. management; aesthetics; geology; Oceanic and Atmospheric Benjamin H. Grumbles, hydrology and water resources; Administration (NOAA) and the U.S. Assistant Administrator, Office of Water, biological resources and protected Environmental Protection Agency (EPA) Environmental Protection Agency. species; utilities and public services; for approval in July 1995. NOAA and [FR Doc. 08–596 Filed 2–8–08; 8:45 am] transportation and traffic circulation, EPA conditionally approved the Florida BILLING CODE 3510–08–M recreational resources; air quality; noise and South Carolina coastal nonpoint and vibration; visual effects and programs on November 18, 1997 and aesthetics; cultural resources; and February 23, 1998, respectively. NOAA socioeconomics and land use; and and EPA have drafted approval cumulative effects. decisions describing how Florida and

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DEPARTMENT OF COMMERCE (MMPA; 16 U.S.C. 1361 et seq.), and the Federal advisory committee meeting regulations governing the taking and will take place. National Oceanic and Atmospheric importing of marine mammals (50 CFR Name of Committee: Missile Defense Administration part 216). Advisory Committee. RIN 0648–XD61 Permit No. 10080, issued on Dates of Meeting: Tuesday, February December 18, 2007 (72 FR 72996) and 26 and Wednesday, February 27, 2008. Marine Mammals; File No. 10080 valid through December 31, 2012, Time: 8 a.m. to 5 p.m. Security authorizes research to examine clearance and visit requests are required AGENCY: National Marine Fisheries expanding populations of the Western for access. Service (NMFS), National Oceanic and North Atlantic stocks of harbor seals Location: 7100 Defense Pentagon, Atmospheric Administration (NOAA), (Phoca vitulina concolor) and gray seals Washington, DC 20301–7100. Commerce. (Halichoerus grypus) in the Gulf of Purpose of the Meeting: At this ACTION: Notice; receipt of application for Maine. In addition to capture and meeting, the Committee will receive amendment. sampling activities, the permit classified briefings by Missile Defense authorizes harassment of up to 1000 Agency senior staff, Program Managers, SUMMARY: Notice is hereby given that Dr. gray seals annually incidental to boat senior Department of Defense leaders, Kathryn A. Ono, Department of approaches to seals on haul outs. In representatives from industry and the Biological Sciences, University of New consideration of the increasing size of Services on the appropriate role for the England, Biddeford, ME, has requested this population, the applicant has Missile Defense Agency in Cruise a major amendment to Permit No. 10080 requested an increase in the number of Missile Defense. for research on marine mammals. seals that may be harassed by this Agenda: Topics tentatively scheduled DATES: Written, telefaxed, or e-mail activity: up to 2000 annually. for discussion include, but are not comments must be received on or before In compliance with the National limited to administrative work; Current March 12, 2008. Environmental Policy Act of 1969 (42 and Potential Service Capabilities and ADDRESSES: The amendment request U.S.C. 4321 et seq.), NMFS has initially Responsibilities in Joint Cruise Missile and related documents are available for determined that issuance of the Defense; Review of Governing review upon written request or by proposed permit is consistent with a Directives; and an Update on MDA’s appointment in the following office(s): category of activities identified in Engineering Capabilities and Permits, Conservation and Education NOAA Administrative Order 216–6 that Responsibilities. Division, Office of Protected Resources, do not individually or cumulatively Meeting Accessibility: Pursuant to 5 NMFS, 1315 East-West Highway, Room have the potential to pose significant U.S.C. 552b, as amended, and 41 CFR 13705, Silver Spring, MD 20910; phone impacts on the quality of the human 102–3.155 the Missile Defense Agency (301) 713–2289; fax (301) 427–2521; and environment and are therefore has determined that the meeting shall be Northeast Region, NMFS, One exempted from further environmental closed to the public. The Director, Blackburn Drive, Gloucester, MA review and requirements to prepare Missile Defense Agency, in consultation 01930–2298; phone (978) 281–9300; fax environmental review documents. with the Missile Defense Agency Office (978) 281–9394. Concurrent with the publication of of General Counsel, has determined in Written comments or requests for a this notice in the Federal Register, writing that the public interest requires public hearing on this application NMFS is forwarding copies of this that all sessions of the committee’s should be mailed to the Chief, Permits, application to the Marine Mammal meeting will be closed to the public Conservation and Education Division, Commission and its Committee of because they will be concerned with F/PR1, Office of Protected Resources, Scientific Advisors. classified information and matters NMFS, 1315 East-West Highway, Room Dated: February 5, 2008. covered by section 5 U.S.C. 552b(c)(1). 13705, Silver Spring, MD 20910. Those Tammy C Adams, Committee’s Designated Federal individuals requesting a hearing should Officer: Mr. Al Bready, [email protected], set forth the specific reasons why a Acting Chief, Permits, Conservation and Education Division, Office of Protected phone/voice mail 703–695–6438, or hearing on this particular request would Resources, National Marine Fisheries Service. mail at 7100 Defense Pentagon, be appropriate. Washington, DC 20301–7100. Comments may also be submitted by [FR Doc. E8–2489 Filed 2–8–08; 8:45 am] BILLING CODE 3510–22–S SUPPLEMENTARY INFORMATION: Pursuant facsimile at (301) 427–2521, provided to 41 CFR 102–3.105(j) and 102–3.140, the facsimile is confirmed by hard copy and section 10(a)(3) of the Federal submitted by mail and postmarked no Advisory Committee Act of 1972, the later than the closing date of the DEPARTMENT OF DEFENSE public or interested organizations may comment period. submit written statements to the Comments may also be submitted by Office of the Secretary of Defense membership of the Missile Defense e-mail. The mailbox address for Missile Defense Advisory Committee Advisory Committee about its mission providing e-mail comments is and functions. Written statements may [email protected]. Include AGENCY: Department of Defense; Missile be submitted at any time or in response in the subject line of the e-mail Defense Agency (MDA). to the stated agenda of a planned comment the following document ACTION: Notice of Closed Meeting. meeting of the Missile Defense Advisory identifier: File No. 10080. Committee. FOR FURTHER INFORMATION CONTACT: SUMMARY: Under the provisions of the All written statements shall be Tammy Adams or Jaclyn Daly, (301) Federal Advisory Committee Act of submitted to the Designated Federal 713–2289. 1972 (5 U.S.C., Appendix, as amended) Officer for the Missile Defense Advisory SUPPLEMENTARY INFORMATION: The and the Government in the Sunshine Committee, in the following formats: amendment is requested under the Act of 1976 (5 U.S.C. 552b, as amended) One hard copy with original signature authority of the Marine Mammal and 41 CFR 102–3.150, the Department and one electronic copy via e-mail Protection Act of 1972, as amended of Defense announces that the following (acceptable file formats: Adobe Acrobat

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PDF, MS Word or MS PowerPoint), and Headquarters Services, 1155 Defense Hires; DoD Beneficiaries; Civilian this individual will ensure that the Pentagon, Washington, DC 20301–1155. Retirees; Dependents; Members of the written statements are provided to the FOR FURTHER INFORMATION CONTACT: Ms. general public treated for a medical membership for their consideration. Cindy Allard at (703) 588–2386. emergency in a DoD Medical Facility; Contact information for the Designated SUPPLEMENTARY INFORMATION: The Office Emergency Contact Person; Care Givers; Federal Officer is as stated above and of the Secretary of Defense systems of Prior Military Eligible for VA benefits’’. can also be obtained from the GSA’s records notices subject to the Privacy CATEGORIES OF RECORDS IN THE SYSTEM: Federal Advisory Committee Act Act of 1974, (5 U.S.C. 552a), as Delete ‘‘index fingerprints’’ at the end Database—https://www.fido.gov/ amended, have been published in the of the sentence and replace with facadatabase/public.asp. Federal Register and are available from ‘‘primary and secondary fingerprints’’. Statements being submitted in the address above. response to the agenda mentioned in The proposed system report, as * * * * * this notice must be received by the required by 5 U.S.C. 552a(r), of the ROUTINE USES OF RECORDS MAINTAINED IN THE Designated Federal Officer at the Privacy Act of 1974, as amended, was SYSTEM, INCLUDING CATEGORIES OF USERS AND address listed at least five calendar days submitted on February 4, 2008, to the THE PURPOSES OF SUCH USES: prior to the meeting which is the subject House Committee on Oversight and Routine Use #5 Delete entry and of this notice. Written statements Government Reform, the Senate replace with ‘‘To Federal agencies and/ received after this date may not be Committee on Homeland Security and or their contractors, in response to their provided to or considered by the Missile Governmental Affairs, and the Office of requests, for purposes of authenticating Defense Advisory Committee until its Management and Budget (OMB) the identity of individuals who, next meeting. The Designated Federal pursuant to paragraph 4c of Appendix I incident to the conduct of official Officer will review all timely to OMB Circular No. A–130, ‘Federal business, present the Common Access submissions with the Missile Defense Agency Responsibilities for Maintaining Card or similar identification as proof of Advisory Committee Chairperson and Records About Individuals,’ dated identity to gain physical or logical ensure they are provided to all members February 8, 1996 (February 20, 1996, 61 access to government and contractor of the Missile Defense Advisory FR 6427). facilities, locations, networks, or Committee before the meeting that is the Dated: February 5, 2008. systems’’. subject of this notice. L.M. Bynum, Add a new routine use: FOR FURTHER INFORMATION CONTACT: Mr. Alternative OSD Federal Register Liaison To the Office of Personnel Al Bready, Designated Federal Officer at Officer, Department of Defense. Management: [email protected], phone/voice mail 703– To conduct computer matching 695–6438, or mail at 7100 Defense DMDC 02 programs regulated by the Privacy Act Pentagon, Washington, DC 20301–7100. of 1974, as amended (5 U.S.C. 552a), for SYSTEM NAME: Dated: February 4, 2008. the purpose of: (1) Providing to OPM all Defense Eligibility Records (October reserve military members eligible for L.M. Bynum, 1, 2007, 72 FR 55757). Alternate OSD Federal Register Liaison TRICARE Reserve Select (TRS) to be Officer, Department of Defense. CHANGES: matched against the OPM Central [FR Doc. E8–2494 Filed 2–8–08; 8:45 am] * * * * * Personnel Data File (OPM/GOVT–1) for the purpose of identifying those reserve BILLING CODE 5001–06–P CATEGORIES OF INDIVIDUALS COVERED BY THE military members who are also Federal SYSTEM: civil service employees. This disclosure DEPARTMENT OF DEFENSE Delete entry and replace with ‘‘Active by OPM will provide the DoD with the duty members and other Uniform FEHB eligibility and Federal Office of the Secretary of Defense Servicemembers, i.e., Department of employment information necessary to Defense (DoD), Coast Guard, NOAA and determine continuing eligibility for the [DOD–2007–OS–0052] USPHS; Reserve Members; National TRS program. Only those reservists not Guard members; State National Guard eligible for FEHB are eligible for TRS. Privacy Act of 1974; System of Employees; Presidential Appointees of (Section 1076d of title 10) Records all Federal Government agencies; DoD * * * * * and Uniformed Service civil service AGENCY: Office of the Secretary, DoD. employees, except Presidential DMDC 02 ACTION: Notice to Alter a System of appointees; Disabled American SYSTEM NAME: Records. veterans; DoD and Uniformed Service Defense Eligibility Records. SUMMARY: The Office of the Secretary of contract employees; Former members Defense is altering a system of records (Reserve service, discharged RR or SR SYSTEM LOCATION: notice in its existing inventory of record following notification of retirement EDS—Service Management Center, systems subject to the Privacy Act of eligibility); Medal of Honor recipients; 1075 West Entrance Drive, Auburn 1974, (5 U.S.C. 552a), as amended. Non-DoD civil service employees; U.S. Hills, MI 48326–2723. Military Academy Students; Non- DATES: This proposed action will be appropriated fund DoD and Uniformed CATEGORIES OF INDIVIDUALS COVERED BY THE effective without further notice on Service employees (NAF); Non-Federal SYSTEM: March 12, 2008 unless comments are Agency Civilian associates, i.e., Active duty members and other received which result in a contrary American Red Cross Emergency Uniform Servicemembers, i.e. determination. Services paid employees, Non-DoD Department of Defense (DoD), Coast ADDRESSES: Send comments to the contract employees; Reserve retirees not Guard, NOAA and USPHS; Reserve Office of the Secretary of Defense, yet eligible for retired pay; Retired Members; National Guard members; Privacy Act Coordinator, Records military members eligible for retired State National Guard Employees; Management Section, Washington pay; Foreign Affiliates; DoD OCONUS Presidential Appointees of all Federal

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Government agencies; DoD and education level; Department of Veterans To authenticate and identify DoD Uniformed Service civil service Affairs disability payment records; affiliated personnel (e.g., contractors); to employees, except Presidential digital signatures where appropriate to assess manpower, support personnel appointees; Disabled American assert validity of data; email (home/ and readiness functions; to perform veterans; DoD and Uniformed Service work); emergency contact information; statistical analyses; identify current DoD contract employees; Former members immunization data; Information civilian and military personnel for (Reserve service, discharged RR or SR Assurance (IA) Work Force information; purposes of detecting fraud and abuse of following notification of retirement language data; military personnel benefit programs; to register current eligibility); Medal of Honor recipients; information (rank, assignment/ DoD civilian and military personnel and Non-DoD civil service employees; U.S. deployment, length of service, military their authorized dependents for Military Academy Students; Non- occupation, education, and benefit purposes of obtaining medical appropriated fund DoD and Uniformed usage); pharmacy benefits; reason examination, treatment or other benefits Service employees (NAF); Non-Federal leaving military service or DoD civilian to which they are entitled; to ensure Agency Civilian associates, i.e. service; Reserve member’s civilian benefit eligibility is retained after American Red Cross Emergency occupation and employment separation from the military; Services paid employees, Non-DoD information; education benefit information will be used by agency contract employees; Reserve retirees not eligibility and usage; special military officials and employees, or authorized yet eligible for retired pay; Retired pay information; SGLI/FGLI; stored contractors, and other DoD Components military members eligible for retired documents for proofing identity and for personnel and manpower studies; pay; Foreign Affiliates; DoD OCONUS association; workforces information (e.g. and to assist in recruiting prior-service Hires; DoD Beneficiaries; Civilian Acquisition, First Responders); Privacy personnel. Retirees; Dependents; Members of the Act audit logs. general public treated for a medical ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND emergency in a DoD Medical Facility; AUTHORITY FOR MAINTENANCE OF THE SYSTEM: THE PURPOSES OF SUCH USES: Emergency Contact Person; Care Givers; 5 U.S.C. 301, Departmental Prior Military Eligible for VA benefits. In addition to those disclosures Regulations; 10 U.S.C. Chapters 53, 54, generally permitted under 5 U.S.C. CATEGORIES OF RECORDS IN THE SYSTEM: 55, 58, and 75; 10 U.S.C. 136; 31 U.S.C. 552a(b) of the Privacy Act, these records Computer files containing 3512(c); 50 U.S.C. Chapter 23, Internal or information contained therein may beneficiary’s name, Service or Social Security; DoD Directive 1341.1, Defense specifically be disclosed outside the Security Number, enrollment number, Enrollment/Eligibility Reporting DoD as a routine use pursuant to 5 relationship of beneficiary to sponsor, System; DoD Instruction 1341.2, DEERS U.S.C. 552a(b)(3) as follows: residence address of beneficiary or Procedures; 5 U.S.C. App. 3 (Pub. L. 95– 1. To the Social Security sponsor, date of birth of beneficiary, sex 452, as amended (Inspector General Act Administration (SSA) to perform of beneficiary, branch of Service of of 1978)); Pub. L. 106–265, Federal computer data matching against the SSA sponsor, dates of beginning and ending Long-Term Care Insurance; and 10 Wage and Earnings Record file for the eligibility, number of family members of U.S.C. 2358, Research and Development purpose of identifying employers of sponsor, primary unit duty location of Projects; 42 U.S.C., Chapter 20, Department of Defense (DoD) sponsor, race and ethnic origin of Subchapter I–G, Registration and Voting beneficiaries eligible for health care. beneficiary, occupation of sponsor, by Absent Uniformed Services Voters This employer data will in turn be used rank/pay grade of sponsor, disability and Overseas Voters in Elections for to identify those employed beneficiaries documentation, Medicare eligibility and Federal Office, Sec. 1973ff, Federal who have employment-related group enrollment data, primary and secondary responsibilities and DoD Directive health insurance, to coordinate fingerprints and photographs of 1000.4, Federal Voting Assistance insurance benefits provided by DoD beneficiaries, blood test results, dental Program (FVAP); Homeland Security with those provided by the other care eligibility codes and dental x-rays. Presidential Directive 12, Policy for a insurance. This information will also be Catastrophic Cap and Deductible common Identification Standard for used to perform computer data (CCD) transactions, including monetary Federal Employees and Contractors; 38 matching against the SSA Master amounts; CHAMPUS/TRICARE claim CFR part 9.20, Traumatic injury Beneficiary Record file for the purpose records containing enrollee, participant protection, Servicemembers’ Group Life of identifying DoD beneficiaries eligible and health care facility, provider data Insurance and Veterans’ Group Life for health care who are enrolled in the such as cause of treatment, amount of Insurance; and E.O. 9397 (SSN). Medicare Program, to coordinate payment, name and Social Security or insurance benefits provided by DoD PURPOSE(S): tax identification, number of providers with those provided by Medicare. or potential providers of care; The purpose of the system is to 2. To other Federal agencies and state, citizenship data/country of birth; civil provide a database for determining local and territorial governments to service employee employment eligibility to DoD entitlements and identify fraud and abuse of the Federal information (agency and bureau, pay privileges; to support DoD health care agency’s programs and to identify plan and grade, nature of action code management programs; to provide debtors and collect debts and and nature of action effective date, identification of deceased members; to overpayment in the DoD health care occupation series, dates of promotion record the issuance of DoD badges and programs. and expected return from overseas, identification cards, i.e. Common 3. To each of the fifty states and the service computation date); claims data; Access Cards (CAC) or beneficiary District of Columbia for the purpose of compensation data; contractor fee cards; and to detect fraud and abuse of conducting an on going computer payment data; date of separation of the benefit programs by claimants and matching program with state Medicaid former enlisted and officer personnel; providers to include appropriate agencies to determine the extent to demographic data (kept on others collection actions arising out of any which state Medicaid beneficiaries may beyond beneficiaries) date of birth, debts incurred as a consequence of such be eligible for Uniformed Services home of record state, sex, race, programs. health care benefits, including

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CHAMPUS, TRICARE, and to recover modifying, or enforcing child support as required and steps taken by DVA to Medicaid monies from the CHAMPUS obligations; or enforcing child custody collect any resulting over payment (38 program. or visitation orders; the relationship to U.S.C. 5304(c)). 4. To provide dental care providers a child receiving benefits provided by a (2) Providing military personnel and assurance of treatment eligibility. third party and the name and SSN of financial data to the Veterans Benefits 5. To Federal agencies and/or their those third party providers who have a Administration, DVA for the purpose of contractors, in response to their legal responsibility. Identifying determining initial eligibility and any requests, for purposes of authenticating delinquent obligors will allow State changes in eligibility status to insure the identity of individuals who, Child Support Enforcement agencies to proper payment of benefits for GI Bill incident to the conduct of official commence wage withholding or other education and training benefits by the business, present the Common Access enforcement actions against the DVA under the Montgomery GI Bill Card or similar identification as proof of obligors. (Title 10 U.S.C., Chapter 1606—Selected identity to gain physical or logical 8. To the American Red Cross for Reserve and Title 38 U.S.C., Chapter access to government and contractor purposes of providing emergency 30—Active Duty), the REAP educational facilities, locations, networks, or notification and assistance to members benefit (Title 10 U.S.C., Chapter 1607), systems. of the Armed Forces, retirees, family and the National Call to Service 6. To State and local child support members or survivors. enlistment educational benefit (Title 10, enforcement agencies for purposes of 9. To the Department of Veterans Chapter 510). The administrative providing information, consistent with Affairs (DVA): responsibilities designated to both the requirements of 29 U.S.C. 1169(a), a. To provide military personnel and agencies by the law require that data be 42 U.S.C. 666(a)(19), and E.O. 12953 pay data for present and former military exchanged in administering the and in response to a National Medical personnel for the purpose of evaluating programs. Support Notice (NMSN) (or equivalent use of veterans’ benefits, validating (3) Providing identification of reserve notice if based upon the statutory benefit eligibility and maintaining the duty, including full time support authority for the NMSN), regarding the health and well being of veterans and National Guard/Reserve military military status of identified individuals their family members. personnel, to the DVA, for the purpose and whether, and for what period of b. To provide identifying military of deducting reserve time served from time, the children of such individuals personnel data to the DVA and its any DVA disability compensation paid are or were eligible for DoD health care insurance program contractor for the or waiver of VA benefit. The law (10 coverage. purpose of notifying separating eligible U.S.C. 12316) prohibits receipt of Reservists of their right to apply for Note: Information requested by the States reserve pay and DVA compensation for is not disclosed when it would contravene Veteran’s Group Life Insurance coverage the same time period, however, it does U.S. national policy or security interests (42 under the Veterans Benefits permit waiver of DVA compensation to U.S.C. 653(e)). Improvement Act of 1996 (38 U.S.C. draw reserve pay. 1968) and for DVA to administer the 7. To the Department of Health and (4) Providing identification of former Traumatic Servicemember’s Group Life Human Services (HHS): active duty military personnel who a. For purposes of providing Insurance (TSGLI) (Traumatic Injury received separation payments to the information, consistent with the Protection Rider to Servicemember’s DVA for the purpose of deducting such requirements of 42 U.S.C. 653 and in Group Life Insurance (TSGLI), 38 CFR repayment from any DVA disability response to an HHS request, regarding 9.20). compensation paid. The law requires c. To register eligible veterans and the military status of identified recoupment of severance payments their dependents for DVA programs. before DVA disability compensation can individuals and whether, and for what d. Providing identification of former period of time, the children of such be paid (10 U.S.C. 1174). military personnel and survivor’s f. To provide identifying military individuals are or were eligible for DoD financial benefit data to DVA for the healthcare coverage. personnel data to the DVA for the purpose of identifying military retired purpose of notifying such personnel of Note: Information requested by HHS is not pay and survivor benefit payments for information relating to educational disclosed when it would contravene U.S. use in the administration of the DVA’s assistance as required by the Veterans national policy or security interests (42 Compensation and Pension Program (38 Programs Enhancement Act of 1998 (38 U.S.C. 653(e)). U.S.C. 5106). The information is to be U.S.C. 3011 and 3034). b. For purposes of providing used to process all DVA award actions 10. To DoD Civilian Contractors and information so that specified Medicare more efficiently, reduce subsequent grantees for the purpose of performing determinations, specifically late overpayment collection actions, and research on manpower problems for enrollment and waiver of penalty, can minimize erroneous payments. statistical analyses. be made for eligible (1) DoD military e. To conduct computer matching 11. To consumer reporting agencies to retirees and (2) spouses (or former programs regulated by the Privacy Act obtain current addresses of separated spouses) and/or dependents of either of 1974, as amended (5 U.S.C. 552a), for military personnel to notify them of military retirees or active duty military the purposes of: potential benefits eligibility. personnel, pursuant to section 625 of (1) Providing full identification of 12. To Defense contractors to monitor the Medicare Prescription Drug, active duty military personnel, the employment of former DoD Improvement, and Modernization Act of including full time National Guard/ employees and military members 2002 (as codified at 42 U.S.C. 1395p and Reserve support personnel, for use in subject to the provisions of 41 U.S.C. 1395r). the administration of DVA’s 423. c. To the Office of Child Support Compensation and Pension benefit 13. To Federal and Quasi Federal Enforcement, Federal Parent Locator program. The information is used to agencies, territorial, state, and local Service, pursuant to 42 U.S.C. 653 and determine continued eligibility for DVA governments to support personnel 653a; to assist in locating individuals for disability compensation to recipients functions requiring data on prior the purpose of establishing parentage; who have returned to active duty so that military service credit for their establishing, setting the amount of, benefits can be adjusted or terminated employees or for job applications. To

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determine continued eligibility and help 15. To Federal and State agencies for RETRIEVABILITY: eliminate fraud and abuse in benefit purposes of obtaining socioeconomic Records about individuals are programs and to collect debts and over information on Armed Forces personnel retrieved by an algorithm which uses payments owed to these programs. so that analytical studies can be name, Social Security Number, date of Information released includes name, conducted with a view to assessing the birth, rank, and duty location as Social Security Number, and military or present needs and future requirements possible inputs. Retrievals are made on civilian address of individuals. To of such personnel. summary basis by geographic detect fraud, waste and abuse pursuant 16. To Federal and state agencies to characteristics and location and to the authority contained in the validate demographic data (e.g., Social demographic characteristics. Inspector General Act of 1978, as Security Number, citizenship status, Information about individuals will not amended (Pub. L. 95–452) for the date and place of birth, etc.) for be distinguishable in summary purpose of determining eligibility for, individuals in DoD personnel and pay retrievals. Retrievals for the purposes of and/or continued compliance with, any files so that accurate information is generating address lists for direct mail Federal benefit program requirements. available in support of DoD distribution may be made using 14. To Federal and Quasi Federal requirements. selection criteria based on geographic agencies, territorial, state and local 17. To the Bureau of Citizenship and and demographic keys. governments, and contractors and Immigration Services, Department of SAFEGUARDS: grantees for the purpose of supporting Homeland Security, for purposes of research studies concerned with the facilitating the verification of Computerized records are maintained health and well being of active duty, individuals who may be eligible for in a controlled area accessible only to reserve, and retired personnel or expedited naturalization (Pub. L. 108– authorized personnel. Entry to these veterans, to include family members. 136, Section 1701, and E.O. 13269, areas is restricted to those personnel DMDC will disclose information from Expedited Naturalization). with a valid requirement and this system of records for research 18. To the Federal voting program to authorization to enter. Physical entry is purposes when DMDC: provide unit and email addresses for the restricted by the use of locks, guards, a. Has determined that the use or purpose of notifying the military and administrative procedures (e.g., fire disclosure does not violate legal or members where to obtain absentee protection regulations). policy limitations under which the ballots. Access to personal information is record was provided, collected, or restricted to those who require the 19. To the Department of Homeland obtained; records in the performance of their Security for the conduct of studies b. Has determined that the research official duties, and to the individuals related to the health and well-being of purpose (1) cannot be reasonably who are the subjects of the record or Coast Guard members and to accomplished unless the record is their authorized representatives. Access authenticate and identify Coast Guard provided in individually identifiable to personal information is further personnel. form, and (2) warrants the risk to the restricted by the use of passwords, 20. To Coast Guard recruiters in the privacy of the individual that additional which are changed periodically. All performance of their assigned duties. exposure of the record might bring; individuals granted access to this 21. To the Office of Personnel c. Has required the recipient to (1) system of records are to have received Management: To conduct computer establish reasonable administrative, Information Assurance and Privacy Act matching programs regulated by the technical, and physical safeguards to training. prevent unauthorized use or disclosure Privacy Act of 1974, as amended (5 of the record, and (2) remove or destroy U.S.C. 552a), for the purpose of: (1) RETENTION AND DISPOSAL: the information that identifies the Providing to OPM all reserve military Data is destroyed when superseded or individual at the earliest time at which members eligible for TRICARE Reserve when no longer needed for operational removal or destruction can be Select (TRS) to be matched against the purposes, whichever is later. accomplished consistent with the OPM Central Personnel Data File (OPM/ SYSTEM MANAGER(S) AND ADDRESS: purpose of the research project, unless GOVT–1) for the purpose of providing the recipient has presented adequate those reserve military members that are Deputy Director, Defense Manpower justification of a research or health also Federal civil service employees. Data Center, DoD Center Monterey Bay, nature for retaining such information, This disclosure by OPM will provide 400 Gigling Road, Seaside, CA 93955– and (3) make no further use or the DoD with the FEHB eligibility and 6771. disclosure of the record except (A) in Federal employment information NOTIFICATION PROCEDURE: necessary to determine continuing emergency circumstances affecting the Individuals seeking to determine eligibility for the TRS program. Only health or safety of any individual, (B) whether information about themselves those reservists not eligible for FEHB are for use in another research project, is contained in this system should eligible for TRS. (Section 1076d of title under these same conditions, and with address written inquiries to the Deputy 10). written authorization of the Department, Director, Defense Manpower Data The DoD ‘‘Blanket Routine Uses’’ (C) for disclosure to a properly Center, DoD Center Monterey Bay, 400 published at the beginning of OSD’s identified person for the purpose of an Gigling Road, Seaside, CA 93955–6771. audit related to the research project, if compilation of systems of records Written requests should contain the information that would enable research notices apply to this system. full name, Social Security Number subjects to be identified is removed or POLICIES AND PRACTICES FOR STORING, (SSN), date of birth, and current address destroyed at the earliest opportunity RETRIEVING, ACCESSING, RETAINING, AND and telephone number of the individual. consistent with the purpose of the audit, DISPOSING OF RECORDS IN THE SYSTEM: or (D) when required by law; RECORD ACCESS PROCEDURES: d. Has secured a written statement STORAGE: Individuals seeking access to attesting to the recipients’ Records are maintained on magnetic information about themselves contained understanding of, and willingness to tapes and disks, and are housed in a in this system should address written abide by these provisions. controlled computer media library. inquiries to the Privacy Act Officer,

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Office of Freedom of Information, systems of records subject to the Privacy DEPARTMENT OF DEFENSE Washington Headquarters Services, Act of 1974 (5 U.S.C. 552a), as amended, 1155 Defense Pentagon, Washington, DC have been published in the Federal Department of the Army 20301–1155. Register and are available from the Written requests should contain the address above. Board of Visitors, United States Military Academy (USMA) full name, Social Security Number The specific changes to the record (SSN), date of birth, and current address system being amended are set forth AGENCY: Department of the Army, DoD. and telephone number of the individual. below followed by the notice, as ACTION: Meeting notice. CONTESTING RECORD PROCEDURES: amended, published in its entirety. The SUMMARY: The OSD rules for accessing records, proposed amendment is not within the Under the provisions of the for contesting contents and appealing purview of subsection (r) of the Privacy Federal Advisory Committee Act of initial agency determinations are Act of 1974 (5 U.S.C. 552a), as amended, 1972 (5 U.S.C., Appendix, as amended), published in OSD Administrative which requires the submission of a new the Government in the Sunshine Act of Instruction 81; 32 CFR part 311; or may or altered system report. 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102–3.150, the Department of be obtained from the Privacy Act Dated: February 5, 2008. Officer, Office of Freedom of Defense announces that the following L.M. Bynum, Federal advisory committee meeting Information, Washington Headquarters Alternate OSD Federal Register Liaison Services, 1155 Defense Pentagon, will take place: Officer, Department of Defense. 1. Name of Committee: United States Washington, DC 20301–1155. DMDC 09 Military Academy Board of Visitors. RECORD SOURCE CATEGORIES: 2. Date: Wednesday, February 27, Individuals, personnel, pay, and SYSTEM NAME: 2008. benefit systems of the military and 3. Time: 1 p.m.–4 p.m. Members of civilian departments and agencies of the Archival Purchase Card File (January the public wishing to attend the meeting Defense Department, the Coast Guard, 31, 2008, 73 FR 5819). will need to show photo identification the Public Health Service, the National in order to gain access to the meeting REASON: Oceanic and Atmospheric location. All participants are subject to Administration, Department of Veterans The Defense Manpower Data Center security screening. Affairs, and other Federal agencies. (DMDC) no longer receives Privacy Act 4. Location: Rayburn House Office program support from the Defense Building, Washington, DC 20515 (exact EXEMPTIONS CLAIMED FOR THE SYSTEM: Logistics Agency (DLA). DMDC will room location is to be determined and None. receive privacy support from the Office will be published prior to February 27, [FR Doc. E8–2492 Filed 2–8–08; 8:45 am] of the Secretary of Defense (OSD) under 2008). 5. Purpose of the Meeting: This is the BILLING CODE 5001–06–P Administrative Instruction 81. The above system notice was transferred to 2008 Organizational Meeting of the the OSD’s inventory of Privacy Act USMA Board of Visitors (BoV). DEPARTMENT OF DEFENSE systems of records as DMDC 09, Members of the Board will be provided Archival Purchase Card File on January updates on Academy issues. Office of the Secretary of Defense 31, 2008, 73 FR 5819; DLA is deleting 6. Agenda: The Academy leadership will provide the Board updates on the [DoD–2008–OS–0008] this notice from its Privacy Act systems of records inventory. following: Accreditation, United States Privacy Act of 1974; Systems of Military Academy Preparatory School Records DMDC 10 (USMAPS) move to West Point, Gender Relations, The Academy Campaign AGENCY: Defense Logistics Agency, SYSTEM NAME: Plan, Infrastructure, Residential DOD. Defense Biometric Identification Data Communities Initiative (RCI), Resource ACTION: Notice to Delete Two Systems of System (DBIDS) (January 31, 2008, 73 Update, Class Composition Goals, and Records. FR 5818). Cadet Surveys. The Board will discuss proposed meeting dates for the 2008 SUMMARY: The Defense Logistics Agency REASON: Summer and Fall meetings, and will is deleting two systems of records hold elections for the 2008 Chairperson notices to its existing inventory of The Defense Manpower Data Center and Vice-Chairperson. record systems subject to the Privacy (DMDC) no longer receives Privacy Act 7. Public’s Accessibility to the Act of 1974 (5 U.S.C. 552a), as amended. program support from the Defense Meeting: Pursuant to 5 U.S.C. 552b and DATES: This action will be effective Logistics Agency (DLA). DMDC will 41 CFR 102–3.140 through 102–3.165, without further notice on March 12, receive privacy support from the Office and the availability of space, this 2008 unless comments are received that of the Secretary of Defense (OSD) under meeting is open to the public. Seating is would result in a contrary Administrative Instruction 81. The on a first-come basis. determination. above system notice was transferred to 8. Committee’s Designated Federal ADDRESSES: Send comments to the the OSD’s inventory of Privacy Act Officer or Point of Contact: Ms. Cynthia Privacy Act Officer, Headquarters, systems of records as DMDC 10, Defense Kramer, (845) 938–5078, Defense Logistics Agency, ATTN: DP, Biometric Identification Data System [email protected]. (DBIDS) on January 31, 2008, 73 FR 8725 John J. Kingman Road, Stop 2533, SUPPLEMENTARY INFORMATION: Any 5818; therefore, DLA is deleting this Fort Belvoir, VA 22060–6221. member of the public is permitted to file notice from its Privacy Act systems of FOR FURTHER INFORMATION CONTACT: Ms. a written statement with the USMA records inventory. Jody Sinkler at (703) 767–5045. Board of Visitors. Written statements SUPPLEMENTARY INFORMATION: The [FR Doc. E8–2496 Filed 2–8–08; 8:45 am] should be sent to the Designated Federal Defense Logistics Agency notices for BILLING CODE 5001–06–P Officer (DFO) at: United States Military

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Academy, Office of the Secretary of the would defeat the purpose of the have been used to indicate trends in the General Staff (MASG), 646 Swift Road, information collection, violate State or provision of services from year to year. West Point, NY 10996–1905 or faxed to Federal law, or substantially interfere Requests for copies of the information the Designated Federal Officer (DFO) at with any agency’s ability to perform its collection submission for OMB review (845) 938–3214. Written statements statutory obligations. The IC Clearance may be accessed from http:// must be received no later than five Official, Regulatory Information edicsweb.ed.gov, by selecting the working days prior to the next meeting Management Services, Office of ‘‘Browse Pending Collections’’ link and in order to provide time for member Management, publishes that notice by clicking on link number 3535. When consideration. By rule, no member of containing proposed information you access the information collection, the public attending open meetings will collection requests prior to submission click on ‘‘Download Attachments’’ to be allowed to present questions from the of these requests to OMB. Each view. Written requests for information floor or speak to any issue under proposed information collection, should be addressed to U.S. Department consideration by the Board. grouped by office, contains the of Education, 400 Maryland Avenue, FOR FURTHER INFORMATION CONTACT: Ms. following: (1) Type of review requested, SW., LBJ, Washington, DC 20202–4537. Cynthia Kramer, (845) 938–5078 (fax: e.g. new, revision, extension, existing or Requests may also be electronically 845–938–3214) or via e-mail: reinstatement; (2) Title; (3) Summary of mailed to [email protected] or faxed [email protected]. the collection; (4) Description of the to 202–401–0920. Please specify the need for, and proposed use of, the complete title of the information Brenda S. Bowen, information; (5) Respondents and collection when making your request. Army Federal Register Liaison Officer. frequency of collection; and (6) Comments regarding burden and/or [FR Doc. E8–2499 Filed 2–8–08; 8:45 am] Reporting and/or Recordkeeping the collection activity requirements BILLING CODE 3710–08–P burden. OMB invites public comment. should be electronically mailed to Dated: February 5, 2008. [email protected]. Individuals who use a telecommunications device for the Angela C. Arrington, DEPARTMENT OF EDUCATION deaf (TDD) may call the Federal IC Clearance Official, Regulatory Information Information Relay Service (FIRS) at 1– Management Services, Office of Management. Submission for OMB Review; 800–877–8339. Comment Request Office of Special Education and [FR Doc. E8–2490 Filed 2–8–08; 8:45 am] Rehabilitative Services AGENCY: Department of Education. BILLING CODE 4000–01–P SUMMARY: The IC Clearance Official, Type of Review: Reinstatement. Regulatory Information Management Title: Annual Protection and Services, Office of Management invites Advocacy for Assistive Technology DEPARTMENT OF EDUCATION comments on the submission for OMB (PAAT) Program Performance Report. Frequency: Annually. Notice of Proposed Information review as required by the Paperwork Collection Requests Reduction Act of 1995. Affected Public: Not-for-profit institutions; State, Local, or Tribal AGENCY: Department of Education. DATES: Interested persons are invited to Gov’t, SEAs or LEAs. submit comments on or before March Reporting and Recordkeeping Hour SUMMARY: The IC Clearance Official, 12, 2008. Burden: Responses: 57. Burden Hours: Regulatory Information Management ADDRESSES: Written comments should 912. Services, Office of Management, invites be addressed to the Office of Abstract: The Annual PAAT Program comments on the proposed information Information and Regulatory Affairs, Performance Report will be used to collection requests as required by the Attention: Education Desk Officer, analyze and evaluate the PAAT Program Paperwork Reduction Act of 1995. Office of Management and Budget, 725 administered by eligible systems in DATES: Interested persons are invited to 17th Street, NW., Room 10222, states. These systems provide services to submit comments on or before April 11, Washington, DC 20503. Commenters are eligible individuals with disabilities to 2008. encouraged to submit responses assist in the acquisition, utilization, or SUPPLEMENTARY INFORMATION: Section electronically by e-mail to maintenance of assistive technology 3506 of the Paperwork Reduction Act of [email protected] or via fax devices or assistive technology services. 1995 (44 U.S.C. Chapter 35) requires to (202) 395–6974. Commenters should The Rehabilitation Services that the Office of Management and include the following subject line in Administration (RSA) uses the form to Budget (OMB) provide interested their response ‘‘Comment: [insert OMB meet specific data collection Federal agencies and the public an early number], [insert abbreviated collection requirements of section 5 of the opportunity to comment on information name, e.g., ‘‘Upward Bound Assistive Technology Act of 1998, as collection requests. OMB may amend or Evaluation’’]. Persons submitting amended (AT Act). PAAT programs waive the requirement for public comments electronically should not must report annually using the form, consultation to the extent that public submit paper copies. which is due on or before December 30 participation in the approval process SUPPLEMENTARY INFORMATION: Section of each year. The Annual PAAT would defeat the purpose of the 3506 of the Paperwork Reduction Act of Performance Report has enabled RSA to information collection, violate State or 1995 (44 U.S.C. Chapter 35) requires furnish the President and Congress with Federal law, or substantially interfere that the Office of Management and data on the provision of protection and with any agency’s ability to perform its Budget (OMB) provide interested advocacy services and has helped to statutory obligations. The IC Clearance Federal agencies and the public an early establish a sound basis for future Official, Regulatory Information opportunity to comment on information funding requests. Data from the form Management Services, Office of collection requests. OMB may amend or have been used to evaluate the Management, publishes that notice waive the requirement for public effectiveness of eligible systems within containing proposed information consultation to the extent that public individual states in meeting annual collection requests prior to submission participation in the approval process priorities and objectives. These data also of these requests to OMB. Each

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proposed information collection, Requests may also be electronically to make oral statements regarding any of grouped by office, contains the mailed to [email protected] or faxed the items on the agenda, you should following: (1) Type of review requested, to 202–401–0920. Please specify the contact Karen Talamini at (301) 903– e.g. new, revision, extension, existing or complete title of the information 6594 (fax) or reinstatement; (2) Title; (3) Summary of collection when making your request. [email protected] (e- the collection; (4) Description of the Comments regarding burden and/or mail). You must make your request for need for, and proposed use of, the the collection activity requirements an oral statement at least 5 business information; (5) Respondents and should be electronically mailed to days prior to the meeting. Reasonable frequency of collection; and (6) [email protected]. Individuals who provision will be made to include the Reporting and/or Recordkeeping use a telecommunications device for the scheduled oral statements on the burden. OMB invites public comment. deaf (TDD) may call the Federal agenda. The Chairperson of the The Department of Education is Information Relay Service (FIRS) at 1– Committee will conduct the meeting to especially interested in public comment 800–877–8339. facilitate the orderly conduct of addressing the following issues: (1) Is [FR Doc. E8–2491 Filed 2–8–08; 8:45 am] business. Public comment will follow this collection necessary to the proper the 10-minute rule. This notice is being BILLING CODE 4000–01–P functions of the Department; (2) will published less than 15 days before the this information be processed and used date of the meeting due to programmatic in a timely manner; (3) is the estimate issues. DEPARTMENT OF ENERGY of burden accurate; (4) how might the Minutes: The minutes of this meeting Department enhance the quality, utility, Office of Science; Basic Energy will be available for public review and and clarity of the information to be Sciences Advisory Committee copying within 30 days at the Freedom collected; and (5) how might the of Information Public Reading Room; Department minimize the burden of this AGENCY: Department of Energy. 1E–190, Forrestal Building; 1000 collection on the respondents, including ACTION: Notice of open meeting. Independence Avenue, SW.; through the use of information Washington, DC 20585; between 9 a.m. technology. SUMMARY: This notice announces a and 4 p.m., Monday through Friday, meeting of the Basic Energy Sciences except holidays. Dated: February 5, 2008. Advisory Committee (BESAC). Federal Angela C. Arrington, Issued in Washington, DC, on February 5, Advisory Committee Act (Pub. L. 92– 2008. IC Clearance Official, Regulatory Information 463, 86 Stat. 770) requires that public Rachel Samuel, Management Services, Office of Management. notice of these meetings be announced Deputy Advisory Committee Management Institute of Education Sciences in the Federal Register. Officer. Type of Review: New. DATES: Thursday, February 21, 2008, [FR Doc. E8–2488 Filed 2–8–08; 8:45 am] 9:30 a.m. to 5:15 p.m., and Friday, Title: Adult ESL Literacy Impact BILLING CODE 6450–01–P Study. February 22, 2008, 8:30 a.m. to 12 p.m. Frequency: On Occasion; Weekly; ADDRESSES: Bethesda North Marriott Annually. Hotel and Conference Center, 5701 DEPARTMENT OF ENERGY Affected Public: State, Local, or Tribal Marinelli Road, North Bethesda, MD Gov’t, SEAs or LEAs; Individuals or 20852. Office of Energy Efficiency and Renewable Energy household. FOR FURTHER INFORMATION CONTACT: Reporting and Recordkeeping Hour Karen Talamini; Office of Basic Energy State Energy Advisory Board Burden: Responses: 9,080. Burden Sciences; U.S. Department of Energy; Hours: 2,108. Germantown Building, Independence AGENCY: Department of Energy, Office of Abstract: The Adult ESL Literacy Avenue, Washington, DC 20585; Energy Efficiency and Renewable Impact Study is an evaluation of the Telephone: (301) 903–4563. Energy. effectiveness of a literacy curriculum in SUPPLEMENTARY INFORMATION: ACTION: Notice of open teleconference. improving the English reading and Purpose of the Meeting: The purpose speaking skills of adult ESL learners SUMMARY: This notice announces a of this meeting is to provide advice and teleconference of the State Energy who have low levels of literacy in their guidance with respect to the basic native language. This evaluation Advisory Board (STEAB). The Federal energy sciences research program. Advisory Committee Act (Pub. L. 92– employs a random assignment design to Tentative Agenda: Agenda will compare the outcomes of adult learners 463; 86 Stat. 770) requires that public include discussions of the following: notice of these teleconferences be who receive the literacy instruction to • News from DOE. announced in the Federal Register. those who receive the instruction that is • News from the Office of Basic normally provided through adult Energy Sciences. DATES: February 21, 2008 from 2 p.m. to education programs. • Update on COV of the Chemical 3 p.m. EDT. Requests for copies of the proposed Sciences, Geosciences and Biosciences FOR FURTHER INFORMATION CONTACT: Gary information collection request may be Division. Burch, STEAB Designated Federal accessed from http://edicsweb.ed.gov, • Reports of the BESAC Grand Officer, Acting Assistant Manager, by selecting the ‘‘Browse Pending Challenges Subcommittee. Office of Commercialization and & Collections’’ link and by clicking on • Update of the Linac Coherent Light Project Management, Golden Field link number 3580. When you access the Source. Office, U.S. Department of Energy, 1617 information collection, click on • Update on Nanotechnology. Cole Boulevard, Golden, CO 80401, ‘‘Download Attachments’’ to view. Public Participation: The meeting is Telephone 303/275–4801. Written requests for information should open to the public. If you would like to SUPPLEMENTARY INFORMATION: be addressed to U.S. Department of file a written statement with the Purpose of the Board: To make Education, 400 Maryland Avenue, SW., Committee, you may do so either before recommendations to the Assistant LBJ, Washington, DC 20202–4537. or after the meeting. If you would like Secretary for the Office of Energy

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Efficiency and Renewable Energy find it difficult to do so within that operators, and coal-consuming electric regarding goals and objectives, period, you should contact the OMB utilities. programmatic and administrative Desk Officer for DOE listed below as 7. Business or other for-profit; Federal policies, and to otherwise carry out the soon as possible. Government; State, Local or Tribal Board’s responsibilities as designated in ADDRESSES: Send comments to OMB Government. the State Energy Efficiency Programs Desk Officer for DOE, Office of 8. 4,474 hours. Improvement Act of 1990 (Pub. L. 101– Information and Regulatory Affairs, Due to the changing structure of the 440). Office of Management and Budget. To electric power industry over the course Tentative Agenda: Update members ensure receipt of the comments by the of the last several years, the EIA–20 on routine business matters. due date, submission by fax at (202) standby survey will include Public Participation: The 395–7285 or e-mail to independent power producers in the teleconference is open to the public. [email protected] is event of an emergency, thus activating Written statements may be filed with recommended. The mailing address is the use of the survey to provide the Board either before or after the 726 Jackson Place, NW., Washington, information on the primary sources of meeting. Members of the public who DC 20503. The OMB DOE Desk Officer electric power in the U.S. wish to make oral statements pertaining may be telephoned at (202) 395–7345. Please refer to the supporting to agenda items should contact Gary (A copy of your comments should also statement as well as the proposed forms Burch at the address or telephone be provided to EIA’s Statistics and and instructions for more information number listed above. Requests to make Methods Group at the address below.) about the purpose, who must report, oral comments must be received five when to report, where to submit, the days prior to the conference call; FOR FURTHER INFORMATION CONTACT: elements to be reported, detailed reasonable provision will be made to Requests for additional information instructions, provisions for include requested topic(s) on the should be directed to Grace Sutherland. confidentiality, and uses (including agenda. The Chair of the Board is To ensure receipt of the comments by possible nonstatistical uses) of the empowered to conduct the call in a the due date, submission by fax (202– information. For instructions on fashion that will facilitate the orderly 586–5271) or e-mail obtaining materials, see the FOR FURTHER conduct of business. This notice is being ([email protected]) is also INFORMATION CONTACT section. recommended. The mailing address is published less than 15 days before the Statutory Authority: Section 3507(h)(1) of date of the meeting due to programmatic Statistics and Methods Group (EI–70), Forrestal Building, U.S. Department of the Paperwork Reduction Act of 1995 (Pub. issues. L. No. 104–13) (44 U.S.C. 3501 et seq., at Energy, Washington, DC 20585–0670. 3507(h)(1)) Notes: The notes of the teleconference will Ms. Sutherland may be contacted by be available for public review and copying telephone at (202) 586–6264. Issued in Washington, DC, February 5, within 60 days on the STEAB Web site, 2008. SUPPLEMENTARY INFORMATION: http://www.steab.org. This Jay H. Casselberry, section contains the following Issued at Washington, DC, on February 5, Agency Clearance Officer, Agency Clearance information about the energy Officer, Energy Information Administration. 2008. information collection submitted to [FR Doc. E8–2486 Filed 2–8–08; 8:45 am] Rachel Samuel, OMB for review: (1) The collection Deputy Committee Management Officer. numbers and title; (2) the sponsor (i.e., BILLING CODE 6450–01–P [FR Doc. E8–2487 Filed 2–8–08; 8:45 am] the Department of Energy component; BILLING CODE 6450–01–P (3) the current OMB docket number (if DEPARTMENT OF ENERGY applicable); (4) the type of request (i.e., new, revision, extension, or Federal Energy Regulatory DEPARTMENT OF ENERGY reinstatement); (5) response obligation Commission (i.e., mandatory, voluntary, or required Energy Information Administration to obtain or retain benefits); (6) a [Docket No. IC08–566–000; FERC–566] description of the need for and Agency Information Collection Commission Information Collection proposed use of the information; (7) a Activities: Submission for OMB Activities, Proposed Collection; categorical description of the likely Review; Comment Request Comment Request; Extension respondents; and (8) an estimate of the AGENCY: Energy Information total annual reporting burden (i.e., the February 1, 2008. Administration (EIA), Department of estimated number of likely respondents AGENCY: Federal Energy Regulatory Energy (DOE). times the proposed frequency of Commission, DOE. ACTION: Agency Information Collection response per year times the average ACTION: Notice. Activities: Submission for OMB Review; hours per response). Comment Request. 1. Forms EIA–1, 3, 4, 5, 6Q, 7A, 8A SUMMARY: In compliance with the and 20, ‘‘Coal Program Package.’’ requirements of section 3506(c)(2)(a) of SUMMARY: The EIA has submitted the 2. Energy Information Administration. the Paperwork Reduction Act of 1995 Coal Program Package to the Office of 3. OMB Number 1905–0167. (Pub. L. No. 104–13), the Federal Energy Management and Budget (OMB) for 4. Revision and three-year extension. Regulatory Commission (Commission) is revision and a three-year extension 5. Mandatory. soliciting public comment on the under section 3507(h)(1) of the 6. The coal surveys collect data on specific aspects of the information Paperwork Reduction Act of 1995 (Pub. coal production, consumption, stocks, collection described below. L. 104–13) (44 U.S.C. 3501 et seq., at prices, imports and exports. Data are DATES: Comments on the collection of 3507(h)(1)). published in various EIA publications. information are due April 7, 2008. DATES: Comments must be filed by Respondents are manufacturing plants, ADDRESSES: Copies of sample filings of March 12, 2008. If you anticipate that producers of coke, purchasers and the proposed information collection can you will be submitting comments but distributors of coal, coal mining be obtained from the Commission’s

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Documents & Filing Web site (http:// All comments may be viewed, printed amend or waive these statutory www.ferc.gov/docs-filings/elibrary.asp) or downloaded remotely via the Internet requirements. Requirements the or by contacting the Federal Energy through FERC’s homepage using the Commission has the authority to amend, Regulatory Commission, Attn: Michael eLibrary link. For user assistance, such as the filing format and method, Miller, Office of the Executive Director, contact [email protected] or are found in the Commission’s ED–34, 888 First Street, NE., toll-free at (866) 208–3676 or for TTY, regulations in 18 CFR 46.3. Washington, DC 20426. Comments may contact (202) 502–8659. The FPA requires public utilities to be filed either in paper format or FOR FURTHER INFORMATION CONTACT: publish and file with the Commission a electronically. Those parties filing Michael Miller may be reached by list of their largest customers and the electronically do not need to make a telephone at (202) 502–8415, by fax at identification of public utility board paper filing. For paper filing, the (202) 273–0873, and by e-mail at members who are also board members original and 14 copies of such [email protected]. of the utility’s largest customers.1 This comments should be submitted to the SUPPLEMENTARY INFORMATION: The data on interlocking directorates allows Secretary of the Commission, Federal information collected under the the Commission to inquire into and Energy Regulatory Commission, 888 requirements of FERC–566 ‘‘Annual determine whether public or private First Street, NE., Washington, DC 20426 Report of a Utility’s Twenty Largest interests will be adversely affected by and refer to Docket No. IC08–566–000. Purchasers’’ (OMB No. 1902–0114) is the holding of such positions. Under the current OMB authorization, Documents filed electronically via the used by the Commission to implement the statutory provisions of section 305 the Commission requires the filing of Internet must be prepared in the of the Federal Power Act (FPA), (16 FERC–566 in hardcopy. However, the acceptable filing format and in U.S.C. 825d), as amended by Title II, Commission has directed under RM07– compliance with the Federal Energy 2 section 211 of the Public Utility 16–000 to allow for the voluntary Regulatory Commission’s submission Regulatory Policies Act of 1978 electronic submittal of many required guidelines. Complete filing instructions (PURPA). FPA section 305—Officials filings, including the FERC–566, which and acceptable filing formats are Dealing in Securities; Interlocking is expected by early 2008. The available at (http://www.ferc.gov/help/ Directorates—requires that each public implementation of eFiling 7.0 would submission-guide/electronic-media.asp). utility annually ‘‘publish’’ a list, eliminate the current burden of mailing To file the document electronically, pursuant to rules prescribed by the or hand-delivering these filings in access the Commission’s Web site and Commission, of the purchasers of the 20 hardcopy. click on Documents & Filing, E-Filing largest annual amounts of electric Action: The Commission is requesting (http://www.ferc.gov/docs-filing/ energy sold by such public utility a three-year extension of the current efiling.asp), and then follow the during any one of three previous expiration date and proposes to make instructions for each screen. First time calendar years. The required filers, the the filing of the FERC–566 more users will have to establish a user name filing deadline, the specific information efficient by the end of 2007 under and password. The Commission will to be filed, and the requirement to RM07–16–000. send an automatic acknowledgement to publicly provide the information are all Burden Statement: Public reporting the sender’s e-mail address upon receipt specifically mandated by the FPA. The burden for this collection is estimated of comments. Commission is not empowered to as:

Number of Average responses burden Total annual Number of respondents annually per hours per burden respondent response hours

(1) (2) (3) (1)×(2)×(3)

242 ...... 1 6 1,452

The estimated total cost to respondents (3) adjusting existing ways to comply information technology. Indirect or is $85,261, [1,452 hours divided by with any previously applicable filing overhead costs are costs incurred by an 2,080 hours 3 (times $126,384 4 equals instructions and requirements; (4) organization in support of its mission. $88,226, rounded off). The cost of filing training personnel to respond to a These costs apply to activities which FERC–566 per respondent is $365 collection of information; (5) searching benefit the whole organization rather (rounded off) 2. data sources; (6) completing and than any one particular function or The reporting burden includes the reviewing the collection of information; activity. total time, effort, or financial resources and (7) transmitting or otherwise Comments are invited on: (1) The expended to generate, maintain, retain, disclosing the information. accuracy of the agency’s burden disclose, or provide the information The cost estimate for respondents is estimate of the proposed information including: (1) Reviewing instructions; based upon salaries for professional and collection, including the validity of the (2) developing, acquiring, installing, and clerical support, as well as direct and methodology and assumptions used to using technology and systems for the indirect overhead costs. Direct costs calculate the reporting burden; (2) ways purposes of collecting, validating, include all costs directly attributable to to enhance the quality, utility and verifying, processing, maintaining, providing this information, such as clarity of the information to be disclosing and providing information; administrative costs and the cost for collected; and (3) the proposal to

1 Annual Report of Interlocking Positions, FERC 2 Filing Via the Internet, RM07–16–000, 72 FR 3 Number of hours an employee works. Form 561, OMB No. 1902–0099, collects the 65659 (2007), FERC Stats. & Regs. ¶ 31,259. 4 Average annual salary per employee. interlocking directorate information.

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provide the option to collect FERC–566 comments should be submitted to the utility officers and directors of similar electronically during 2008, as indicated Secretary of the Commission, Federal types of positions they hold with under RM07–16–000 000 and any Energy Regulatory Commission, 888 financial institutions, insurance reduction in burden that option might First Street, NE., Washington, DC 20426 companies, utility equipment and fuel allow filers. and refer to Docket No. IC08–561–000. providers, and with any of an electric Documents filed electronically via the utility’s twenty largest purchasers of Kimberly D. Bose, Internet must be prepared in an electric energy.1 The FPA mandates the Secretary. acceptable filing format and in information that must be filed, the [FR Doc. E8–2407 Filed 2–8–08; 8:45 am] compliance with the Federal Energy required filers, the requirement to make BILLING CODE 6717–01–P Regulatory Commission’s submission the information available to the public, guidelines. Complete filing instructions and the filing deadline. The and acceptable filing formats are Commission is not empowered to DEPARTMENT OF ENERGY available at (http://www.ferc.gov/help/ amend or waive these statutory Federal Energy Regulatory submission-guide/electronic-media.asp). requirements. Requirements the Commission To file the document electronically, Commission has the authority to amend, access the Commission’s Web site and such as filing format and method, can be [Docket No. IC08–561–000; FERC Form 561] click on Documents & Filing, E-Filing found in 18 CFR part 46 and section (http://www.ferc.gov/docs-filing/ 131.31. Commission Information Collection efiling.asp), and then follow the Without this information collection, Activities, Proposed Collection; instructions for each screen. First time the Commission and the public would Comment Request; Extension users will have to establish a user name not be able to inquire into and February 1, 2008. and password. The Commission will determine whether public or private AGENCY: Federal Energy Regulatory send an automatic acknowledgement to interests will be adversely affected by Commission, DOE. the sender’s e-mail address upon receipt the holding of such positions. of comments. ACTION: Notice. Under the current OMB authorization, All comments may be viewed, printed the Commission requires the FERC SUMMARY: In compliance with the or downloaded remotely via the Internet Form 561 filings in hardcopy with an requirements of section 3506(c)(2)(a) of through FERC’s homepage using the optional diskette containing a the Paperwork Reduction Act of 1995 eLibrary link. For user assistance, spreadsheet of the interlocking (Pub. L. No. 104–13), the Federal Energy contact [email protected] or directorate information. However, the Regulatory Commission (Commission) is toll-free at (866) 208–3676 or for TTY, Commission has indicated under soliciting public comment on the contact (202) 502–8659. RM07–16–000,2 to allow for the specific aspects of the information FOR FURTHER INFORMATION CONTACT: voluntary electronic submittal of many collection described below. Michael Miller may be reached by required filings, including the FERC DATES: Comments on the collection of telephone at (202) 502–8415, by fax at Form 561, by early 2008. Through information are due April 7, 2008. (202) 273–0873, and by e-mail at eFiling 7.0, the form will be filed in ADDRESSES: An example of this [email protected]. Adobe Acrobat with an optional information collection can be obtained SUPPLEMENTARY INFORMATION: The electronic spreadsheet attachment. from the Commission’s Documents & information collected under the Implementation of eFiling 7.0 will Filing Web site (http://www.ferc.gov/ requirements of FERC Form 561 eliminate the current burden of mailing docs-filings/elibrary.asp) or by ‘‘Annual Report of Interlocking and hand-delivering the filings in contacting the Federal Energy Positions’’ (OMB No. 1902–0099) is hardcopy. Regulatory Commission, Attn: Michael used by the Commission to implement Action: The Commission is requesting Miller, Office of the Executive Director, the statutory provisions of section 305 a three-year extension of the current ED–34, 888 First Street, NE., of the Federal Power Act (FPA), as expiration date, and proposes to make Washington, DC 20426. Comments may amended by Title II, section 211 of the the filing of the FERC Form 561 more be filed either in paper format or Public Utility Regulatory Policies Act of efficient during 2008 under RM07–16– electronically. Those parties filing 1978 (PURPA) (16 U.S.C. 825d). FPA 000. electronically do not need to make a section 305—Officials Dealing in Burden Statement: Public reporting paper filing. For paper filing, the Securities—Interlocking Directorates burden for this collection is estimated original and 14 copies of such requires the annual reporting by public as:

Number of Average responses burden Total annual Number of respondents annually per re- hours per burden spondent response hours

(1) (2) (3) (1)×(2)×(3)

1996 ...... 1 .25 499

The estimated total cost to divided by 2080 hours 3 per year, times $126,384 4 equals $30,320]. The cost per respondents is $21,516. [499 hours respondent is $15 (rounded off).

1 Annual Report of a Utility’s Twenty Largest 2 Filing Via the Internet, RM07–16–000, 72 FR 4 Average annual salary per employee. Purchasers, FERC–566, OMB No. 1902–0114, 65659 (2007), FERC Stats. & Regs. ¶ 31,259. collects information from the twenty largest 3 Number of hours an employee works each year. purchasers.

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The reporting burden includes the with the Commission and is available average annual generation of 26 total time, effort, or financial resources for public inspection: gigawatt-hours. expended to generate, maintain, retain, a. Type of Application: Preliminary l. This filing is available for review at disclose, or provide the information Permit. the Commission in the Public Reference including: (1) Reviewing instructions; b. Project No.: 12944–000. Room or may be viewed on the (2) developing, acquiring, installing, c. Date filed: August 8, 2007. Commission’s Web site at http:// using technology and systems for the d. Applicant: Morgantown Hydro, www.ferc.gov using the ‘‘eLibrary’’ link. purposes of collecting, validating, LLC. Enter the docket number excluding the verifying, processing, maintaining, e. Name of Project: Morgantown Lock last three digits in the docket number disclosing and providing information; and Dam Hydroelectric Project. field to access the document. For (3) adjusting the existing ways to f. Location: Monongahela River in assistance, call toll-free 1–866–208– comply with any previously applicable Monongalia County, West Virginia. It 3676 or e-mail filing instructions and requirements; (4) would use the U.S. Army Corps of [email protected]. training personnel to respond to a Engineers’ Morgantown Lock and Dam. For TTY, call (202) 502–8659. A copy is collection of information; (5) searching g. Filed Pursuant to: Federal Power also available for inspection and data sources; (6) completing and Act, 16 U.S.C. 791(a)–825(r). reproduction at the address in item h reviewing the collection of information; h. Applicant Contact: Mr. Brent L. above. m. Competing Preliminary Permit— and (7) transmitting, or otherwise Smith, COO, Symbiotics, LLC, P.O. Box Anyone desiring to file a competing disclosing the information. 535, Rigby, ID 83442, (208) 745–0834. application for preliminary permit for a The cost estimate for respondents is i. FERC Contact: Robert Bell, (202) proposed project must submit the based upon salaries for professional and 502–4126. competing application itself, or a notice clerical support, as well as direct and j. Deadline for filing comments, of intent to file such an application, to indirect overhead costs. Direct costs protests, and motions to intervene: 60 include all costs directly attributable to the Commission on or before the days from the issuance date of this specified comment date for the providing this information, such as notice. administrative costs and the cost for particular application (see 18 CFR 4.36). All documents (original and eight Submission of a timely notice of intent information technology. Indirect or copies) should be filed with: Kimberly overhead costs are costs incurred by an allows an interested person to file the D. Bose, Secretary, Federal Energy competing preliminary permit organization in support of its mission. Regulatory Commission, 888 First These costs apply to activities which application no later than 30 days after Street, NE., Washington, DC 20426. the specified comment date for the benefit the whole organization rather Comments, protests, and interventions particular application. A competing than any one particular function or may be filed electronically via the preliminary permit application must activity. Internet in lieu of paper; see 18 CFR conform with 18 CFR 4.30 and 4.36. Comments are invited on: (1) The 385.2001(a)(1)(iii) and the instructions n. Competing Development accuracy of the agency’s burden on the Commission’s Web site under the Application—Any qualified estimate of the proposed information ‘‘e-Filing’’ link. The Commission development applicant desiring to file a collection, including the validity of the strongly encourages electronic filings. competing development application methodology and assumptions used to Please include the project number (P– must submit to the Commission, on or calculate the reporting burden; (2) ways 12944–000) on any comments or before a specified comment date for the to enhance the quality, utility and motions filed. particular application, either a clarity of the information to be The Commission’s Rules of Practice competing development application or a collected; and (3) the proposal to and Procedure require all intervenors notice of intent to file such an provide the option to collect FERC Form filing documents with the Commission application. Submission of a timely 561 electronically by late 2007, as to serve a copy of that document on notice of intent to file a development proposed under RM07–16–000 and any each person in the official service list application allows an interested person reduction in burden that option might for the project. Further, if an intervenor to file the competing application no allow filers. files comments or documents with the later than 120 days after the specified Kimberly D. Bose, Commission relating to the merits of an comment date for the particular issue that may affect the responsibilities Secretary. application. A competing license of a particular resource agency, they [FR Doc. E8–2410 Filed 2–8–08; 8:45 am] application must conform with 18 CFR must also serve a copy of the document 4.30 and 4.36. BILLING CODE 6717–01–P on that resource agency. o. Notice of Intent—A notice of intent k. Description of Project: The must specify the exact name, business DEPARTMENT OF ENERGY proposed project using the U.S. Army address, and telephone number of the Corps of Engineers’ Morgantown Lock prospective applicant, and must include Federal Energy Regulatory and Dam and operated in a run-of-river an unequivocal statement of intent to Commission mode would consist of: (1) A new submit, if such an application may be powerhouse and switchyard; (2) two filed, either a preliminary permit turbine/generator units with a combined [Project No. 12944–000] application or a development installed capacity of 9 megawatts; (3) a application (specify which type of Morgantown Hydro, LLC; Notice of new 13-mile-long above-ground 25- application). A notice of intent must be Application Accepted for Filing and kilovolt transmission line extending served on the applicant(s) named in this Soliciting Motions To Intervene, from the switchyard to an public notice. Protests, and Comments interconnection point with p. Proposed Scope of Studies Under Monongahela Power Company’s Permit—A preliminary permit, if issued, February 4, 2008. distribution system; and (4) appurtenant does not authorize construction. The Take notice that the following facilities. The proposed Morgantown term of the proposed preliminary permit hydroelectric application has been filed Lock and Dam Project would have an would be 36 months. The work

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proposed under the preliminary permit DEPARTMENT OF ENERGY Irrigation District and the San Joaquin would include economic analysis, Irrigation District’s Goodwin Dam and preparation of preliminary engineering Federal Energy Regulatory operated in a run-of-river mode would plans, and a study of environmental Commission consist of: (1) A new 300-foot-long, 120- impacts. Based on the results of these [Project No. 12946–000] inch-diameter steel penstock; (2) a new studies, the Applicant would decide powerhouse and switchyard; (3) two whether to proceed with the preparation Goodwin Hydro, LLC; Notice of turbine/generator units with a combined of a development application to Application Accepted for Filing and installed capacity of 5 megawatts; (4) a construct and operate the project. Soliciting Motions To Intervene, new 3-mile-long above ground 15- q. Comments, Protests, or Motions to Protests, and Comments kilovolt transmission line extending Intervene—Anyone may submit from the switchyard to an comments, a protest, or a motion to February 4, 2008. interconnection point with the intervene in accordance with the Take notice that the following Tuolumne County Public Power requirements of Rules of Practice and hydroelectric application has been filed Agency’s distribution system; and (5) Procedure, 18 CFR 385.210, .211, .214. with the Commission and is available appurtenant facilities. The proposed In determining the appropriate action to for public inspection: Goodwin Dam Project would have an take, the Commission will consider all a. Type of Application: Preliminary average annual generation of 22 protests or other comments filed, but Permit. gigawatt-hours. only those who file a motion to b. Project No.: 12946–000. l. This filing is available for review at c. Date filed: August 8, 2007. intervene in accordance with the the Commission in the Public Reference d. Applicant: Goodwin Hydro, LLC. Room or may be viewed on the Commission’s Rules may become a e. Name of Project: Goodwin Dam Commission’s Web site at http:// party to the proceeding. Any comments, Hydroelectric Project. protests, or motions to intervene must f. Location: Stanislaus River in www.ferc.gov using the ‘‘eLibrary’’ link. be received on or before the specified Tuolumne and Calaveras counties, Enter the docket number excluding the comment date for the particular California. It would use the existing last three digits in the docket number application. Goodwin Dam owned by Oakdale field to access the document. For r. Filing and Service of Responsive Irrigation District and San Joaquin assistance, call toll-free 1–866–208– Documents—Any filings must bear in Irrigation District. 3676 or e-mail all capital letters the title g. Filed Pursuant to: Federal Power [email protected]. ‘‘COMMENTS’’, ‘‘NOTICE OF INTENT Act, 16 U.S.C. 791(a)–825(r). For TTY, call (202) 502–8659. A copy is TO FILE COMPETING APPLICATION’’, h. Applicant Contact: Mr. Brent L. also available for inspection and ‘‘COMPETING APPLICATION’’, Smith, COO, Symbiotics, LLC, P.O. Box reproduction at the address in item h ‘‘PROTEST’’, and ‘‘MOTION TO 535, Rigby, ID 83442, (208) 745–0834. above. INTERVENE’’, as applicable, and the i. FERC Contact: Robert Bell, (202) m. Competing Preliminary Permit— Project Number of the particular 502–4126. Anyone desiring to file a competing application to which the filing refers. j. Deadline for filing comments, application for preliminary permit for a Any of the above-named documents protests, and motions to intervene: 60 proposed project must submit the must be filed by providing the original days from the issuance date of this competing application itself, or a notice and the number of copies provided by notice. of intent to file such an application, to the Commission’s regulations to: The All documents (original and eight the Commission on or before the Secretary, Federal Energy Regulatory copies) should be filed with: Kimberly specified comment date for the Commission, 888 First Street, NE., D. Bose, Secretary, Federal Energy particular application (see 18 CFR 4.36). Washington, DC 20426. An additional Regulatory Commission, 888 First Submission of a timely notice of intent copy must be sent to Director, Division Street, NE., Washington, DC 20426. allows an interested person to file the of Hydropower Administration and Comments, protests, and interventions competing preliminary permit Compliance, Federal Energy Regulatory may be filed electronically via the application no later than 30 days after Commission, at the above-mentioned Internet in lieu of paper; see 18 CFR the specified comment date for the address. A copy of any notice of intent, 385.2001(a)(1)(iii) and the instructions particular application. A competing competing application or motion to on the Commission’s Web site under the preliminary permit application must intervene must also be served upon each ‘‘e-Filing’’ link. The Commission conform with 18 CFR 4.30 and 4.36. representative of the Applicant strongly encourages electronic filings. n. Competing Development specified in the particular application. Please include the project number Application—Any qualified s. Agency Comments—Federal, state, (P–12946–000) on any comments or development applicant desiring to file a and local agencies are invited to file motions filed. competing development application comments on the described application. The Commission’s Rules of Practice must submit to the Commission, on or A copy of the application may be and Procedure require all intervenors before a specified comment date for the obtained by agencies directly from the filing documents with the Commission particular application, either a Applicant. If an agency does not file to serve a copy of that document on competing development application or a comments within the time specified for each person in the official service list notice of intent to file such an filing comments, it will be presumed to for the project. Further, if an intervenor application. Submission of a timely have no comments. One copy of an files comments or documents with the notice of intent to file a development agency’s comments must also be sent to Commission relating to the merits of an application allows an interested person the Applicant’s representatives. issue that may affect the responsibilities to file the competing application no of a particular resource agency, they later than 120 days after the specified Kimberly D. Bose, must also serve a copy of the document comment date for the particular Secretary. on that resource agency. application. A competing license [FR Doc. E8–2415 Filed 2–8–08; 8:45 am] k. Description of Project: The application must conform with 18 CFR BILLING CODE 6717–01–P proposed project using the Oakdale 4.30 and 4.36.

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o. Notice of Intent—A notice of intent s. Agency Comments—Federal, state, project number (P–12949–000) on any must specify the exact name, business and local agencies are invited to file comments or motions filed. address, and telephone number of the comments on the described application. The Commission’s Rules of Practice prospective applicant, and must include A copy of the application may be and Procedure require all intervenors an unequivocal statement of intent to obtained by agencies directly from the filing documents with the Commission submit, if such an application may be Applicant. If an agency does not file to serve a copy of that document on filed, either a preliminary permit comments within the time specified for each person in the official service list application or a development filing comments, it will be presumed to for the project. Further, if an intervenor application (specify which type of have no comments. One copy of an files comments or documents with the application). A notice of intent must be agency’s comments must also be sent to Commission relating to the merits of an served on the applicant(s) named in this the Applicant’s representatives. issue that may affect the responsibilities public notice. of a particular resource agency, they p. Proposed Scope of Studies Under Kimberly D. Bose, must also serve a copy of the document Permit—A preliminary permit, if issued, Secretary. on that resource agency. does not authorize construction. The [FR Doc. E8–2416 Filed 2–8–08; 8:45 am] k. Description of Project: The term of the proposed preliminary permit BILLING CODE 6717–01–P proposed project using the U.S. Army would be 36 months. The work Corps of Engineers’ Lock and Dam #3 proposed under the preliminary permit and operated in a run-of-river mode would include economic analysis, DEPARTMENT OF ENERGY would consist of: (1) A new powerhouse preparation of preliminary engineering and switchyard; (2) four turbine/ plans, and a study of environmental Federal Energy Regulatory generator units with a combined impacts. Based on the results of these Commission installed capacity of 100 megawatts; (3) studies, the Applicant would decide [Project No. 12949–000] a new 2.6-mile-long above ground 69- whether to proceed with the preparation kilovolt transmission line extending of a development application to Arkansas River Hydro 3, LLC; Notice of from the switchyard to an construct and operate the project. Application Accepted for Filing and interconnection point with the local q. Comments, Protests, or Motions to Soliciting Motions To Intervene, utility’s distribution system; and (4) Intervene—Anyone may submit Protests, and Comments appurtenant facilities. The proposed comments, a protest, or a motion to Lock and Dam #3 Project would have an intervene in accordance with the February 4, 2008. average annual generation of 300 requirements of Rules of Practice and Take notice that the following gigawatt-hours. Procedure, 18 CFR 385.210, .211, .214. hydroelectric application has been filed l. This filing is available for review at In determining the appropriate action to with the Commission and is available the Commission in the Public Reference take, the Commission will consider all for public inspection: Room or may be viewed on the protests or other comments filed, but a. Type of Application: Preliminary Commission’s Web site at http:// only those who file a motion to Permit. www.ferc.gov using the ‘‘eLibrary’’ link. intervene in accordance with the b. Project No.: 12949–000. Enter the docket number excluding the Commission’s Rules may become a c. Date filed: August 14, 2007. last three digits in the docket number party to the proceeding. Any comments, d. Applicant: Arkansas River Hydro 3, field to access the document. For protests, or motions to intervene must LLC. assistance, call toll-free 1–866–208– be received on or before the specified e. Name of Project: Lock and Dam #3 3676 or e-mail comment date for the particular Hydroelectric Project. [email protected]. application. f. Location: Arkansas River in Lincoln For TTY, call (202) 502–8659. A copy is r. Filing and Service of Responsive County, Arkansas. It would use the U.S. also available for inspection and Documents—Any filings must bear in Army Corps of Engineers’ Lock and Dam reproduction at the address in item h all capital letters the title #3. above. ‘‘COMMENTS’’, ‘‘NOTICE OF INTENT g. Filed Pursuant to: Federal Power m. Competing Preliminary Permit— TO FILE COMPETING APPLICATION’’, Act, 16 U.S.C. 791(a)–825(r). Anyone desiring to file a competing ‘‘COMPETING APPLICATION’’, h. Applicant Contact: Mr. Brent L. application for preliminary permit for a ‘‘PROTEST’’, and ‘‘MOTION TO Smith, COO, Symbiotics, LLC, P.O. Box proposed project must submit the INTERVENE’’, as applicable, and the 535, Rigby, ID 83442, (208) 745–0834. competing application itself, or a notice Project Number of the particular i. FERC Contact: Robert Bell, (202) of intent to file such an application, to application to which the filing refers. 502–4126. the Commission on or before the Any of the above-named documents j. Deadline for filing comments, specified comment date for the must be filed by providing the original protests, and motions to intervene: 60 particular application (see 18 CFR 4.36). and the number of copies provided by days from the issuance date of this Submission of a timely notice of intent the Commission’s regulations to: The notice. allows an interested person to file the Secretary, Federal Energy Regulatory All documents (original and eight competing preliminary permit Commission, 888 First Street, NE., copies) should be filed with: Secretary, application no later than 30 days after Washington, DC 20426. An additional Federal Energy Regulatory Commission, the specified comment date for the copy must be sent to Director, Division 888 First Street, NE., Washington, DC particular application. A competing of Hydropower Administration and 20426. Comments, protests, and preliminary permit application must Compliance, Federal Energy Regulatory interventions may be filed electronically conform with 18 CFR 4.30 and 4.36. Commission, at the above-mentioned via the Internet in lieu of paper; see 18 n. Competing Development address. A copy of any notice of intent, CFR 385.2001(a)(1)(iii) and the Application—Any qualified competing application or motion to instructions on the Commission’s Web development applicant desiring to file a intervene must also be served upon each site under the ‘‘e-Filing’’ link. The competing development application representative of the Applicant Commission strongly encourages must submit to the Commission, on or specified in the particular application. electronic filings. Please include the before a specified comment date for the

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particular application, either a Secretary, Federal Energy Regulatory All documents (original and eight competing development application or a Commission, 888 First Street, NE., copies) should be filed with: Kimberly notice of intent to file such an Washington, DC 20426. An additional D. Bose, Secretary, Federal Energy application. Submission of a timely copy must be sent to Director, Division Regulatory Commission, 888 First notice of intent to file a development of Hydropower Administration and Street, NE., Washington, DC 20426. application allows an interested person Compliance, Federal Energy Regulatory Comments, protests, and interventions to file the competing application no Commission, at the above-mentioned may be filed electronically via the later than 120 days after the specified address. A copy of any notice of intent, Internet in lieu of paper; see 18 CFR comment date for the particular competing application or motion to 385.2001(a)(1)(iii) and the instructions application. A competing license intervene must also be served upon each on the Commission’s Web site under the application must conform with 18 CFR representative of the Applicant ‘‘e-Filing’’ link. The Commission 4.30 and 4.36. specified in the particular application. strongly encourages electronic filings. o. Notice of Intent—A notice of intent s. Agency Comments—Federal, state, Please include the project number (P– must specify the exact name, business and local agencies are invited to file 12948–000) on any comments or address, and telephone number of the comments on the described application. motions filed. prospective applicant, and must include A copy of the application may be The Commission’s Rules of Practice an unequivocal statement of intent to obtained by agencies directly from the and Procedure require all intervenors submit, if such an application may be Applicant. If an agency does not file filing documents with the Commission filed, either a preliminary permit comments within the time specified for to serve a copy of that document on application or a development filing comments, it will be presumed to each person in the official service list application (specify which type of have no comments. One copy of an for the project. Further, if an intervenor application). A notice of intent must be agency’s comments must also be sent to files comments or documents with the served on the applicant(s) named in this the Applicant’s representatives. Commission relating to the merits of an public notice. issue that may affect the responsibilities p. Proposed Scope of Studies Under Kimberly D. Bose, of a particular resource agency, they Permit—A preliminary permit, if issued, Secretary. must also serve a copy of the document does not authorize construction. The [FR Doc. E8–2419 Filed 2–8–08; 8:45 am] on that resource agency. term of the proposed preliminary permit BILLING CODE 6717–01–P k. Description of Project: The would be 36 months. The work proposed project using the U.S. Army proposed under the preliminary permit Corps of Engineers’ Clementine Dam would include economic analysis, DEPARTMENT OF ENERGY and operated in a run-of-river mode preparation of preliminary engineering would consist of: (1) A new 250-foot- plans, and a study of environmental Federal Energy Regulatory long, 240-inch-diameter steel penstock; impacts. Based on the results of these Commission (2) a new powerhouse and switchyard; studies, the Applicant would decide [Project No. 12948–000] (3) one turbine/generator unit with an whether to proceed with the preparation installed capacity of 3 megawatt; (4) a of a development application to Clementine Dam Hydro, LLC; Notice of new 22-mile-long above ground 15- construct and operate the project. Application Accepted for Filing and kilovolt transmission line extending q. Comments, Protests, or Motions to Soliciting Motions To Intervene, from the switchyard to an Intervene—Anyone may submit Protests, and Comments interconnection point with the local comments, a protest, or a motion to utility’s distribution system; and (5) intervene in accordance with the February 4, 2008. appurtenant facilities. The proposed requirements of Rules of Practice and Take notice that the following Clementine Dam Project would have an Procedure, 18 CFR 385.210, .211, .214. hydroelectric application has been filed average annual generation of 16 In determining the appropriate action to with the Commission and is available gigawatt-hours. take, the Commission will consider all for public inspection: l. This filing is available for review at protests or other comments filed, but a. Type of Application: Preliminary the Commission in the Public Reference only those who file a motion to Permit. Room or may be viewed on the intervene in accordance with the b. Project No.: 12948–000. Commission’s Web site at http:// Commission’s Rules may become a c. Date filed: August 8, 2007. www.ferc.gov using the ‘‘eLibrary’’ link. party to the proceeding. Any comments, d. Applicant: Clementine Dam Hydro, Enter the docket number excluding the protests, or motions to intervene must LLC. last three digits in the docket number be received on or before the specified e. Name of Project: Clementine Dam field to access the document. For comment date for the particular Hydroelectric Project. assistance, call toll-free 1–866–208– application. f. Location: American River in Placer 3676 or e-mail r. Filing and Service of Responsive County, California. It would use the U.S. [email protected]. Documents—Any filings must bear in Army Corps of Engineers’ Clementine For TTY, call (202) 502–8659. A copy is all capital letters the title Dam. also available for inspection and ‘‘COMMENTS’’, ‘‘NOTICE OF INTENT g. Filed Pursuant to: Federal Power reproduction at the address in item h TO FILE COMPETING APPLICATION’’, Act, 16 U.S.C. 791(a)–825(r). above. ‘‘COMPETING APPLICATION’’, h. Applicant Contact: Mr. Brent L. m. Competing Preliminary Permit— ‘‘PROTEST’’, and ‘‘MOTION TO Smith, COO, Symbiotics, LLC, P.O. Box Anyone desiring to file a competing INTERVENE’’, as applicable, and the 535, Rigby, ID 83442, (208) 745–0834. application for preliminary permit for a Project Number of the particular i. FERC Contact: Robert Bell, (202) proposed project must submit the application to which the filing refers. 502–4126. competing application itself, or a notice Any of the above-named documents j. Deadline for filing comments, of intent to file such an application, to must be filed by providing the original protests, and motions to intervene: 60 the Commission on or before the and the number of copies provided by days from the issuance date of this specified comment date for the the Commission’s regulations to: The notice. particular application (see 18 CFR 4.36).

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Submission of a timely notice of intent r. Filing and Service of Responsive use the U.S. Bureau of Reclamation’s allows an interested person to file the Documents—Any filings must bear in Imperial Diversion Dam. competing preliminary permit all capital letters the title g. Filed Pursuant to: Federal Power application no later than 30 days after ‘‘COMMENTS’’, ‘‘NOTICE OF INTENT Act, 16 U.S.C. 791(a)—825(r). the specified comment date for the TO FILE COMPETING APPLICATION’’, h. Applicant Contact: Mr. Brent L. particular application. A competing ‘‘COMPETING APPLICATION’’, Smith, COO, Symbiotics, LLC, P.O. Box preliminary permit application must ‘‘PROTEST’’, and ‘‘MOTION TO 535, Rigby, ID 83442, (208) 745–0834. conform with 18 CFR 4.30 and 4.36. INTERVENE’’, as applicable, and the i. FERC Contact: Robert Bell, (202) n. Competing Development Project Number of the particular 502–4126. Application—Any qualified application to which the filing refers. j. Deadline for filing comments, development applicant desiring to file a Any of the above-named documents protests, and motions to intervene: 60 competing development application must be filed by providing the original days from the issuance date of this must submit to the Commission, on or and the number of copies provided by notice. All documents (original and eight before a specified comment date for the the Commission’s regulations to: The copies) should be filed with: Kimberly particular application, either a Secretary, Federal Energy Regulatory D. Bose, Secretary, Federal Energy competing development application or a Commission, 888 First Street, NE., Regulatory Commission, 888 First notice of intent to file such an Washington, DC 20426. An additional Street, NE., Washington, DC 20426. application. Submission of a timely copy must be sent to Director, Division Comments, protests, and interventions notice of intent to file a development of Hydropower Administration and may be filed electronically via the application allows an interested person Compliance, Federal Energy Regulatory Internet in lieu of paper; see 18 CFR to file the competing application no Commission, at the above-mentioned later than 120 days after the specified 385.2001(a)(1)(iii) and the instructions address. A copy of any notice of intent, on the Commission’s Web site under the comment date for the particular competing application or motion to application. A competing license ‘‘e-Filing’’ link. The Commission intervene must also be served upon each strongly encourages electronic filings. application must conform with 18 CFR representative of the Applicant 4.30 and 4.36. Please include the project number (P– specified in the particular application. 12947–000) on any comments or o. Notice of Intent—A notice of intent s. Agency Comments—Federal, state, must specify the exact name, business motions filed. and local agencies are invited to file The Commission’s Rules of Practice address, and telephone number of the comments on the described application. prospective applicant, and must include and Procedure require all intervenors A copy of the application may be filing documents with the Commission an unequivocal statement of intent to obtained by agencies directly from the submit, if such an application may be to serve a copy of that document on Applicant. If an agency does not file each person in the official service list filed, either a preliminary permit comments within the time specified for application or a development for the project. Further, if an intervenor filing comments, it will be presumed to files comments or documents with the application (specify which type of have no comments. One copy of an application). A notice of intent must be Commission relating to the merits of an agency’s comments must also be sent to served on the applicant(s) named in this issue that may affect the responsibilities the Applicant’s representatives. public notice. of a particular resource agency, they p. Proposed Scope of Studies Under Kimberly D. Bose, must also serve a copy of the document Permit—A preliminary permit, if issued, Secretary. on that resource agency. does not authorize construction. The [FR Doc. E8–2418 Filed 2–8–08; 8:45 am] k. Description of Project: The proposed project using the U.S. Bureau term of the proposed preliminary permit BILLING CODE 6717–01–P would be 36 months. The work of Reclamation’s Imperial Diversion proposed under the preliminary permit Dam and operated in a run-of-river would include economic analysis, DEPARTMENT OF ENERGY mode would consist of: (1) A new preparation of preliminary engineering powerhouse and switchyard; (2) two plans, and a study of environmental Federal Energy Regulatory turbine/generator units with a combined impacts. Based on the results of these Commission installed capacity of 2.1 megawatts; (3) studies, the Applicant would decide a new 1-mile-long above ground 12.5- [Project No. 12947–000] whether to proceed with the preparation kilovolt transmission line extending of a development application to Imperial Hydro, LLC; Notice of from the switchyard to an construct and operate the project. Application Accepted for Filing and interconnection point with the local q. Comments, Protests, or Motions to Soliciting Motions to Intervene, utility’s distribution system; and (4) Intervene—Anyone may submit Protests, and Comments appurtenant facilities. The proposed comments, a protest, or a motion to Imperial Diversion Dam Project would intervene in accordance with the February 4, 2008. have an average annual generation of 10 requirements of Rules of Practice and Take notice that the following gigawatt-hours. Procedure, 18 CFR 385.210, .211, .214. hydroelectric application has been filed l. This filing is available for review at In determining the appropriate action to with the Commission and is available the Commission in the Public Reference take, the Commission will consider all for public inspection: Room or may be viewed on the protests or other comments filed, but a. Type of Application: Preliminary Commission’s Web site at http:// only those who file a motion to Permit. www.ferc.gov using the ‘‘eLibrary’’ link. intervene in accordance with the b. Project No.: 12947–000. Enter the docket number excluding the Commission’s Rules may become a c. Date Filed: August 8, 2007. last three digits in the docket number party to the proceeding. Any comments, d. Applicant: Imperial Hydro, LLC. field to access the document. For protests, or motions to intervene must e. Name of Project: Imperial Diversion assistance, call toll-free 1–866–208– be received on or before the specified Dam Hydroelectric Project. 3676 or e-mail comment date for the particular f. Location: Colorado River in [email protected]. application. Imperial County, California. It would For TTY, call (202) 502–8659. A copy is

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also available for inspection and Procedure, 18 CFR 385.210, .211, .214. DEPARTMENT OF ENERGY reproduction at the address in item h In determining the appropriate action to above. take, the Commission will consider all Federal Energy Regulatory m. Competing Preliminary Permit— protests or other comments filed, but Commission Anyone desiring to file a competing only those who file a motion to [Project No. 13050–000] application for preliminary permit for a intervene in accordance with the proposed project must submit the Commission’s Rules may become a NT Hydro; Notice of Application competing application itself, or a notice party to the proceeding. Any comments, of intent to file such an application, to Accepted for Filing and Soliciting protests, or motions to intervene must the Commission on or before the Comments, Protests, and Motions To be received on or before the specified specified comment date for the Intervene particular application (see 18 CFR 4.36). comment date for the particular application. February 4, 2008. Submission of a timely notice of intent Take notice that the following allows an interested person to file the r. Filing and Service of Responsive hydroelectric application has been filed competing preliminary permit Documents—Any filings must bear in with the Commission and is available application no later than 30 days after all capital letters the title for public inspection: the specified comment date for the ‘‘COMMENTS’’, ‘‘NOTICE OF INTENT a. Type of Application: Preliminary particular application. A competing TO FILE COMPETING APPLICATION’’, Permit. preliminary permit application must ‘‘COMPETING APPLICATION’’, b. Project No.: 13050–000. conform with 18 CFR 4.30 and 4.36. ‘‘PROTEST’’, and ‘‘MOTION TO c. Date filed: October 15, 2007. n. Competing Development INTERVENE’’, as applicable, and the d. Applicant: NT Hydro. Application—Any qualified Project Number of the particular development applicant desiring to file a e. Name and Location of Project: The application to which the filing refers. competing development application proposed Summer Lake Pumped Storage Any of the above-named documents must submit to the Commission, on or Hydroelectric Project would be located before a specified comment date for the must be filed by providing the original in Lake County, Oregon, utilizing the particular application, either a and the number of copies provided by existing Summer Lake, and would be competing development application or a the Commission’s regulations to: The located on U.S. Forest Service (FS) and notice of intent to file such an Secretary, Federal Energy Regulatory U.S. Bureau of Land Management (BLM) application. Submission of a timely Commission, 888 First Street, NE., land. notice of intent to file a development Washington, DC 20426. An additional f. Filed Pursuant to: Federal Power application allows an interested person copy must be sent to Director, Division Act, 16 U.S.C. 791(a)–825(r). to file the competing application no of Hydropower Administration and g. Applicant contact: Mr. Ted later than 120 days after the specified Compliance, Federal Energy Regulatory Sorenson, Sorenson Engineering, 5203 comment date for the particular Commission, at the above-mentioned South 11th East Idaho Falls, ID 83404, application. A competing license address. A copy of any notice of intent, (208) 522–8069. application must conform with 18 CFR competing application or motion to h. FERC Contact: Tom Papsidero, (202) 502–6002. 4.30 and 4.36. intervene must also be served upon each i. Deadline for filing comments, o. Notice of Intent—A notice of intent representative of the Applicant protests, and motions to intervene: 60 must specify the exact name, business specified in the particular application. address, and telephone number of the days from the issuance date of this prospective applicant, and must include s. Agency Comments—Federal, state, notice. an unequivocal statement of intent to and local agencies are invited to file All documents (original and eight submit, if such an application may be comments on the described application. copies) should be filed with: Kimberly filed, either a preliminary permit A copy of the application may be D. Bose, Secretary, Federal Energy application or a development obtained by agencies directly from the Regulatory Commission, 888 First application (specify which type of Applicant. If an agency does not file Street, NE., Washington, DC 20426. application). A notice of intent must be comments within the time specified for Comments, protests and interventions served on the applicant(s) named in this filing comments, it will be presumed to may be filed electronically via the public notice. have no comments. One copy of an Internet in lieu of paper; see 18 CFR p. Proposed Scope of Studies Under agency’s comments must also be sent to 385.2001(a)(1)(iii) and the instructions Permit—A preliminary permit, if issued, the Applicant’s representatives. on the Commission’s Web site under the does not authorize construction. The ‘‘e-Filing’’ link. The Commission term of the proposed preliminary permit Kimberly D. Bose, strongly encourages electronic filings. would be 36 months. The work Secretary. Please include the project number proposed under the preliminary permit [FR Doc. E8–2417 Filed 2–8–08; 8:45 am] (P–13050–000) on any comments or would include economic analysis, BILLING CODE 6717–01–P motions filed. preparation of preliminary engineering The Commission’s Rules of Practice plans, and a study of environmental and Procedure require all intervenors impacts. Based on the results of these filing documents with the Commission studies, the Applicant would decide to serve a copy of that document on whether to proceed with the preparation each person in the official service list of a development application to for the project. Further, if an intervenor construct and operate the project. files comments or documents with the q. Comments, Protests, or Motions to Commission relating to the merits of an Intervene—Anyone may submit issue that may affect the responsibilities comments, a protest, or a motion to of a particular resource agency, they intervene in accordance with the must also serve a copy of the document requirements of Rules of Practice and on that resource agency.

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j. Description of Existing Facilities allows an interested person to file the r. Filing and Service of Responsive and Proposed Project: The proposed competing preliminary permit Documents—Any filings must bear in Summer Lake Pumped Storage Project application no later than 30 days after all capital letters the title would consist of an excavated upper the specified comment date for the ‘‘COMMENTS’’, ‘‘NOTICE OF INTENT reservoir and Summer Lake. The upper particular application. A competing TO FILE COMPETING APPLICATION’’, reservoir is located on FS lands and the preliminary permit application must ‘‘COMPETING APPLICATION’’, lower reservoir is located on a conform with 18 CFR 4.30 and 4.36. ‘‘PROTEST’’, or ‘‘MOTION TO combination of private, BLM and state n. Competing Development INTERVENE’’, as applicable, and the lands. The upper reservoir proposed to Application—Any qualified Project Number of the particular be excavated on White Ridge is located development applicant desiring to file a application to which the filing refers. at an elevation of approximately 6,890 competing development application Any of the above-named documents ft above sea level (ASL). The excavated must submit to the Commission, on or must be filed by providing the original reservoir would have a surface area of before a specified comment date for the and the number of copies provided by approximately 80 acres and a storage particular application, either a the Commission’s regulations to: The capacity of approximately 2,000 acre- competing development application or a Secretary, Federal Energy Regulatory feet. Summer Lake, which receives notice of intent to file such an Commission, 888 First Street, NE., water from various springs and application. Submission of a timely Washington, DC 20426. An additional intermittent runoff streams, is located at notice of intent to file a development copy must be sent to Director, Division elevation 4,145 ft ASL. Summer Lake application allows an interested person of Hydropower Administration and has an approximate storage capacity of to file the competing application no Compliance, Federal Energy Regulatory 320,000 acre-ft. The upper excavated later than 120 days after the specified Commission, at the above-mentioned reservoir and Summer Lake would be comment date for the particular address. A copy of any notice of intent, connected by an 11,000-foot-long application. A competing license competing application or motion to pipeline consisting of two 8-foot- application must conform with 18 CFR intervene must also be served upon each diameter steel pipes with a hydraulic 4.30 and 4.36. representative of the Applicant capacity of approximately 700 cfs each. o. Notice of Intent—A notice of intent specified in the particular application. A powerhouse/pumphouse would be must specify the exact name, business s. Agency Comments—Federal, state, located near the shore of Summer Lake, address, and telephone number of the and local agencies are invited to file containing two 128 MW generating prospective applicant, and must include comments on the described application. units. A new 12-mile-long 128-kV an unequivocal statement of intent to A copy of the application may be transmission line would be constructed submit, if such an application may be obtained by agencies directly from the to interconnect the proposed project filed, either a preliminary permit Applicant. If an agency does not file with an existing Bonneville Power application or a development comments within the time specified for Administration 500-kV, AC application (specify which type of filing comments, it will be presumed to transmission line located north of application). A notice of intent must be have no comments. One copy of an Summer Lake. The project would have served on the applicant(s) named in this agency’s comments must also be sent to an average annual generation of 934.4 public notice. the Applicant’s representatives. GWH. k. Location of Applications: A copy of p. Proposed Scope of Studies under Kimberly D. Bose, the application is available for Permit—A preliminary permit, if issued, Secretary. does not authorize construction. The inspection and reproduction at the [FR Doc. E8–2420 Filed 2–8–08; 8:45 am] term of the proposed preliminary permit Commission in the Public Reference BILLING CODE 6717–01–P Room or may be viewed on the would be 36 months. The work Commission’s Web site at http:// proposed under the preliminary permit www.ferc.gov using the ‘‘eLibrary’’ link. would include economic analysis, DEPARTMENT OF ENERGY Enter the docket number excluding the preparation of preliminary engineering last three digits in the docket number plans, and a study of environmental Federal Energy Regulatory field to access the document. For impacts. Based on the results of these Commission studies, the Applicant would decide assistance, call toll-free 1–866–208– [Project No. 13080–000] 3676 or e-mail whether to proceed with the preparation of a development application to [email protected]. For TTY, Putnam Green Power, LLC Notice of construct and operate the project. call (202) 502–8659. A copy is also Application Accepted for Filing and available for inspection and q. Comments, Protests, or Motions to Soliciting Comments, Protests, and reproduction at the address in item g Intervene—Anyone may submit Motions To Intervene above. comments, a protest, or a motion to l. Individuals desiring to be included intervene in accordance with the February 4, 2008. on the Commission’s mailing list should requirements of Rules of Practice and Take notice that the following so indicate by writing to the Secretary Procedure, 18 CFR 385.210, .211, .214. hydroelectric application has been filed of the Commission. In determining the appropriate action to with the Commission and is available m. Competing Preliminary Permit— take, the Commission will consider all for public inspection: Anyone desiring to file a competing protests or other comments filed, but a. Type of Application: Preliminary application for preliminary permit for a only those who file a motion to Permit. proposed project must submit the intervene in accordance with the b. Project No.: 13080–000. competing application itself, or a notice Commission’s Rules may become a c. Date filed: November 27, 2007. of intent to file such an application, to party to the proceeding. Any comments, d. Applicant: Putnam Green Power, the Commission on or before the protests, or motions to intervene must LLC. specified comment date for the be received on or before the specified e. Name and Location of Project: The particular application (see 18 CFR 4.36). comment date for the particular proposed Cargill Falls Hydroelectric Submission of a timely notice of intent application. Project would be located on the

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Quinebaug River, in the Town of existing CL&P Putnam substation Interconnection would be via an Putnam, Windham County, Connecticut. located directly across the river from the existing overhead line to the CL&P f. Filed Pursuant to: Federal Power powerhouse. Putnam substation located directly Act, 16 U.S.C. 791(a)–825(r). The existing dam consists of a across the river. The turbine would have g. Applicant contact: Leanne Parker, concrete gravity overflow spillway a nominal rating of 2 MW at a net head CEO, Putnam Green Power, LLC, 58 section approximately 60-foot-long and of 28-feet. Average annual energy Pomfret Street, Putnam, CT 06260, (860) 5-foot-high and a gravity concrete gated production is estimated to be 928–1500. spillway section approximately 85-foot- approximately 9.2 GWH. h. FERC Contact: Tom Papsidero, long and 6-foot-high, separated by a k. Location of Applications: A copy of (202) 502–6002. natural rock outcrop about 70-foot-long. the application is available for i. Deadline for filing comments, The project impoundment has a normal inspection and reproduction at the protests, and motions to intervene: 60 surface elevation of 253.4 feet above Commission in the Public Reference days from the issuance date of this mean sea level (msl) and is Room or may be viewed on the notice. approximately 2,000-foot-long, the Commission’s Web site at http:// All documents (original and eight width of the impoundment varies www.ferc.gov using the ‘‘eLibrary’’ link. copies) should be filed with: Kimberly between 300 and 500 feet. The Enter the docket number excluding the D. Bose, Secretary, Federal Energy impoundment area is approximately 13 last three digits in the docket number Regulatory Commission, 888 First acres, with an approximate storage field to access the document. For Street, NE., Washington, DC 20426. capacity of 65 acre feet (at normal pool assistance, call toll-free 1–866–208– Comments, protests and interventions elevation of 253.4 feet msl). 3676 or e-mail may be filed electronically via the The existing intake structure is [email protected]. For TTY, Internet in lieu of paper; see 18 CFR located at the south end of the dam, and call (202) 502–8659. A copy is also 385.2001(a)(1)(iii) and the instructions consists of four concrete intake gates 3- available for inspection and on the Commission’s Web site under the foot-wide and 5-foot-high which are reproduction at the address in item g ‘‘e-Filing’’ link. The Commission currently sealed by steel plates, a above. strongly encourages electronic filings. masonry forebay about 30-foot-long by l. Individuals desiring to be included Please include the project number (P– 30-foot-wide by 10-foot-deep, trash on the Commission’s mailing list should 13080–000) on any comments or racks, and provisions for a new fish so indicate by writing to the Secretary motions filed. bypass facility. Putnam Green Power of the Commission. The Commission’s Rules of Practice would modify the intake structure as m. Competing Preliminary Permit— and Procedure require all intervenors required and install headgates to control Anyone desiring to file a competing filing documents with the Commission flows to the powerhouse; repair the application for preliminary permit for a to serve a copy of that document on existing trashrack as necessary; and proposed project must submit the each person in the official service list install fish passage facilities in competing application itself, or a notice for the project. Further, if an intervenor consultation with the state and federal of intent to file such an application, to files comments or documents with the resource agencies. The existing the Commission on or before the Commission relating to the merits of an underground conduit extends from the specified comment date for the issue that may affect the responsibilities intake south under CT Route 44 for particular application (see 18 CFR 4.36). of a particular resource agency, they approximately 135 feet to the Cargill Submission of a timely notice of intent must also serve a copy of the document Mills complex where it bifurcates into allows an interested person to file the on that resource agency. two conduits, each leading to competing preliminary permit j. Description of Existing Facilities abandoned hydro-generating facilities. application no later than 30 days after and Proposed Project: The proposed The underground conduit upstream of the specified comment date for the project would consist of constructing a the bifurcation would be restored. The particular application. A competing new powerhouse and appurtenant conduits downstream of the bifurcation preliminary permit application must works at the site of the existing Cargill would be replaced with a new single conform with 18 CFR 4.30 and 4.36. Falls Dam located at river mile 34 on the penstock, approximately 135-foot-long. n. Competing Development Quinebaug River. Flows would be The new powerhouse would be a Application—Any qualified diverted at the intake structure to the concrete structure approximately 48- development applicant desiring to file a new powerhouse and returned to the foot-long and 34-foot-wide. New competing development application river approximately 435 feet generating equipment will be installed must submit to the Commission, on or downstream via a new tailrace channel. consisting of a single, vertical axis before a specified comment date for the The proposed project would consist of Kaplan turbine direct connected to a particular application, either a the existing dam and intake structure; synchronous generator. The turbine competing development application or a new fish passage facilities; an existing would have a hydraulic capacity of notice of intent to file such an underground water conduit; a new approximately 940 cubic feet per second application. Submission of a timely penstock; a new powerhouse with (cfs) and a nominal rating of 2 MW. The notice of intent to file a development generating and control equipment; and powerhouse would also contain application allows an interested person a new tailrace and switchyard. The auxiliary electrical and mechanical to file the competing application no project would interconnect to the equipment and a fully automated digital later than 120 days after the specified existing Connecticut Light and Power control system. comment date for the particular (CL&P) utility pole number 1192 via a A new concrete tailrace application. A competing license new underground feed approximately approximately 30-foot-long by 20-foot- application must conform with 18 CFR 300 feet long. The new feed would be wide would return water to the 4.30 and 4.36. located entirely on property controlled Quinebaug River. A new switchyard o. Notice of Intent—A notice of intent by Putnam Green Power LLC. would be located adjacent to the power must specify the exact name, business Transmission would continue off-site house. The switchyard would include a address, and telephone number of the via an existing 480-volt overhead new generator step-up transformer, prospective applicant, and must include transmission line and connect with the switchgear and metering equipment. an unequivocal statement of intent to

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submit, if such an application may be Applicant. If an agency does not file instructions on the Commission’s Web filed, either a preliminary permit comments within the time specified for site under the ‘‘e-Filing’’ link. application or a development filing comments, it will be presumed to The Commission strongly encourages application (specify which type of have no comments. One copy of an e-filings. application). A notice of intent must be agency’s comments must also be sent to k. Description of Request: Progress served on the applicant(s) named in this the Applicant’s representatives. Energy has requested Commission public notice. authorization to permit Jordan p. Proposed Scope of Studies under Kimberly D. Bose, Timberlands, Inc., to modify its existing Permit—A preliminary permit, if issued, Secretary. Dock & Shop Marina. The modifications does not authorize construction. The [FR Doc. E8–2421 Filed 2–8–08; 8:45 am] would result in total of 69 boat slips for term of the proposed preliminary permit BILLING CODE 6717–01–P this facility. Currently, there are would be 36 months. The work approximately 40 boat slips at this proposed under the preliminary permit facility. Other work includes seawall would include economic analysis, DEPARTMENT OF ENERGY construction and improvements to an preparation of preliminary engineering existing boat ramp. The facility is open plans, and a study of environmental Federal Energy Regulatory to the public. impacts. Based on the results of these Commission l. Location of the Application: This studies, the Applicant would decide [Project No. 2206–032] filing is available for review at the whether to proceed with the preparation Commission or may be viewed on the of a development application to Progress Energy Carolinas, Inc.; Commission’s Web site at http:// construct and operate the project. Notice of Application for Non-Project www.ferc.gov, using the ‘‘eLibrary’’ link. q. Comments, Protests, or Motions to Use of Project Lands and Waters and Enter the docket number excluding the Intervene—Anyone may submit Soliciting Comments, Motions to last three digits in the docket number comments, a protest, or a motion to Intervene, and Protests field to access the document. For intervene in accordance with the assistance, contact FERC Online requirements of Rules of Practice and February 4, 2008. Support at Procedure, 18 CFR 385.210, .211, .214. Take notice that the following [email protected] or toll- In determining the appropriate action to application has been filed with the free at (866) 208–3676, or for TTY, take, the Commission will consider all Commission and is available for public contact (202) 502–8659. protests or other comments filed, but inspection: m. Individuals desiring to be included only those who file a motion to a. Application Type: Non-Project Use on the Commission’s mailing list should intervene in accordance with the of Project Lands and Waters. so indicate by writing to the Secretary Commission’s Rules may become a b. Project No: 2206–032. of the Commission. party to the proceeding. Any comments, c. Date Filed: December 7, 2007. n. Comments, Protests, or Motions to protests, or motions to intervene must d. Applicant: Progress Energy Intervene—Anyone may submit be received on or before the specified Carolinas, Inc. comments, a protest, or a motion to comment date for the particular e. Name of Project: Yadkin-Pee Dee intervene in accordance with the application. River Hydroelectric Project, Tillery requirements of Rules of Practice and r. Filing and Service of Responsive Development. Procedure, 18 CFR 385.210, .211, .214. Documents—Any filings must bear in f. Location: This project is located on In determining the appropriate action to all capital letters the title the Yadkin Pee Dee River in North take, the Commission will consider all ‘‘COMMENTS’’, ‘‘NOTICE OF INTENT Carolina. The Tillery Development is protests or other comments filed, but TO FILE COMPETING APPLICATION’’, located in Stanly and Montgomery only those who file a motion to ‘‘COMPETING APPLICATION’’, counties, North Carolina. This project intervene in accordance with the ‘‘PROTEST’’, or ‘‘MOTION TO does not occupy any Tribal or federal Commission’s Rules may become a INTERVENE’’, as applicable, and the lands. party to the proceeding. Any comments, Project Number of the particular g. Filed Pursuant to: Federal Power protests, or motions to intervene must application to which the filing refers. Act, 16 U.S.C. 791(a), 825(r), 799, and be received on or before the specified Any of the above-named documents 801. comment date for the particular must be filed by providing the original h. Applicant Contact: Mr. Cecil application. and the number of copies provided by Gurganus, Manager of Hydropower o. Filing and Service of Responsive the Commission’s regulations to: The Operations; Progress Energy Carolinas, Documents—Any filings must bear in Secretary, Federal Energy Regulatory Inc.; (910) 439–5211, extension 1205. all capital letters the title Commission, 888 First Street, NE., i. FERC Contact: Any questions on ‘‘COMMENTS’’, ‘‘PROTEST’’, OR Washington, DC 20426. An additional this notice should be addressed to ‘‘MOTION TO INTERVENE’’, as copy must be sent to Director, Division Shana High at (202) 502–8674. applicable, and the Project Number of of Hydropower Administration and j. Deadline for filing comments and or the particular application to which the Compliance, Federal Energy Regulatory motions: March 4, 2008. filing refers. A copy of any motion to Commission, at the above-mentioned All documents (original and eight intervene must also be served upon each address. A copy of any notice of intent, copies) should be filed with: Kimberly representative of the Applicant competing application or motion to D. Bose, Secretary, Federal Energy specified in the particular application. intervene must also be served upon each Regulatory Commission, 888 First p. Agency Comments—Federal, state, representative of the Applicant Street, NE., Washington DC 20426. and local agencies are invited to file specified in the particular application. Please include the project number (P– comments on the described s. Agency Comments—Federal, state, 2206–032) on any comments or motions applications. A copy of the applications and local agencies are invited to file filed. Comments, protests, and may be obtained by agencies directly comments on the described application. interventions may be filed electronically from the Applicant. If an agency does A copy of the application may be via the Internet in lieu of paper. See, 18 not file comments within the time obtained by agencies directly from the CFR 385.2001(a)(1)(iii) and the specified for filing comments, it will be

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presumed to have no comments. One Applicants: Natural Gas Pipeline Co. Description: Texas Gas Transmission, copy of an agency’s comments must also of America. LLC submits Second Revised Sheet 402 be sent to the Applicant’s Description: Natural Gas Pipeline et al. to FERC Gas Tariff, Second representatives. Company of America submits Revised Volume 1, to be effective 3/1/ Transportation Rate Schedule FTS 08. Kimberly D. Bose, Agreements with negotiated rate Filed Date: 01/17/2008. Secretary. exhibits between Enbridge Marketing Accession Number: 20080118–0173. [FR Doc. E8–2413 Filed 2–8–08; 8:45 am] (US) LP. Comment Date: 5 p.m. Eastern Time BILLING CODE 6717–01–P Filed Date: 01/25/2008. on Monday, February 4, 2008. Accession Number: 20080128–0015. Docket Numbers: RP08–166–000. Comment Date: 5 p.m. Eastern Time DEPARTMENT OF ENERGY Applicants: Northern Natural Gas on Wednesday, February 6, 2008. Company. Federal Energy Regulatory Docket Numbers: RP06–200–042. Description: Northern Natural Gas Commission Applicants: Rockies Express Pipeline submits available points re Matagorda LLC. Offshore Pipeline System. Combined Notice of Filings Description: Rockies Express Pipeline Filed Date: 01/17/2008. LLC submits Second Revised Sheet 9H Accession Number: 20080118–0159. January 28, 2008. et al. to FERC Gas Tariff, Second Comment Date: 5 p.m. Eastern Time Take notice that the Commission has Revised Volume 1, to be effective 1/25/ on Monday, February 4, 2008. received the following Natural Gas 08. Docket Numbers: RP08–170–000. Pipeline Rate and Refund Report filings: Filed Date: 01/24/2008. Applicants: National Fuel Gas Supply Accession Number: 20080125–0203. Docket Numbers: CP05–119–003. Corporation. Comment Date: 5 p.m. Eastern Time Applicants: Cameron Interstate Description: Natural Fuel Gas Supply on Tuesday, February 5, 2008. Pipeline LLC. Corporation submits Second Revised Description: Cameron submits an Docket Numbers: RP07–99–003. Sheet 788 et al. to FERC Gas Tariff, First abbreviated application for a limited Applicants: ANR Pipeline Company. Revised Volume 2, to be effective 11/1/ amendment to Cameron’s Section 7 Description: ANR Pipeline Company 07. authorizations. submits Substitute Seventeenth Sheet Filed Date: 01/23/2008. Filed Date: 01/15/2008. 570 to FERC Gas Tariff, Original Volume Accession Number: 20080124–0378. Accession Number: 20080118–0174. 2, to be effective 1/1/08. Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time Filed Date: 01/24/2008. on Monday, February 4, 2008. on Monday, February 4, 2008. Accession Number: 20080125–0204. Docket Numbers: RP08–171–000. Docket Numbers: CP06–275–001. Comment Date: 5 p.m. Eastern Time Applicants: Alliance Pipeline LP. Applicants: Equitrans, L.P. on Tuesday, February 5, 2008. Description: Alliance Pipeline, LP Description: Equitrans, L.P., submits Docket Numbers: RP08–97–003. submits its Third Revised Sheet 279 to Original Sheet No. 4A, et al., to its FERC Applicants: ANR Pipeline Company. Gas Tariff, Original Volume No. 1, to be Description: ANR Pipeline Co. its FERC Gas Tariff, Original Volume 1, effective March 1, 2008. submits Substitute Eighteenth Revised to be effective 3/1/08. Filed Date: 01/18/2008. Sheet 570 to FERC Gas Tariff, Original Filed Date: 01/24/2008. Accession Number: 20080124–0379. Volume 2, to be effective 1/1/08. Accession Number: 20080125–0147. Comment Date: 5 p.m. Eastern Time Filed Date: 01/24/2008. Comment Date: 5 p.m. Eastern Time on Monday, February 4, 2008. Accession Number: 20080125–0205. on Tuesday, February 5, 2008. Docket Numbers: RP96–312–176. Comment Date: 5 p.m. Eastern Time Docket Numbers: RP08–172–000. Applicants: Tennessee Gas Pipeline on Tuesday, February 5, 2008. Applicants: Trailblazer Pipeline Company. Docket Numbers: RP08–128–001. Company LLC. Description: Tennessee Gas Pipeline Applicants: Northern Border Pipeline Description: Trailblazer Pipeline Company submits a Gas Transportation Company. Company LLC submits report on refund Agreement and ENI Petroleum U.S. LLC Description: Northern Border Pipeline of penalty revenues under RP08–172. pursuant to Tennessee Rate Schedule Company submits Substitute Twelfth Filed Date: 01/25/2008. Agreement and a Firm Transportation Revised Sheet 300 and Substitute Tenth Accession Number: 20080128–0014. Negotiated Rate Letter Agreement dated Revised Sheet 300A to FERC Gas Tariff, Comment Date: 5 p.m. Eastern Time 12/31/07. First Revised Volume 1. on Wednesday, February 6, 2008. Filed Date: 01/23/2008. Filed Date: 01/22/2008. Docket Numbers: RP08–173–000. Accession Number: 20080124–0377. Accession Number: 20080124–0376. Applicants: Transcontinental Gas Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time Pipe Line Corp. on Monday, February 4, 2008. on Monday, February 4, 2008. Description: Transcontinental Gas Docket Numbers: RP96–312–177. Docket Numbers: RP08–139–001. Pipe Line Corp submits Fortieth Revised Applicants: Tennessee Gas Pipeline Applicants: Iroquois Gas Sheet 28 to FERC Gas Tariff, Third Company. Transmission System, L.P. Revised Volume 1, to be effective Description: Tennessee Gas Pipeline Description: Supplement to Filing of 2/1/08. Co. submits Original Sheet 413B to Iroquois Gas Transmission System, L.P. Filed Date: 01/25/2008. FERC Gas Tariff, Fifth Revised Volume Filed Date: 01/22/2008. Accession Number: 20080128–0116. 1, to be effective 1/20/08. Accession Number: 20080122–5008. Comment Date: 5 p.m. Eastern Time Filed Date: 01/24/2008. Comment Date: 5 p.m. Eastern Time on Wednesday, February 6, 2008. Accession Number: 20080125–0202. on Monday, February 4, 2008. Any person desiring to intervene or to Comment Date: 5 p.m. Eastern Time Docket Numbers: RP08–165–000. protest in any of the above proceedings on Tuesday, February 5, 2008. Applicants: Texas Gas Transmission, must file in accordance with Rules 211 Docket Numbers: RP99–176–151. LLC. and 214 of the Commission’s Rules of

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Practice and Procedure (18 CFR 385.211 DEPARTMENT OF ENERGY compliance filing if you have previously and 385.214) on or before 5 p.m. Eastern intervened in the same docket. Protests time on the specified comment date. It Federal Energy Regulatory will be considered by the Commission is not necessary to separately intervene Commission in determining the appropriate action to again in a subdocket related to a be taken, but will not serve to make Combined Notice Filings #1 compliance filing if you have previously protestants parties to the proceeding. intervened in the same docket. Protests February 5, 2008. Anyone filing a motion to intervene or protest must serve a copy of that will be considered by the Commission Take notice that the Commission has document on the Applicant. In reference in determining the appropriate action to received the following Natural Gas to filings initiating a new proceeding, be taken, but will not serve to make Pipeline Rate and Refund Report filings: interventions or protests submitted on protestants parties to the proceeding. Docket Numbers: RP07–443–002. or before the comment deadline need Anyone filing a motion to intervene or Applicants: Iroquois Gas not be served on persons other than the protest must serve a copy of that Transmission System, L.P. Applicant. document on the Applicant. In reference Description: Iroquois Gas The Commission encourages to filings initiating a new proceeding, Transmission System, LP submits electronic submission of protests and interventions or protests submitted on Substitute First Revised Sheet 50C et al interventions in lieu of paper, using the or before the comment deadline need to FERC Gas Tariff, First Revised FERC Online links at http:// not be served on persons other than the Volume 1, to be effective 2/1/08 under www.ferc.gov. To facilitate electronic Applicant. RP07–443. service, persons with Internet access Filed Date: 01/31/2008. The Commission encourages who will eFile a document and/or be Accession Number: 20080205–0289. listed as a contact for an intervenor electronic submission of protests and Comment Date: 5 p.m. Eastern Time interventions in lieu of paper, using the must create and validate an on Tuesday, February 12, 2008. eRegistration account using the FERC Online links at http:// Docket Numbers: RP07–711–001. eRegistration link. Select the eFiling www.ferc.gov. To facilitate electronic Applicants: Transcontinental Gas link to log on and submit the service, persons with Internet access Pipe Line Corp. intervention or protests. who will eFile a document and/or be Description: Response of Persons unable to file electronically listed as a contact for an intervenor Transcontinental Gas Pipe Line should submit an original and 14 copies must create and validate an Corporation with requested of the intervention or protest to the eRegistration account using the explanations to the October 31, 2007 Federal Energy Regulatory Commission, eRegistration link. Select the eFiling Commission Order under RP07–711. 888 First St., NE., Washington, DC link to log on and submit the Filed Date: 11/15/2007. 20426. intervention or protests. Accession Number: 20071115–5060. The filings in the above proceedings Persons unable to file electronically Comment Date: 5 p.m. Eastern Time are accessible in the Commission’s should submit an original and 14 copies on Monday, February 11, 2008. eLibrary system by clicking on the of the intervention or protest to the Docket Numbers: RP08–167–001. appropriate link in the above list. They Federal Energy Regulatory Commission, Applicants: TransColorado Gas are also available for review in the Commission’s Public Reference Room in 888 First St., NE., Washington, DC Transmission Company LC. Washington, DC. There is an 20426. Description: TransColorado Gas Transmission Company, LLC submits eSubscription link on the Web site that The filings in the above proceedings Substitute Original Sheet 267 to FERC enables subscribers to receive e-mail are accessible in the Commission’s Gas Tariff, Second Revised Volume 1, to notification when a document is added eLibrary system by clicking on the be effective 12/28/07 under RP08–167. to a subscribed docket(s). For assistance appropriate link in the above list. They Filed Date: 01/31/2008. with any FERC Online service, please are also available for review in the Accession Number: 20080205–0290. e-mail [email protected]. or Commission’s Public Reference Room in Comment Date: 5 p.m. Eastern Time call (866) 208–3676 (toll free). For TTY, Washington, DC. There is an on Tuesday, February 12, 2008. call (202) 502–8659. eSubscription link on the Web site that Docket Numbers: RP08–183–000. Nathaniel J. Davis, Sr., enables subscribers to receive e-mail Applicants: Northern Natural Gas Deputy Secretary. notification when a document is added Company. [FR Doc. E8–2448 Filed 2–8–08; 8:45 am] to a subscribed docket(s). For assistance Description: Petition of Northern BILLING CODE 6717–01–P with any FERC Online service, please e- Natural Gas Company for a limited mail [email protected]. or waiver of tariff provisions under RP08– call (866) 208–3676 (toll free). For TTY, 183. DEPARTMENT OF ENERGY call (202) 502–8659. Filed Date: 01/31/2008. Accession Number: 20080205–0288. Federal Energy Regulatory Kimberly D. Bose, Comment Date: 5 p.m. Eastern Time Commission Secretary. on Tuesday, February 12, 2008. Combined Notice of Filings #1 [FR Doc. E8–2440 Filed 2–8–08; 8:45 am] Any person desiring to intervene or to BILLING CODE 6717–01–P protest in any of the above proceedings February 1, 2008. must file in accordance with Rules 211 Take notice that the Commission and 214 of the Commission’s Rules of received the following electric rate Practice and Procedure (18 CFR 385.211 filings: and 385.214) on or before 5 p.m. Eastern Docket Numbers: ER91–569–038. time on the specified comment date. It Applicants: Entergy Services, Inc. is not necessary to separately intervene Description: Entergy Arkansas, Inc again in a subdocket related to a and Entergy Gulf States Louisiana, LLC

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et al. reports a non-material change in Accession Number: 20080131–0146. its application for market-based rate status pursuant to the requirements of Comment Date: 5 p.m. Eastern Time authority. Order 652. on Tuesday, February 19, 2008. Filed Date: 01/30/2008. Filed Date: 01/30/2008. Docket Numbers: ER07–407–003; Accession Number: 20080131–0094. Accession Number: 20080131–0090. ER07–342–002; ER07–522–002. Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time Applicants: High Prairie Wind Farm on Wednesday, February 20, 2008. on Wednesday, February 20, 2008. II, LLC; Telocaset Wind Power Partners, Docket Numbers: ER08–411–001. Docket Numbers: ER01–138–005. LLC; Old Trail Wind Farm, LLC. Applicants: Tiger Natural Gas, Inc. Applicants: Delta Person Limited Description: High Prairie Wind Farm Description: Tiger Natural Gas Inc’s Partnership. II, LLC et al. submits a notice of non- amended petition for acceptance of Description: Delta Person Limited material change in status in compliance initial tariff, waivers and blanket Partnership submits a notice of non- with FERC’s Order 652. authority. material change in status in compliance Filed Date: 01/30/2008. Filed Date: 01/30/2008. with the reporting requirements of Accession Number: 20080131–0093. Accession Number: 20080131–0059. FERC’s Order 652. Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time Filed Date: 01/30/2008. on Wednesday, February 20, 2008. on Wednesday, February 20, 2008. Accession Number: 20080131–0091. Docket Numbers: ER07–1105–003. Docket Numbers: ER08–490–000. Comment Date: 5 p.m. Eastern Time Applicants: Cedar Creek Wind Applicants: PJM Interconnection, on Wednesday, February 20, 2008. Energy, LLC. L.L.C. Docket Numbers: ER01–316–027. Description: Cedar Creek Wind Description: PJM Interconnection, Applicants: ISO New England Inc. Energy, LLC submits an amendment to LLC submits an executed Interim Description: ISO New England Inc. its Rate Schedule FERC 1. Interconnection Service Agreement with submits its Index of Customers for the Filed Date: 01/25/2008. High Trail Wind Farm et al. fourth quarter of 2007. Accession Number: 20080130–0181. Filed Date: 01/29/2008. Filed Date: 01/30/2008. Comment Date: 5 p.m. Eastern Time Accession Number: 20080130–0081. Accession Number: 20080131–0057. on Friday, February 15, 2008. Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time Docket Numbers: ER07–1399–001. on Tuesday, February 19, 2008. on Wednesday, February 20, 2008. Applicants: PJM Interconnection, Docket Numbers: ER08–491–000. Docket Numbers: ER04–805–007. L.L.C. Applicants: The Empire District Applicants: Wabash Valley Power Description: PJM Interconnection LLC Electric Company. Association, Inc. notifies FERC of the effective dates of Description: The Empire District Description: Wabash Valley Power two executed interconnection service Electric Co. submits its Original Sheet 1 Association, Inc submits a Notice of agreements with Connective Delmarva et al. to FERC Electric Tariff, First Change in Status in compliance with Generation, Inc et al. Revised Volume 2, effective 1/29/08. FERC’s Order 652. Filed Date: 01/31/2008 Filed Date: 01/28/2008. Filed Date: 01/30/2008. Accession Number: 20080201–0124. Accession Number: 20080131–0092. Comment Date: 5 p.m. Eastern Time Accession Number: 20080130–0085. Comment Date: 5 p.m. Eastern Time on Thursday, February 21, 2008. Comment Date: 5 p.m. Eastern Time on Tuesday, February 19, 2008. on Wednesday, February 20, 2008. Docket Numbers: ER08–15–001. Docket Numbers: ER06–275–003. Applicants: Midwest ISO Docket Numbers: ER08–492–000. Applicants: Northeast Utilities Transmission Owners. Applicants: PJM Interconnection, Service Company. Description: Midwest ISO L.L.C. Description: The Connecticut Light & Transmission Owners responds to FERC Description: PJM Interconnection, Power Co et al. submits a report 11/30/07 Deficiency Letter requesting LLC submits an executed Interim updating the Commission on the status additional information. Interconnection Service Agreement. of four major transmission projects in Filed Date: 01/31/2008. Filed Date: 01/29/2008. Southwest Connecticut and providing Accession Number: 20080201–0129. Accession Number: 20080130–0082. accounting information etc. Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time Filed Date: 01/30/2008. on Thursday, February 21, 2008. on Tuesday, February 19, 2008. Accession Number: 20080131–0060. Docket Numbers: ER08–185–001; Docket Numbers: ER08–493–000. Comment Date: 5 p.m. Eastern Time ER08–186–001. Applicants: PJM Interconnection, on Wednesday, February 20, 2008. Applicants: Ameren Energy Marketing L.L.C. Docket Numbers: ER06–739–009; Company. Description: PJM Interconnection, ER06–738–009; ER02–537–012; ER03– Description: Ameren Services LLC submits an executed Interim 983–008; ER07–501–005; ER07–758– Company Submits Letter in Support of Interconnection Service Agreement with 004. Compliance Filings Submitted by Zion Energy, LLC et al. Applicants: East Coast Power Linden Ameren Energy Marketing Company Filed Date: 01/29/2008. Holding, LLC; Cogen Technologies and Union Electric Company. Accession Number: 20080130–0083. Linden Ventures, L.P.; Fox Energy Filed Date: 01/30/2008; 01/30/2008. Comment Date: 5 p.m. Eastern Time Company LLC; Birchwood Power Accession Number: 20080131–0088; on Tuesday, February 19, 2008. Partners, L.P.; Shady Hills Power 20080130–5081; 20080139–5078. Docket Numbers: ER08–494–000. Company, L.L.C. Comment Date: 5 p.m. Eastern Time Applicants: PJM Interconnection, Description: The GE Companies on Wednesday, February 20, 2008. L.L.C. submits Notice of Change in Status Docket Numbers: ER08–354–001. Description: PJM Interconnection LLC resulting from the completion of the Applicants: Wells Fargo Energy submits an executed interconnection transaction authorized by the Markets, LLC. service agreement and an executed Commission pursuant to Order 652. Description: Wells Fargo Energy interconnection service agreement with Filed Date: 01/29/2008. Markets, LLC submits amendments to Lookout Windpower LLC et al.

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Filed Date: 01/28/2008. Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time Accession Number: 20080130–0084. on Thursday, February 21, 2008. on Thursday, February 21, 2008. Comment Date: 5 p.m. Eastern Time Docket Numbers: ER08–504–000. Take notice that the Commission on Tuesday, February 19, 2008. Applicants: Florida Power & Light received the following open access Docket Numbers: ER08–495–000. Company. transmission tariff filings: Applicants: Kimberly-Clark Description: Florida Power & Light Co Docket Numbers: OA07–11–002; Corporation. submits Rate Schedule 306, the OA07–33–001. Description: Kimberly-Clark Midway-Hartman #2 138kV Applicants: Deseret Generation & Corporation submits a Petition for Interconnection Agreement with Florida Transmission Co-op. Acceptance of FERC Electric Rate Municipal Power Agency et al. Description: Order No. 890 OATT Schedule 1, with an effective dated 1/ Filed Date: 01/31/2008. Compliance Filing of Deseret Generation 30/07. Accession Number: 20080201–0126. & Transmission Co-operative, Inc. Filed Date: 01/30/2008. Comment Date: 5 p.m. Eastern Time Filed Date: 01/31/2008. Accession Number: 20080131–0058. on Thursday, February 21, 2008. Accession Number: 20080131–5108. Comment Date: 5 p.m. Eastern Time Docket Numbers: ER08–505–000. Comment Date: 5 p.m. Eastern Time on Wednesday, February 20, 2008. Applicants: Xcel Energy Services Inc. on Thursday, February 21, 2008. Docket Numbers: ER08–496–000. Description: Northern States Power Co Docket Numbers: OA07–31–002. Applicants: Southwest Power Pool, submits a Notice of Termination of the Applicants: Aquila, Inc. Inc. Transmission Capacity and Planning Description: Aquila, Inc. errata filing Description: Southwest Power Pool Agreement between Northern States in Docket No. OA07–31. Inc submits an executed Interconnection Power Co and the City of Windom, MN. Filed Date: 01/31/2008. Agreement designated as Service Filed Date: 01/31/2008. Accession Number: 20080131–5010. Agreement 1602 to the Open Access Accession Number: 20080201–0125. Comment Date: 5 p.m. Eastern Time Transmission Tariff. Comment Date: 5 p.m. Eastern Time on Thursday, February 21, 2008. Filed Date: 01/30/2008. on Thursday, February 21, 2008. Docket Numbers: OA07–90–002. Accession Number: 20080131–0061. Take notice that the Commission Applicants: MidAmerican Energy Comment Date: 5 p.m. Eastern Time received the following electric securities Company. on Wednesday, February 20, 2008. filings: Description: MidAmerican Energy submits substitute tariff sheet and Docket Numbers: ER08–497–000. Docket Numbers: ES08–21–001; process flow diagram to Attachment C Applicants: El Paso Electric Company. ES08–22–001; ES08–23–001. in OA07–90. Description: El Paso Electric Co. Applicants: Kansas Gas and Electric Filed Date: 01/31/2008. submits its notice of cancellation of its Company, Westar Energy, Inc. Accession Number: 20080131–5041. Rate Schedule 18 and all supplements. Description: Form 523—Request for Comment Date: 5 p.m. Eastern Time Filed Date: 01/30/2008. Permission to Issue Securities of Kansas on Thursday, February 21, 2008. Accession Number: 20080131–0095. Gas and Electric Company, and Westar Comment Date: 5 p.m. Eastern Time Energy, Inc. Any person desiring to intervene or to on Wednesday, February 20, 2008. Filed Date: 01/30/2008. protest in any of the above proceedings Accession Number: 20080129–5085. must file in accordance with Rules 211 Docket Numbers: ER08–498–000. and 214 of the Commission’s Rules of Applicants: New York Independent Comment Date: 5 p.m. Eastern Time on Monday, February 11, 2008. Practice and Procedure (18 CFR 385.211 System Operator, Inc. and 385.214) on or before 5 p.m. Eastern Description: New York Independent Docket Numbers: ES08–28–000. time on the specified comment date. It System Operator, Inc submits proposed Applicants: International is not necessary to separately intervene revisions to its Open Access Transmission Company. again in a subdocket related to a Transmission Tariff and Market Description: Form 523—Request for compliance filing if you have previously Administration and Control Area Permission to Issue Securities of intervened in the same docket. Protests Services Tariff. International Transmission Company. will be considered by the Commission Filed Date: 01/30/2008. Filed Date: 01/30/2008. in determining the appropriate action to Accession Number: 20080131–0096. Accession Number: 20080130–5076. be taken, but will not serve to make Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time protestants parties to the proceeding. on Wednesday, February 20, 2008. on Wednesday, February 20, 2008. Anyone filing a motion to intervene or Docket Numbers: ER08–502–000. Docket Numbers: ES08–29–000. protest must serve a copy of that Applicants: Linde Energy Services, Applicants: ENTERGY SERVICES document on the Applicant. In reference Inc. INC. to filings initiating a new proceeding, Description: Linde Energy Services, Description: Form 523—Entergy interventions or protests submitted on Inc submits notification of succession. Services, Inc. et al.—Joint Application or before the comment deadline need Filed Date: 01/31/2008. for Authorization to Issue Securities. not be served on persons other than the Accession Number: 20080201–0128. Filed Date: 01/31/2008. Applicant. Comment Date: 5 p.m. Eastern Time Accession Number: 20080131–5088. The Commission encourages on Thursday, February 21, 2008. Comment Date: 5 p.m. Eastern Time electronic submission of protests and Docket Numbers: ER08–503–000. on Thursday, February 21, 2008. interventions in lieu of paper, using the Applicants: MidAmerican Energy Docket Numbers: ES08–30–000. FERC Online links at http:// Company. Applicants: Entergy Louisiana, LLC. www.ferc.gov. To facilitate electronic Description: MidAmerican Energy Co Description: Form 523—Application service, persons with Internet access submits an amended Network Operating of Entergy Louisiana, LLC for who will eFile a document and/or be Agreement with City of Geneseo, IL. Authorization to Issue Securities. listed as a contact for an intervenor Filed Date: 01/31/2008. Filed Date: 01/31/2008. must create and validate an Accession Number: 20080201–0127. Accession Number: 20080131–5091. eRegistration account using the

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eRegistration link. Select the eFiling should submit an original and 14 copies Washington, DC 20426, in accordance link to log on and submit the of the protest or intervention to the with Rules 211 and 214 of the intervention or protests. Federal Energy Regulatory Commission, Commission’s Rules of Practice and Persons unable to file electronically 888 First Street, NE., Washington, DC Procedure. 18 CFR 385.211, 385.214 should submit an original and 14 copies 20426. (2007). The Commission encourages the of the intervention or protest to the This filing is accessible on-line at electronic submission of protests using Federal Energy Regulatory Commission, http://www.ferc.gov, using the the FERC Online link at http:// 888 First St., NE., Washington, DC ‘‘eLibrary’’ link and is available for www.ferc.gov. 20426. review in the Commission’s Public Notice is hereby given that the The filings in the above proceedings Reference Room in Washington, DC. deadline for filing protests is March 3, are accessible in the Commission’s There is an ‘‘eSubscription’’ link on the 2008. eLibrary system by clicking on the Web site that enables subscribers to Absent a request to be heard in appropriate link in the above list. They receive e-mail notification when a opposition to such blanket approvals by are also available for review in the document is added to a subscribed the deadline above, Argo Navis is Commission’s Public Reference Room in docket(s). For assistance with any FERC authorized to issue securities and Washington, DC. There is an Online service, please e-mail assume obligations or liabilities as a eSubscription link on the Web site that [email protected], or call guarantor, indorser, surety, or otherwise enables subscribers to receive email (866) 208–3676 (toll free). For TTY, call in respect of any security of another notification when a document is added (202) 502–8659. person; provided that such issuance or to a subscribed docket(s). For assistance Comment Date: 5 p.m. Eastern Time assumption is for some lawful object with any FERC Online service, please on February 28, 2008. within the corporate purposes of Argo e-mail [email protected]. or Navis, compatible with the public Kimberly D. Bose, call (866) 208–3676 (toll free). For TTY, interest, and is reasonably necessary or call (202) 502–8659. Secretary. appropriate for such purposes. [FR Doc. E8–2414 Filed 2–8–08; 8:45 am] The Commission reserves the right to Nathaniel J. Davis, Sr., BILLING CODE 6717–01–P require a further showing that neither Deputy Secretary. public nor private interests will be [FR Doc. E8–2449 Filed 2–8–08; 8:45 am] adversely affected by continued BILLING CODE 6717–01–P DEPARTMENT OF ENERGY approvals of Argo Navis’s issuance of Federal Energy Regulatory securities or assumptions of liability. Commission Copies of the full text of the Director’s DEPARTMENT OF ENERGY Order are available from the [Docket Nos. ER08–284–000; ER08–284– Commission’s Public Reference Room, Federal Energy Regulatory 001] Commission 888 First Street, NE., Washington, DC 20426. The Order may also be viewed [Docket No. EL08–37–000] Argo Navis Fundamental Power Fund, on the Commission’s Web site at L.P.; Notice of Issuance of Order http://www.ferc.gov, using the eLibrary Integrys Energy Group; Notice of Filing February 1, 2008. link. Enter the docket number excluding February 4, 2008. Argo Navis Fundamental Power Fund, the last three digits in the docket Take notice that on January 29, 2008, L.P. (Argo Navis) filed an application for number filed to access the document. Integrys Energy Group, Inc., on behalf of market-based rate authority, with Comments, protests, and interventions its subsidiaries with electric market- accompanying rate schedule. The may be filed electronically via the based rate authority, filed a ‘‘Petition for proposed market-based rate schedule Internet in lieu of paper. See, 18 CFR Declaratory Order, pursuant to 18 CFR provides for the sale of energy, capacity 385.2001(a)(1)(iii) and the instructions 207(a) (2007). and ancillary services at market-based on the Commission’s Web site under the Any person desiring to intervene or to rates. Argo Navis also requested waivers ‘‘e-Filing’’ link. The Commission protest this filing must file in of various Commission regulations. In strongly encourages electronic filings. accordance with Rules 211 and 214 of particular, Argo Navis requested that the Kimberly D. Bose, the Commission’s Rules of Practice and Commission grant blanket approval Secretary. under 18 CFR part 34 of all future Procedure (18 CFR 385.211, 385.214). [FR Doc. E8–2411 Filed 2–8–08; 8:45 am] Protests will be considered by the issuances of securities and assumptions Commission in determining the of liability by Argo Navis. BILLING CODE 6717–01–P appropriate action to be taken, but will On February 1, 2008, pursuant to not serve to make protestants parties to delegated authority, the Director, DEPARTMENT OF ENERGY the proceeding. Any person wishing to Division of Tariffs and Market become a party must file a notice of Development-West, granted the requests Federal Energy Regulatory intervention or motion to intervene, as for blanket approval under part 34 Commission appropriate. Such notices, motions, or (Director’s Order). The Director’s Order protests must be filed on or before the also stated that the Commission would [Docket Nos. ER08–326–000; ER08–326–001 Lehigh Capital, LLC] comment date. On or before the publish a separate notice in the Federal comment date, it is not necessary to Register establishing a period of time for Notice of Issuance of Order serve motions to intervene or protests the filing of protests. Accordingly, any on persons other than the Applicant. person desiring to be heard concerning February 1, 2008. The Commission encourages the blanket approvals of issuances of Lehigh Capital, LLC (Lehigh Capital) electronic submission of protests and securities or assumptions of liability by filed an application for market-based interventions in lieu of paper using the Argo Navis, should file a protest with rate authority, with accompanying rate ‘‘eFiling’’ link at http://www.ferc.gov. the Federal Energy Regulatory schedule. The proposed market-based Persons unable to file electronically Commission, 888 First Street, NE., rate schedule provides for the sale of

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energy and capacity at market-based on the Commission’s Web site under the person; provided that such issuance or rates. Lehigh Capital also requested ‘‘e-Filing’’ link. The Commission assumption is for some lawful object waivers of various Commission strongly encourages electronic filings. within the corporate purposes of Nexen regulations. In particular, Lehigh Capital Marketing, compatible with the public Kimberly D. Bose, requested that the Commission grant interest, and is reasonably necessary or blanket approval under 18 CFR part 34 Secretary. appropriate for such purposes. of all future issuances of securities and [FR Doc. E8–2408 Filed 2–8–08; 8:45 am] The Commission reserves the right to assumptions of liability by Lehigh BILLING CODE 6717–01–P require a further showing that neither Capital. public nor private interests will be On January 31, 2008, pursuant to adversely affected by continued delegated authority, the Director, DEPARTMENT OF ENERGY approvals of Nexen Marketing’s Division of Tariffs and Market issuance of securities or assumptions of Federal Energy Regulatory Development-West, granted the requests liability. Commission for blanket approval under part 34 Copies of the full text of the Director’s (Director’s Order). The Director’s Order [Docket No. ER08–338–000] Order are available from the also stated that the Commission would Commission’s Public Reference Room, publish a separate notice in the Federal Nexen Marketing U.S.A. Inc.; Notice of 888 First Street, NE., Washington, DC Register establishing a period of time for Issuance of Order 20426. The Order may also be viewed the filing of protests. Accordingly, any February 1, 2008. on the Commission’s Web site at person desiring to be heard concerning http://www.ferc.gov, using the eLibrary the blanket approvals of issuances of Nexen Marketing U.S.A. Inc. (Nexen Marketing) filed an application for link. Enter the docket number excluding securities or assumptions of liability by the last three digits in the docket Lehigh Capital, should file a protest market-based rate authority, with accompanying rate schedule. The number filed to access the document. with the Federal Energy Regulatory Comments, protests, and interventions Commission, 888 First Street, NE., proposed market-based rate schedule provides for the sale of energy and may be filed electronically via the Washington, DC 20426, in accordance Internet in lieu of paper. See, 18 CFR with Rules 211 and 214 of the capacity at market-based rates. Nexen Marketing also requested waivers of 385.2001(a)(1)(iii) and the instructions Commission’s Rules of Practice and on the Commission’s Web site under the Procedure. 18 CFR 385.211, 385.214 various Commission regulations. In particular, Nexen Marketing requested ‘‘e-Filing’’ link. The Commission (2007). The Commission encourages the strongly encourages electronic filings. electronic submission of protests using that the Commission grant blanket the FERC Online link at http:// approval under 18 CFR part 34 of all Kimberly D. Bose, www.ferc.gov. future issuances of securities and Secretary. Notice is hereby given that the assumptions of liability by Nexen [FR Doc. E8–2409 Filed 2–8–08; 8:45 am] deadline for filing protests is March 3, Marketing. BILLING CODE 6717–01–P 2008. On January 31, 2008, pursuant to Absent a request to be heard in delegated authority, the Director, opposition to such blanket approvals by Division of Tariffs and Market DEPARTMENT OF ENERGY the deadline above, Lehigh Capital is Development—West, granted the authorized to issue securities and requests for blanket approval under part Federal Energy Regulatory assume obligations or liabilities as a 34 (Director’s Order). The Director’s Commission Order also stated that the Commission guarantor, indorser, surety, or otherwise [Docket No. CP07–191–001] in respect of any security of another would publish a separate notice in the person; provided that such issuance or Federal Register establishing a period of Port Dolphin Energy, LLC; Notice of assumption is for some lawful object time for the filing of protests. Limited Scoping for the Proposed Port within the corporate purposes of Lehigh Accordingly, any person desiring to be Dolphin Project and Request for Capital, compatible with the public heard concerning the blanket approvals Comments on Environmental Issues interest, and is reasonably necessary or of issuances of securities or assumptions appropriate for such purposes. of liability by Nexen Marketing, should February 4, 2008. The Commission reserves the right to file a protest with the Federal Energy The Federal Energy Regulatory require a further showing that neither Regulatory Commission, 888 First Commission (FERC or Commission) is public nor private interests will be Street, NE., Washington, DC 20426, in cooperating with the U.S. Coast Guard adversely affected by continued accordance with Rules 211 and 214 of (Coast Guard), the lead federal agency approvals of Lehigh Capital’s issuance the Commission’s Rules of Practice and for environmental review of the Port of securities or assumptions of liability. Procedure. 18 CFR 385.211, 385.214 Dolphin Project. This proposal involves Copies of the full text of the Director’s (2007). The Commission encourages the the construction and operation of an Order are available from the electronic submission of protests using offshore liquefied natural gas (LNG) Commission’s Public Reference Room, the FERC Online link at http:// deepwater port (under the jurisdiction 888 First Street, NE., Washington, DC www.ferc.gov. of the Coast Guard and the Maritime 20426. The Order may also be viewed Notice is hereby given that the Administration) and associated pipeline on the Commission’s Web site at deadline for filing protests is March 3, facilities, including about 3.9 miles of http://www.ferc.gov, using the eLibrary 2008. onshore pipeline under the link. Enter the docket number excluding Absent a request to be heard in Commission’s jurisdiction. FERC staff is the last three digits in the docket opposition to such blanket approvals by assisting the Coast Guard in its number filed to access the document. the deadline above, Nexen Marketing is preparation of an environmental impact Comments, protests, and interventions authorized to issue securities and statement (EIS) that will discuss the may be filed electronically via the assume obligations or liabilities as a environmental impacts of the Port Internet in lieu of paper. See, 18 CFR guarantor, indorser, surety, or otherwise Dolphin Project. This cooperative effort 385.2001(a)(1)(iii) and the instructions in respect of any security of another is to comply with the National

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Environmental Policy Act of 1969 this notice, you are on the Public Participation (NEPA), which requires the Commission environmental mailing list for this You can make a difference by to take into account the environmental project and will continue to receive providing us with your specific impact that could result from an action project updates including the draft and comments or concerns about the project. whenever it considers the issuance of a final EISs. By becoming a commentor, your A fact sheet prepared by the FERC Certificate of Public Convenience and concerns will be addressed in the EIS entitled ‘‘An Interstate Natural Gas Necessity under section 7 of the Natural and considered by the Commission. You Facility On My Land? What Do I Need Gas Act. should focus on the potential NEPA requires the FERC to discover To Know?’’ addresses a number of environmental effects of the proposal, and address concerns the public may typically asked questions, including the alternatives to the proposal including have about proposals under its review. use of eminent domain and how to This process is referred to as ‘‘scoping.’’ participate in the Commission’s alternative pipeline routes, and On January 18, 2008, Port Dolphin proceedings. It is available for viewing measures to avoid or lessen Energy, LLC (Port Dolphin) amended its on the FERC Internet Web site (http:// environmental impact. The more application with the FERC regarding the www.ferc.gov). specific your comments, the more useful proposed onshore pipeline route. Thus, they will be. Please carefully follow Summary of the Proposed Project the FERC is opening a scoping period to these instructions to ensure that your (FERC Jurisdictional Facilities) solicit input from the public and comments are received in time and Port Dolphin proposes to construct properly recorded: interested agencies limited to the • proposed onshore pipeline and related about 3.93 miles of 36-inch-diameter Send an original and two copies of facilities (i.e., those under FERC pipeline extending from the high water your letter to: Kimberley D. Bose, jurisdiction) in Manatee County, mark in Manatee County (where the Secretary, Federal Energy Regulatory Florida. Your input will help determine offshore pipeline comes ashore) to a Commission, 888 First St., NE.; Room new interconnection station (also in 1A, Washington, DC 20426. which issues need to be evaluated in the • EIS.1 Please note that the scoping period Manatee County), where the pipeline Label one copy of the comments for would join with the interstate the attention of Gas Branch 1. will close on March 5, 2008, and • comments should be limited to the Gulfstream Natural Gas Pipeline and the Reference Docket No. CP07–191– intrastate TECO/Peoples Pipeline 001. onshore facilities described in this • amended docket. Details on how to systems. Associated valves and Mail your comments so that they submit comments are provided in the appurtenant facilities are also proposed. will be received in Washington, DC on Public Participation section of this The general location of the proposed or before March 5, 2008. notice. onshore pipeline is shown in appendix The Commission encourages If you are a landowner receiving this 1.3 electronic filing of comments. See 18 Code of Federal Regulations notice, you may be contacted by a Land Requirements for Construction pipeline company representative about 385.2001(a)(1)(iii) and the instructions the acquisition of an easement to The construction right-of-way would on the Commission’s Internet Web site construct, operate, and maintain the be 100 feet wide, of which 30 feet would at http://www.ferc.gov under the proposed facilities. Port Dolphin would be retained as permanent right-of-way. ‘‘eFiling’’ link and the link to the User’s seek to negotiate a mutually acceptable A total of about 63.6 acres of land would Guide. Prepare your submission in the agreement. However, if the project is be affected by pipeline construction. Of same manner as you would if filing on approved by the Commission, that this, about 13.8 acres would be paper and save it to a file on your hard approval conveys with it the right of permanently impacted for operation. drive. Before you can file comments you eminent domain. Therefore, if easement The proposed interconnections would will need to create an account by negotiations fail to produce an be constructed on property owned by clicking on ‘‘Login to File’’ and then agreement, Port Dolphin could initiate Port Dolphin and would encompass a ‘‘New User Account.’’ You will be asked condemnation proceedings in 120-foot by 1,319-foot permanent to select the type of filing you are accordance with Florida state law. footprint. The valve station would making. This filing is considered a This notice is being sent to affected encompass a 50-foot by 60-foot ‘‘Comment on Filing.’’ landowners; federal, state, and local permanent footprint. Becoming an Intervenor government representatives and The majority (about 56 percent) of the agencies; elected officials; Native land crossed by the pipeline route is In addition to involvement in the EIS American tribes; other interested either classified as urban/industrial scoping process, you may want to parties; and local libraries and (e.g., commercial land and other utility become an official party to the newspapers. State and local government rights-of-way) or as agricultural/ proceeding known as an ‘‘intervenor.’’ representatives are asked to notify their rangeland. The remaining land Intervenors play a more formal role in constituents of this proposed project comprises upland forest, wetland, and the process. Among other things, surface water (e.g., ponds, canals, and and to encourage them to comment on intervenors have the right to receive ditches). their areas of concern.2 If you received copies of case-related Commission documents and filings by other 3 The appendices referenced in this notice are not 1 intervenors. Likewise, each intervenor For more information on the overall Port being printed in the Federal Register. Copies are Dolphin Project or the Coast Guard’s EIS process, available on the Commission’s Internet Web site must send one electronic copy (using see the July 12, 2007 edition of the Federal (http://www.ferc.gov) at the ‘‘eLibrary’’ link or from the Commission’s eFiling system) or 14 Register, page 38,116, ‘‘Port Dolphin Energy, LLC, the Commission’s Public Reference Room at 888 paper copies of its filings to the Port Dolphin Energy Liquefied Natural Gas First Street, NE., Washington, DC 20426, or call Deepwater Port License Application’’ under (202) 502–8371. For instructions on connecting to Secretary of the Commission and must Department of Transportation/Maritime eLibrary, refer to the ‘‘Additional Information’’ send a copy of its filings to all other Administration. section at the end of this notice. Copies of the parties on the Commission’s service list 2 Comments submitted during the Coast Guard’s appendices were sent to all those receiving this for this proceeding. If you want to scoping period (July 12–August 13, 2007) for the notice in the mail. Requests for detailed maps of the project as originally proposed do not need to be proposed facilities should be made directly to Port become an intervenor you must file a resubmitted. Dolphin. motion to intervene according to Rule

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214 of the Commission’s Rules of ENVIRONMENTAL PROTECTION comment period, which is addressed in Practice and Procedure (18 CFR AGENCY the ICR. Any additional comments on 385.214) (see appendix 2).4 Only this ICR should be submitted to EPA [EPA–HQ–OA–2007–0933; FRL–8527–3] intervenors have the right to seek and OMB within 30 days of this notice. EPA has established a public docket rehearing of the Commission’s decision. Agency Information Collection for this ICR under Docket ID No. EPA– Affected landowners and parties with Activities; Submission to OMB for HQ–OA–2007–0933, which is available environmental concerns may be granted Review and Approval; Comment for online viewing at intervenor status upon showing good Request; Confidential Financial www.regulations.gov, or in person cause by stating that they have a clear Disclosure Form for Special viewing at the Office of Environmental and direct interest in this proceeding Government Employees Serving on Information Docket in the EPA Docket which would not be adequately Federal Advisory Committees at the Center (EPA/DC), EPA West Room 3334, represented by any other parties. You do U.S. Environmental Protection Agency 1301 Constitution Ave., NW., not need intervenor status to have your (Renewal); EPA ICR No. 2260.02, OMB Washington, DC 20460. The EPA/DC environmental comments considered. Control No. 2090–0029 Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Additional Information AGENCY: Environmental Protection Agency (EPA). Friday, excluding legal holidays. The telephone number for the Reading Room Additional information about the ACTION: Notice. project is available from the is 202–566–1744, and the telephone Commission’s Office of External Affairs, SUMMARY: In compliance with the number for the Environmental Paperwork Reduction Act (PRA) (44 Information Docket is 202–566–9744. at 1–866–208–FERC or on the FERC Use EPA’s electronic docket and Internet Web site (http://www.ferc.gov) U.S.C. 3501, et seq.), this document announces that an Information comment system at using the ‘‘eLibrary’’ link. Click on the www.regulations.gov, to submit or view eLibrary link, click on ‘‘General Search’’ Collection Request (ICR) has been forwarded to the Office of Management public comments, access the index and enter the full docket number (i.e., listing of the contents of the docket, and CP07–191–001) in the docket number and Budget (OMB) for review and approval. This is a request to renew an to access those documents in the docket field. Be sure you have selected an existing approved collection. The ICR, that are available electronically. Once in appropriate date range. For assistance, which is abstracted below, describes the the system, select ‘‘docket search,’’ then please contact FERC Online Support at nature of information collection and its key in the docket ID number identified [email protected] or toll-free estimated burden and cost. above. Please note that EPA’s policy is at 1–866–208–3676, or for TTY, contact that public comments, whether DATES: Additional comments must be (202) 502–8659. The eLibrary link also submitted electronically or in paper, submitted on or before March 12, 2008. provides access to the texts of formal will be made available for public documents issued by the Commission, ADDRESSES: Submit your comments, viewing at www.regulations.gov as EPA such as orders, notices, and referencing Docket ID No. EPA–HQ– receives them and without change, rulemakings. OA–2007–0933, to (1) EPA online using unless the comment contains www.regulations.gov (our preferred copyrighted material, Confidential In addition, the Commission now method), by e-mail to Business Information (CBI), or other offers a free service called eSubscription [email protected], or by mail to: EPA information whose public disclosure is which allows you to keep track of all Docket Center, Environmental restricted by statute. For further formal issuances and submittals in Protection Agency, Office of information about the electronic docket, specific dockets. This can reduce the Environmental Information Docket go to www.regulations.gov. amount of time you spend researching (Mail Code 2822T), 1200 Pennsylvania Title: Confidential Financial proceedings by automatically providing Ave., NW., Washington, DC 20460, and Disclosure Form for Special you with notification of these filings, (2) OMB by mail to: Office of Government Employees Serving on document summaries and direct links to Information and Regulatory Affairs, Federal Advisory Committees at the the documents. Go to http:// Office of Management and Budget U.S. Environmental Protection Agency www.ferc.gov/esubscribenow.htm. (OMB), Attention: Desk Officer for EPA, (Renewal). 725 17th Street, NW., Washington, DC ICR numbers: EPA ICR No. 2260.02, Kimberly D. Bose, 20503. OMB Control No. 2090–0029. Secretary. ICR status: This ICR is currently FOR FURTHER INFORMATION CONTACT: scheduled to expire on 02/29/2008. [FR Doc. E8–2422 Filed 2–8–08; 8:45 am] Vicki Ellis, Office of Cooperative BILLING CODE 6717–01–P Under OMB regulations, the Agency Environmental Management, Mail Code may continue to conduct or sponsor the 1601M, Environmental Protection collection of information while this Agency, 1200 Pennsylvania Ave., NW., submission is pending at OMB. An Washington, DC 20460; telephone Agency may not conduct or sponsor, number: 202–564–1203; fax number: and a person is not required to respond 202–564–8129; e-mail address: to, a collection of information, unless it [email protected]. displays a currently valid OMB control SUPPLEMENTARY INFORMATION: EPA has number. The OMB control numbers for submitted the following ICR to OMB for EPA’s regulations in title 40 of the CFR, review and approval according to the after appearing in the Federal Register procedures prescribed in 5 CFR 1320.12. when approved, are listed in 40 CFR On November 27, 2007 (72 FR 66165), part 9, are displayed either by 4 Interventions may also be filed electronically via EPA sought comments on this ICR publication in the Federal Register or the Internet in lieu of paper. See the previous pursuant to CFR 1320.8(d). EPA by other appropriate means, such as on discussion on filing comments electronically. received one comment during the the related collection instrument or

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form, if applicable. The display of OMB Changes in the Estimates: There is an [email protected], Attention Docket control numbers in certain EPA increase of 24 hours in the total ID No. EPA–HQ–ORD–2007–1175. regulations is consolidated in 40 CFR estimated burden currently identified in • Fax: Fax comments to: (202) 566– part 9. the OMB Inventory of Approved ICR 0224, Attention Docket ID No. EPA– Abstract: The purpose of this Burdens. The burden estimates have HQ–ORD–2007–1175. been changed to reflect an expected information collection request is to • Mail: Send comments by mail to: increase of the number of respondents assist the United States Environmental Board of Scientific Counselors, Global (from 276 to 300), as well as an increase Protection Agency (EPA or the Agency) Change Research Program Mid-Cycle of respondents costs to complete the in selecting Federal advisory committee Subcommittee Meetings—Winter 2008 form, to cover the next 3 years. members who will be appointed as Docket, Mailcode: 28221T, 1200 Special Government Employees (SGEs), Dated: February 4, 2008. Pennsylvania Ave., NW., Washington, mostly to EPA’s scientific and technical Sara Hisel-McCoy, DC, 20460, Attention Docket ID No. committees. To select SGE members as Director, Collection Strategies Division. EPA–HQ–ORD–2007–1175. efficiently and cost effectively as [FR Doc. E8–2478 Filed 2–8–08; 8:45 am] • possible, the Agency needs to evaluate Hand Delivery or Courier. Deliver potential conflicts of interest before a BILLING CODE 6560–50–P comments to: EPA Docket Center (EPA/ candidate is hired as an SGE and DC), Room B102, EPA West Building, appointed as a member to a committee 1301 Constitution Avenue, NW., ENVIRONMENTAL PROTECTION Washington, DC., Attention Docket ID by EPA’s Administrator or Deputy AGENCY Administrator. Agency officials No. EPA–HQ–ORD–2007–1175. developed the ‘‘Confidential Financial [EPA–HQ–ORD–2007–1175; FRL–8527–6] Note: this is not a mailing address. Such Disclosure Form for Special deliveries are only accepted during the Government Employees Serving on Board of Scientific Counselors, Global docket’s normal hours of operation, and Federal Advisory Committees at the Change Research Program Mid-Cycle special arrangements should be made for U.S. Environmental Protection Agency,’’ Review Meetings—February and March deliveries of boxed information. 2008 also referred to as Form 3110–48, for a Instructions: Direct your comments to greater inclusion of information to AGENCY: Environmental Protection Docket ID No. EPA–HQ–ORD–2007– discover any potential conflicts of Agency (EPA). 1175. EPA’s policy is that all comments interest as recommended by the ACTION: Notice of meetings. received will be included in the public Government Accountability Office. docket without change and may be Burden Statement: The annual public SUMMARY: Pursuant to the Federal made available online at reporting and recordkeeping burden for Advisory Committee Act, Public Law www.regulations.gov, including any this collection of information is 92–463, the Environmental Protection personal information provided, unless estimated to average one hour per Agency, Office of Research and the comment includes information response. Burden means the total time, Development (ORD), gives notice of two claimed to be Confidential Business effort, or financial resources expended meetings of the Board of Scientific Information (CBI) or other information by persons to generate, maintain, retain, Counselors (BOSC) Global Mid-Cycle whose disclosure is restricted by statute. or disclose or provide information to or Subcommittee. Do not submit information that you for a Federal agency. This includes the DATES: The first meeting (a consider to be CBI or otherwise time needed to review instructions; teleconference call) will be held on protected through www.regulations.gov develop, acquire, install, and utilize Thursday, February 28, 2008, from or e-mail. The www.regulations.gov Web technology and systems for the purposes 10:30 a.m. to 12:30 p.m. The second site is an ‘‘anonymous access’’ system, of collecting, validating, and verifying meeting (a teleconference call) will be which means EPA will not know your information, processing and held on Tuesday, March 4, 2008, from identity or contact information unless maintaining information, and disclosing 1 p.m. to 3 p.m. The meetings may you provide it in the body of your and providing information; adjust the adjourn early if all business is finished. comment. If you send an e-mail existing ways to comply with any Requests for the draft agenda or for comment directly to EPA without going previously applicable instructions and making oral presentations at the through www.regulations.gov, your e- requirements which have subsequently meetings will be accepted up to 1 mail address will be automatically changed; train personnel to be able to business day before each meeting. captured and included as part of the respond to a collection of information; ADDRESSES: Participation in the comment that is placed in the public search data sources; complete and conference calls will be by docket and made available on the review the collection of information; teleconference only—meeting rooms Internet. If you submit an electronic and transmit or otherwise disclose the will not be used. Members of the public comment, EPA recommends that you information. may obtain the call-in number and include your name and other contact Respondents/Affected Entities: access code for the calls from Monica information in the body of your Candidates for membership as Special Rodia, whose contact information is comment and with any disk or CD–ROM Government Employees (SGEs) on EPA listed under the FOR FURTHER you submit. If EPA cannot read your federal advisory committees. INFORMATION CONTACT section of this comment due to technical difficulties Estimated total number of potential notice. Submit your comments, and cannot contact you for clarification, respondents: 300. identified by Docket ID No. EPA–HQ– EPA may not be able to consider your Frequency of response: Annual. ORD–2007–1175, by one of the comment. Electronic files should avoid Estimated total average number of following methods: the use of special characters, any form responses for each respondent: 1. • www.regulations.gov: Follow the of encryption, and be free of any defects Estimated total annual burden hours: on-line instructions for submitting or viruses. For additional information 300 hours. comments. about EPA’s public docket visit the EPA Estimated total annual costs: $33,000. • E-mail: Send comments by Docket Center homepage at http:// There are no capital or O&M costs. electronic mail (e-mail) to: www.epa.gov/epahome/dockets.htm.

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Docket: All documents in the docket least 10 days prior to the meeting, to DC 20554, or via the Internet to are listed in the www.regulations.gov give EPA as much time as possible to [email protected]. index. Although listed in the index, process your request. FOR FURTHER INFORMATION CONTACT: For some information is not publicly Dated: February 5, 2008. additional information about the available, e.g., CBI or other information Jeff Morris, information collection(s), contact Leslie whose disclosure is restricted by statute. Acting Director, Office of Science Policy. F. Smith via the Internet at [email protected] Certain other material, such as or call (202) 418–0217. copyrighted material, will be publicly [FR Doc. E8–2476 Filed 2–8–08; 8:45 am] SUPPLEMENTARY INFORMATION: available only in hard copy. Publicly BILLING CODE 6560–50–P OMB Control Number: 3060–0986. available docket materials are available Title: Competitive Carrier Line Count either electronically in Report. www.regulations.gov or in hard copy at FEDERAL COMMUNICATIONS Form Number: FCC Form 525. the Board of Scientific Counselors, COMMISSION Type of Review: Extension of a Global Change Research Program Mid- currently approved collection. Cycle Subcommittee Meetings—Winter Notice of Public Information Respondents: Business or other for- 2008 Docket, EPA/DC, EPA West, Room Collection(s) Being Reviewed by the profit. B102, 1301 Constitution Ave., NW., Federal Communications Commission Number of Respondents and Washington, DC. The Public Reading for Extension Under Delegated Responses: 1,300 respondents; 4,753 Room is open from 8:30 a.m. to 4:30 Authority, Comments Requested responses. p.m., Monday through Friday, excluding February 4, 2008. Estimated Time per Response: 0.5–6 legal holidays. The telephone number hours. SUMMARY: The Federal Communications for the Public Reading Room is (202) Obligation to Respond: Required to Commission, as part of its continuing 566–1744, and the telephone number for obtain or retain benefits. effort to reduce paperwork burden, the ORD Docket is (202) 566–1752. Frequency of Response: On occasion, invites the general public and other FOR FURTHER INFORMATION CONTACT: The quarterly and annual reporting Federal agencies to take this Designated Federal Officer via mail at: requirements; third party disclosure opportunity to comment on the Monica Rodia, Mail Drop 8104–R, Office requirement. following information collection(s), as of Science Policy, Office of Research Total Annual Burden: 3,707 hours. required by the Paperwork Reduction and Development, Environmental Total Annual Cost: $0.00. Protection Agency, 1300 Pennsylvania Act of 1995 (PRA), 44 U.S.C. 3501–3520. Privacy Act Impact Assessment: No Ave., NW., Washington, DC 20460; via An agency may not conduct or sponsor impacts. phone/voice mail at: (202) 564–8322; a collection of information unless it Nature of Extent of Confidentiality: via fax at: (202) 565–2925; or via e-mail displays a current valid control number. The Commission is not requesting that at: [email protected]. No person shall be subject to any the respondents submit confidential penalty for failing to comply with a SUPPLEMENTARY INFORMATION: information to the FCC. Respondents collection of information subject to the may, however, request confidential General Information PRA that does not display a valid treatment for information they believe to Any member of the public interested control number. Comments are be confidential under 47 CFR 0.459 of in receiving a draft BOSC agenda or requested concerning: (a) Whether the the Commission’s rules. making a presentation at any of the proposed collection of information is Needs and Uses: The Commission meetings may contact Monica Rodia, the necessary for the proper performance of will use the information requirements to Designated Federal Officer, via any of the functions of the Commission, determine whether and to what extent including whether the information shall the contact methods listed in the FOR rural telecommunications carriers and have practical utility; (b) the accuracy of FURTHER INFORMATION CONTACT section competitive eligible above. In general, each individual the Commission’s burden estimate; (c) telecommunications carriers (ETCs) making an oral presentation will be ways to enhance the quality, utility, and providing the data are eligible to receive limited to a total of three minutes. clarity of the information collected; and universal service support. This Proposed agenda items for the (d) ways to minimize the burden of the information includes loop counts, by meetings include, but are not limited to: collection of information on the disaggregation zone, for rural incumbent Teleconference #1: discussion of each of respondents, including the use of carriers, which is used to calculate the the submissions to the charge questions automated collection techniques or per-line high-cost universal service used to develop the draft report; other forms of information technology. support amount available to competitive Teleconference #2: a review of DATES: Written PRA comments should ETCs serving their territories. It also subsequent changes used to create the be submitted on or before April 11, includes loop counts, by disaggregation final draft, discussion of changes to the 2008. If you anticipate that you will be zone or unbundled network element final draft and approval of the report. submitting comments, but find it zone, for competitive ETCs, which is The meetings are open to the public. difficult to do so within the period of used to calculate the total high-cost The subcommittee roster and charge can time allowed by this notice, you should universal service support amount be accessed at: http://www.epa.gov/osp/ advise the contact listed below as soon available to competitive ETCs. This bosc/subcomm-gc_mid.htm. as possible. competitive ETC loop count Information on Services for ADDRESSES: You may submit all PRA requirement includes areas served by Individuals with Disabilities: For comments by e-mail or U.S. mail. To incumbent non-rural carriers, in information on access or services for submit your comments by e-mail, send addition to incumbent rural carriers, individuals with disabilities, please them to [email protected]. To submit your due to the consolidation of information contact Monica Rodia at (202) 564–8322 comments by U.S. mail, send them to collections included in a previous or [email protected]. To request Leslie F. Smith, Federal revision. Additionally, this information accommodation of a disability, please Communications Commission, Room 1– collection requires states to certify that contact Monica Rodia, preferably at C216, 445 12th Street, SW., Washington, incumbent rural carriers and

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competitive ETCs are using the high- will be from 8:30 a.m. to 5 p.m. The Human Development, University of cost universal service support only for February 29 session will be from 8:30 Illinois at Chicago; and Antronette the provision, maintenance, and a.m. to 1:15 p.m. Yancey, M.D., M.P.H., Professor, upgrading of facilities and services for ADDRESSES: The meeting will be held in Department of Health Services, which the support is intended. Finally, the Hubert Humphrey Building, Room University of California at Los Angeles this information collection includes cost 800, located at 200 Independence School of Public Health. data filed by incumbent rural carriers on Avenue, SW., Washington, DC 20201. Purpose of the Meeting: The Advisory an as-needed basis to establish FOR FURTHER INFORMATION CONTACT: Committee will present and discuss the eligibility for the safety net and safety CAPT Richard Troiano, PhD, Executive final report and their recommendations valve high-cost universal service Secretary, Physical Activity Guidelines to the Secretary. The report to the support mechanisms. Advisory Committee, Department of Secretary will outline the scientific background and rationale for the Federal Communications Commission. Health and Human Services, Office of Public Health and Science, Office of issuance of Physical Activity Guidelines Marlene H. Dortch, for Americans. The report will also Secretary. Disease Prevention and Health Promotion, Room LL–100, 1101 identify areas where further scientific [FR Doc. E8–2461 Filed 2–8–08; 8:45 am] Wootton Parkway, Rockville, MD 20852, research is needed. The Committee’s BILLING CODE 6712–01–P 240/453–8280 (telephone), 240/453– recommendations will be utilized by the 8281 (fax). Additional information is Department to prepare the final Physical available on the Internet at http:// Activity Guidelines. The intent is to DEPARTMENT OF HEALTH AND www.health.gov/PAguidelines. develop physical activity recommendations for all Americans that HUMAN SERVICES SUPPLEMENTARY INFORMATION: The will be tailored as necessary for specific Physical Activity Guidelines Advisory Announcement of the Third Meeting of subgroups of the population. The Committee: The thirteen-member the Physical Activity Guidelines Committee will also hear oral comments Committee is chaired by William Advisory Committee from the public. Haskell, PhD, Professor of Medicine, Public Participation at Meeting: AGENCY: Department of Health and Stanford University School of Medicine. Members of the public are invited to Human Services, Office of the Secretary, The Vice-Chair is Miriam Nelson, PhD, observe the Advisory Committee Office of Public Health and Science. Director, John Hancock Center for meeting. On February 29, a portion of ACTION: Notice. Physical Activity and Nutrition, the meeting agenda will be allocated for Friedman School of Nutrition Science committee members to hear public Authority: 42 U.S.C. 217a, section 222 of and Policy, Tufts University. Other comments. All individuals wishing to the Public Health Service Act, as amended. members of the Committee include Rod observe and/or make comments at the The Committee is governed by the provision K. Dishman, PhD, Professor of Exercise meeting must indicate their intention to of Public Law 92–463, as amended (5 U.S.C. Science and Director, Exercise do so by pre-registering at http:// Appendix 2), which sets forth standards for Psychology Laboratory, Department of www.health.gov/PAguidelines. Due to the formation and use of advisory Kinesiology, University of Georgia; time constraints, a limited number of committees. Edward Howley, PhD, Professor scheduled time slots for public SUMMARY: The U.S. Department of Emeritus, Department of Exercise, Sport, comments will be made available on a Health and Human Services (HHS) and Leisure Studies, University of first-come-first-served basis through pre- announces the final in a series of three Tennessee; Wendy Kohrt, PhD, registration. Comments will also be federal advisory committee meetings on Professor of Medicine, Division of limited to 1–2 minutes per individual. the Physical Activity Guidelines for Geriatric Medicine, University of Attendees that do not pre-register to Americans, to be held in Washington, Colorado at Denver and Health Sciences make comments cannot be guaranteed DC. This meeting will be open to the Center; William Kraus, M.D., Professor, an opportunity to have his or her public. The Physical Activity Division of Cardiovascular Medicine, comments heard during the meeting. Guidelines Advisory Committee has Duke University School of Medicine; I- Individuals are encouraged to submit been charged with reviewing existing Min Lee, M.D., Sc.D., Associate their comments in writing in advance of scientific literature to identify where Professor of Medicine, Harvard Medical the meeting through the pre-registration there is sufficient evidence to develop a School and Associate Professor of process. Additionally, individuals comprehensive set of specific physical Epidemiology, Harvard School of Public wishing to only submit written activity recommendations. The Health; Anne McTiernan, M.D., PhD, comments may also do so through pre- Committee will prepare a report to the Director, Prevention Center, Fred registration or by e-mail to Secretary of HHS that documents the Hutchinson Cancer Research Center; [email protected]. Please note scientific background and rationale for Russell Pate, PhD, Associate Vice there will be no public comment session the issuance of Physical Activity President for Health Sciences, Office of during the Advisory Committee meeting Guidelines for Americans. The report Research and Health Sciences and on February 28. Registrations must be will also identify areas where further Professor, Department of Exercise completed by February 22. Space for the scientific research is needed. The Science, University of South Carolina; meeting is limited and registrations will Committee’s recommendations will be Kenneth Powell, M.D., M.P.H., Public be accepted until maximum room utilized by the Department to prepare Health and Epidemiologic Consultant; capacity is reached. A waiting list will the final Physical Activity Guidelines. Judith Regensteiner, PhD, Professor be maintained should registrations The intent is to issue physical activity Department of Medicine and Director, exceed room capacity. Individuals on recommendations for all Americans that Center for Women’s Health Research, the waiting list will be contacted as will be tailored as necessary for specific University of Colorado at Denver and additional space for the meeting subgroups of the population. Health Sciences Center; James Rimmer, becomes available. DATES: The Committee will meet PhD, Professor and Director, National Registrants for the Physical Activity February 28–29, 2008 for a day and a Center on Physical Activity and Advisory Guidelines Committee half meeting. The February 28 session Disability, Department of Disability and meeting must present valid government-

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issued photo identification (i.e., driver’s DEPARTMENT OF HEALTH AND major goals of the project include license) and should arrive 45 minutes HUMAN SERVICES increasing the empirical knowledge prior to the start of the meeting to clear about the effectiveness of a variety of through security. Security will provide Administration for Children and programs for low-income families to registered attendees badges that must be Families sustain employment and advance to worn at all times and returned to positions that enable self-sufficiency, as Proposed Information Collection well as producing useful findings for security prior to exiting the Hubert Activity; Comment Request Humphrey Building. both policymakers and program administrators. Registration questions may be Title: Innovative Strategies for Increasing Self-Sufficiency (ISIS)— This proposed information collection directed to Experient at Intervention Strategy Assessment Guide. activity focuses on identifying [email protected] (e- OMB No.: New Collection. promising strategies to be tested as part mail), (703) 525–8333 x3346 (phone) or Description: The Administration for of the study. Through semi-structured (703) 525–8557 (fax). Children and Families (ACF), U.S. discussions, respondents will be asked Dated: February 5, 2008. Department of Health and Human to comment on the most important Penelope Slade Royall, Services (HHS), is proposing a data strategies and interventions for potential collection activity as part of the evaluation. RADM, USPHS, Deputy Assistant Secretary Innovative Strategies for Increasing Self- Respondents: Semi-structured for Health, Office of Disease Prevention and Health Promotion. Sufficiency (ISIS) demonstration and discussions will be held with evaluation. The ISIS project will test a administrators or staff of State agencies, [FR Doc. E8–2453 Filed 2–8–08; 8:45 am] range of promising strategies to promote local agencies, and programs with BILLING CODE 4150–32–P employment, self-sufficiency, and responsibility for employment-related reduce dependence on cash welfare. services or activities for welfare and The ISIS project will evaluate multiple other low-income families; researchers employment-focused strategies that in the field of welfare policy, poverty, build on previous approaches and are economic self-sufficiency, and low-wage adapted to the current Federal, State, labor markets; and policymakers at and local policy environment. The various levels of government.

ANNUAL BURDEN ESTIMATES

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

Intervention Strategy Assessment Guide ...... 400 1 .5 200

Estimated Total Annual Burden the quality, utility, and clarity of the ACTION: Notice. Hours: 200. information to be collected; and (d) In compliance with the requirements ways to minimize the burden of the SUMMARY: The Food and Drug of Section 3506(c)(2)(A) of the collection of information on Administration (FDA) is announcing the Paperwork Reduction Act of 1995, the respondents, including through the use availability of a draft document entitled Administration for Children and of automated collection techniques or ‘‘Guidance for Industry: Validation of Families is soliciting public comment other forms of information technology. Growth-Based Rapid Microbiological on the specific aspects of the Consideration will be given to Methods for Sterility Testing of Cellular information collection described above. comments and suggestions submitted and Gene Therapy Products,’’ dated Copies of the proposed collection of within 60 days of this publication. February 2008. The draft guidance information can be obtained and document provides manufacturers of Dated: February 6, 2008. cellular and gene therapy products with comments may be forwarded by writing Brendan C. Kelly, to the Administration for Children and recommendations on the validation of Reports Clearance Officer. Families, Office of Administration for growth-based Rapid Microbiological Children and Families, Office of [FR Doc. 08–599 Filed 2–8–08; 8:45 am] Methods (RMMs) for sterility testing of Administration, Office of Information BILLING CODE 4184–01–M their products. This draft guidance Services, 370 L’Enfant Promenade, SW., addresses considerations for method Washington, DC 20447, Attn: ACF validation and determining equivalence DEPARTMENT OF HEALTH AND of an RMM to sterility assays. This draft Reports Clearance Officer. E-mail HUMAN SERVICES address: [email protected]. All guidance applies to somatic cellular therapy and gene therapy products. requests should be identified by the title Food and Drug Administration of the information collection. DATES: Although you can comment on The Department specifically requests [Docket No. FDA–2008–D–0055] any guidance at any time (see 21 CFR 10.115 (g)(5)), to ensure that the agency comments on (a) whether the proposed Draft Guidance for Industry: Validation collection of information is necessary considers your comment on this draft of Growth-Based Rapid guidance before it begins work on the for the paper performance of the Microbiological Methods for Sterility functions of the agency, including final version of the guidance, submit Testing of Cellular and Gene Therapy written or electronic comments on the whether the information shall have Products; Availability practical utility; (b) the accuracy of the draft guidance by May 12, 2008. agency’s estimate of the burden of the AGENCY: Food and Drug Administration, ADDRESSES: Submit written requests for proposed collection of information; (c) HHS. single copies of the draft guidance to the

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Office of Communication, Training, and detect microbiological surrogates. This Electronic submissions will be accepted Manufacturers Assistance (HFM–40), draft guidance focuses on RMMs with by FDA through FDMS only. Center for Biologics Evaluation and qualitative results (i.e., detection of IV. Electronic Access Research (CBER), Food and Drug microorganisms). If the RMM does not Administration, 1401 Rockville Pike, have the capability to speciate Persons with access to the Internet suite 200N, Rockville, MD 20852–1448. microorganisms, an additional method may obtain the draft guidance at either Send one self-addressed adhesive label for speciation will be needed for http://www.fda.gov/cber/guidelines.htm to assist the office in processing your investigation of detected contaminants. or http://www.fda.gov/ohrms/dockets/ requests. The draft guidance may also be Early discussions with product review default.htm. obtained by mail by calling CBER at 1– staff at CBER are encouraged for Dated: January 29, 2008. 800–835–4709 or 301–827–1800. See individuals intending to use or develop Jeffrey Shuren, an RMM at any time in the product the SUPPLEMENTARY INFORMATION section Assistant Commissioner for Policy. for electronic access to the draft lifecycle using growth-based, viability- [FR Doc. E8–2398 Filed 2–8–08; 8:45 am] guidance document. based, surrogate-based, or RMMs that Submit written comments on the draft provide quantitative results. BILLING CODE 4160–01–S guidance to the Division of Dockets The draft guidance is being issued Management (HFA–305), Food and Drug consistent with FDA’s good guidance practices regulation (21 CFR 10.115). DEPARTMENT OF HEALTH AND Administration, 5630 Fishers Lane, rm. HUMAN SERVICES 1061, Rockville, MD 20852. Submit The draft guidance, when finalized, will electronic comments to http:// represent FDA’s current thinking on this Food and Drug Administration www.regulations.gov. topic. It does not create or confer any rights for or on any person and does not FOR FURTHER INFORMATION CONTACT: Hemoglobin Based Oxygen Carriers: Paul operate to bind FDA or the public. An E. Levine, Jr. Center for Biologics Current Status and Future Directions; alternative approach may be used if Public Workshop Evaluation and Research (HFM–17), such approach satisfies the requirement Food and Drug Administration, 1401 of the applicable statutes and AGENCY: Food and Drug Administration, Rockville Pike, suite 200N,Rockville, regulations. HHS. MD 20852–1448, 301–827–6210. ACTION: Notice of public workshop. SUPPLEMENTARY INFORMATION: II. Paperwork Reduction Act of 1995 The Food and Drug Administration I. Background This draft guidance refers to previously approved collections of (FDA) is announcing a public workshop FDA is announcing the availability of information found in FDA Regulations. entitled: Hemoglobin Based Oxygen a draft document entitled ‘‘Guidance for These collections of information are Carriers: Current Status and Future Industry: Validation of Growth-Based subject to review by the Office of Directions. The purpose of the public Rapid Microbiological Methods for Management and Budget (OMB) under workshop is to discuss the safety of Sterility Testing of Cellular and Gene the Paperwork Reduction Act of 1995 hemoglobin-based oxygen carriers Therapy Products,’’ dated February (44 U.S.C. 3501–3520). The collections (HBOCs) as related to a variety of 2008. This draft guidance applies to of information to which this draft potential uses of these investigational somatic cellular therapy and gene guidance refers are covered by 21 CFR products. We are having this discussion therapy products. This draft guidance parts 601 (on BLAs) and 312 (on INDs), because clinical and nonclinical studies does not apply directly to human cells, and were approved under OMB Control of HBOCs, as either blood substitutes or tissues, and cellular and tissue products No. 0910–0338 and 0910–0014, as resuscitation fluids, have raised (HCT/Ps) which are regulated solely respectively. questions about the safety of these under section 361 of the Public Health products as a group. The public Service Act as described under 21 CFR III. Comments workshop will feature presentations and 1271.10, or HCT/Ps which are regulated The draft guidance is being roundtable discussions led by experts as medical devices under 21 CFR part distributed for comment purposes only from academic institutions, government, 820. Such products are not subject to and is not intended for implementation and industry. the sterility testing provision in § 610.12 at this time. Interested persons may Date and Time: The public workshop (21 CFR 610.12), or to the requirement submit to the Division of Dockets will be held on April 29, 2008, from in 21 CFR 610.9 to demonstrate that an Management (see ADDRESSES) written or 8:30 a.m. to 5 p.m. and April 30, 2008, alternative RMM is equivalent to the electronic comments regarding the draft from 8:30 a.m. to 5 p.m. sterility method specified in the guidance. Submit a single copy of Location: The public workshop will regulations. However, HCT/P and electronic comments or two paper be held at the Lister Hill Center device establishments seeking to copies of any mailed comments, except Auditorium, Building 38A, National validate an RMM may find these that individuals may submit one paper Institutes of Health, 8800 Rockville recommendations useful. copy. Comments are to be identified Pike, Bethesda, MD 20894. The principles of RMM validation with the docket number found in the Contact Person: Rhonda Dawson, described in this draft guidance apply brackets in the heading of this Center for Biologics Evaluation and only to growth-based RMMs. Growth- document. A copy of the draft guidance Research (HFM–302), Food and Drug based RMMs, like traditional methods of and received comments are available for Administration, 1401 Rockville Pike, detecting viable microorganisms as public examination in the Division of suite 200N, Rockville, MD 20852–1448, described in § 610.12, rely on the ability Dockets Management between 9 a.m. 301–827–6129, FAX: 301–827–2843, e- to recover and detect organisms from and 4 p.m., Monday through Friday. mail: [email protected]. the product and demonstrate their Please note that on January 15, 2008, Registration: Mail or fax your viability by multiplication in liquid the FDA Web site transitioned to the registration information (including media. The specific recommendations Federal Dockets Management System name, title, firm name, address, and in this document may not be applicable (FDMS). FDMS is a Government-wide, telephone and fax numbers) to the for non-growth-based RMMs which electronic docket management system. contact person by April 11, 2008. There

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is no registration fee for the public Dated: February 4, 2008. D of the Public Health Service Act. The workshop. Early registration is Jeffrey Shuren, ACICBL prepares an annual report recommended because seating is limited Assistant Commissioner for Policy. describing the activities conducted to 175 attendees. Registration on the day [FR Doc. E8–2397 Filed 2–8–08; 8:45 am] during the fiscal year, identifying of the public workshop will be provided BILLING CODE 4160–01–S findings and developing on a space available basis beginning at recommendations to enhance Title VII 7:30 a.m. Interdisciplinary, Community-Based If you need special accommodations DEPARTMENT OF HEALTH AND Training Grant Programs. The Annual Report is submitted to the Secretary of due to a disability, please contact HUMAN SERVICES the U.S. Department of Health and Rhonda Dawson at least 7 days in Health Resources and Services Human Services, and ranking members advance of the workshop. Administration of the Committee on Health, Education, SUPPLEMENTARY INFORMATION: FDA; the Labor and Pensions of the Senate, and Advisory Committee on National Heart, Lung, and Blood the Committee on Energy and Interdisciplinary, Community-Based Institute, National Institutes of Health; Commerce of the House of Linkages; Notice of Request for and the Department of Health and Representatives. Nominations Human Services’ Office of the Secretary The Department of Health and Human and Office of Public Health and Science AGENCY: Health Resources and Services Services is requesting a total of five (5) are co-sponsoring this public workshop. Administration, HHS. nominations for voting members of the The primary goal of the workshop is to ACTION: Notice. ACICBL from schools that have discuss what is known about the safety administered or are currently of HBOCs, and possible paths forward SUMMARY: The Health Resources and administering awards from the for development of these products. Services Administration (HRSA) is following programs: Allied Health—one Topics to be discussed on April 29, requesting nominations to fill five (5) (1) nominee, Geriatric Education and 2008, will include: (1) Introduction to upcoming vacancies on the Advisory Training Programs—one (1) nominee, the issues and unmet needs surrounding Committee on Interdisciplinary, and Health Education and Training HBOC development, (2) overview of the Community-Based Linkages (ACICBL). Centers (HETCs)—one (1) nominee. physiology and chemistry of Authority: 42 U.S.C. 294f, section 756 Nominations are also requested for two hemoglobin in HBOCs, (3) nitric oxide of the PHS Act, as amended. The (2) students, residents, and/or fellow Advisory Committee is governed by physiology and pathophysiology related representatives. provisions of Public Law (Pub. L.) 92– to HBOCs, (4) review of nonclinical 463, as amended (5 U.S.C. Appendix 2) The legislation governing this studies of HBOCs, (5) risk-benefit which sets forth standards for the Committee requires a fair balance of considerations in clinical trials of formation and use of advisory health professionals who represent the HBOCs, (6) proposed clinical committees. general population with regard to a indications for HBOCs, and (7) broad geographic distribution and an industry’s experience with HBOC DATES: The Agency must receive evenness of urban and rural areas, along clinical trials. Panel deliberations on the nominations on or before March 12, with professionals who are women and safety and efficacy of HBOCs in various 2008. minorities. As such, the pool of clinical settings and potential ADDRESSES: All nominations are to be appropriately qualified nominations mechanisms of effects on organs will be submitted by mail to Louis D. should reflect these requirements to the the main topics of discussion on April Coccodrilli, Designated Federal Official, degree possible. 30, 2008. We also will discuss future ACICBL, Bureau of Health Professions Interested individuals may nominate development pathways with a focus on (BHPr), HRSA, Parklawn Building, multiple qualified professionals for the use and development of animal Room 9–05, 5600 Fishers Lane; membership to the ACICBL to allow the models, biochemical redesign Rockville, MD 20857. Secretary a diverse listing of highly approaches, and alternative clinical FOR FURTHER INFORMATION CONTACT: qualified potential candidates. designs where benefit exceeds risk. Adriana Guerra, Public Health Fellow, Nominees willing to serve as members Please note that on January 15, 2008, Division of Medicine and Dentistry, by of the ACICBL should not have an the FDA Web site transitioned to the e-mail [email protected] or telephone, appearance of a conflict of interest that (301) 443–6194. Federal Dockets Management System would preclude their participation. (FDMS). FDMS is a Government-wide, SUPPLEMENTARY INFORMATION: Under the Potential candidates will be asked to electronic docket management system. authorities that established the ACICBL, provide detailed information concerning Electronic submissions will be accepted the Federal Advisory Committee Act of consultancies, research grants, or by FDA through FDMS only. October 6, 1972 (Pub. L. 92–463), and contracts to permit an evaluation of section 2119 of the Act, 42 U.S.C. 00aa– possible sources of conflicts of interest. Transcripts: Transcripts of the public 19, as added by Pub. L. 99–660 and In addition, a curriculum vitae and a workshop may be requested in writing amended, HRSA is requesting statement of interest will be required of from the Freedom of Information Office nominations for five (5) voting the nominee to support experience (HFI–35), Food and Drug members. working with Title VII Interdisciplinary, Administration, 5600 Fishers Lane, rm. The ACICBL provides advice and Community-Based Training Grant 6–30, Rockville, MD 20857, recommendations to the Secretary and Programs, expertise in the field, and approximately 15 working days after the to the Congress concerning policy, personal desire in participating on a public workshop at a cost of 10 cents program development and other matters National Advisory Committee. Qualified per page. A transcript of the public of significance related to candidates will be invited to serve a two workshop will be available on the interdisciplinary, community-based or three-year term. All nominations Internet at http://www.fda.gov/cber/ training grant programs authorized must be received no later than March minutes/workshop-min.htm. under sections 751–756, Title VII, Part 12, 2008.

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Dated: February 5, 2008. Dated: February 1, 2008. Agenda: To review and evaluate grant Alexandra Huttinger, Jennifer Spaeth, applications. Place: Bethesda Marriott, 5151 Pooks Hill Director, Office of Federal Advisory Acting Director, Division of Policy Review Road, Bethesda, MD 20814. Committee Policy. and Coordination. Contact Person: Yingying Li-Smerin, MD, [FR Doc. E8–2396 Filed 2–8–08; 8:45 am] [FR Doc. 08–581 Filed 2–8–08; 8:45 am] PhD, Scientific Review Administrator, BILLING CODE 4165–15–P BILLING CODE 4140–01–M Review Branch/DERA, National Heart, Lung, and Blood Institute, 6701 Rockledge Drive, Room 7184, Bethesda, MD 20892–7924, (301) DEPARTMENT OF HEALTH AND DEPARTMENT OF HEALTH AND 435–0277, [email protected]. HUMAN SERVICES HUMAN SERVICES Name of Committee: National Heart, Lung, and Blood Institute Special Emphasis Panel; National Institutes of Health National Institutes of Health Exploratory/Developmental Grants Phase II (R 33’s). National Cancer Institute; Notice of National Heart, Lung, and Blood Date: March 27–28, 2008. Closed Meeting Institute; Notice of Closed Meeting Time: 9 a.m. to 5 p.m. Agenda: To review and evaluate grant Pursuant to section 10(d) of the applications. Pursuant to section 10(d) of the Federal Advisory Committee Act, as Place: Holiday Inn Georgetown, 2101 Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice Wisconsin Avenue, NW., Washington, DC amended (5 U.S.C. Appendix 2), notice is hereby given of the following 20007. is hereby given of the following meeting meetings. Contact Person: Keith A. Mintzer, PhD, of the President’s Cancer Panel. The meetings will be closed to the Scientific Review Administrator, Review The meeting will be closed to the public in accordance with the Branch/DERA, National Heart, Lung, and Blood Institute, 6701 Rockledge Drive, Room public in accordance with the provisions set forth in sections 7186, Bethesda, MD 20892–7924, (301) 435– provisions set forth in section 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., 0280, [email protected]. 552b(c)(9)(B), Title 5 U.S.C., as as amended. The grant applications and (Catalogue of Federal Domestic Assistance amended, because the premature the discussions could disclose Program Nos. 93.233, National Center for disclosure of information and the confidential trade secrets or commercial Sleep Disorders Research; 93.837, Heart and discussions would be likely to property such as patentable material, Vascular Diseases Research; 93.838, Lung significantly frustrate implementation of and personal information concerning Diseases Research; 93.839, Blood Diseases recommendations. individuals associated with the grant and Resources Research, National Institutes of Health, HHS) Name of Committee: President’s Cancer applications, the disclosure of which Panel. would constitute a clearly unwarranted Dated: February 1, 2008. Date: March 5, 2008. invasion of personal privacy. Jennifer Spaeth, Time: 1 p.m. to 3 p.m. Name of Committee: National Heart, Lung, Director, Office of Federal Advisory Agenda: The panel will discuss the report and Blood Institute Special Emphasis Panel; Committee Policy. format and recommendations for the 2007– Biorepository and Limited Access Data Set [FR Doc. 08–586 Filed 2–8–08; 8:45 am] Information Coordinating Center. 2008 meeting series. BILLING CODE 4140–01–M Place: National Cancer Institute, Office of Date: March 3, 2008. the Director, National Institutes of Health, Time: 8 a.m. to 12 p.m. Agenda: To review and evaluate contract 6116 Executive Blvd., Suite 212, Bethesda, DEPARTMENT OF HEALTH AND MD 20892. (Teleconference.) proposals. Place: Hilton Washington Dulles Airport HUMAN SERVICES Contact Person: Abby Sandler, PhD, Hotel, 13869 Park Center Road, Herndon, VA Executive Secretary, National Cancer 20171. National Institutes of Health Institute, National Institutes of Health, 6116 Contact Person: David A. Wilson, PhD, Executive Blvd., Suite 212, Bethesda, MD Scientific Review Administrator, Review National Institute of Allergy and 20892, 301–451–9399. Branch/DERA, National Heart, Lung, and Infectious Diseases; Notice of Closed Any interested person may file written Blood Institute, 6701 Rockledge Drive, Room Meeting comments with the committee by forwarding 7204, Bethesda, MD 20892–7924, (301) 435– the comments to the Contact Person listed on 0299, [email protected]. Pursuant to section 10(d) of the this notice. The comments should include Name of Committee: National Heart, Lung, Federal Advisory Committee Act, as the name, address, telephone number and, and Blood Institute Special Emphasis Panel; amended (5 U.S.C. Appendix 2), notice when applicable, the business or professional Mentored Clinical Scientist Research Career is hereby given of the following affiliation of the interested person. Development Awards. meeting. Information is also available on the Date: March 13–14, 2008. The meeting will be closed to the Time: 8 a.m. to 5 p.m. Institute’s/Center’s home page: public in accordance with the deainfo.nci.nih.gov/advisory/pcp/pcp.htm, Agenda: To review and evaluate grant applications. provisions set forth in sections where an agenda and any additional 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., information for the meeting will be posted Place: Crystal City Marriott, 1999 Jefferson as amended. The grant applications and when available. Davis Highway, Arlington, VA 22202. Contact Person: Rina Das, PhD, Scientific the discussions could disclose (Catalogue of Federal Domestic Assistance Review Administrator, Review Branch/ confidential trade secrets or commercial Program Nos. 93.392, Cancer Construction; DERA, National Heart, Lung, and Blood property such as patentable material, 93.393, Cancer Cause and Prevention Institute, 6701 Rockledge Drive, Room 7200 and personal information concerning Research; 93.394, Cancer Detection and Bethesda, MD 20892–7924, (301) 435–0297, individuals associated with the grant Diagnosis Research; 93.395, Cancer [email protected]. Treatment Research; 93.396, Cancer Biology applications, the disclosure of which Name of Committee: National Heart, Lung, would constitute a clearly unwarranted Research; 93.397, Cancer Centers Support; and Blood Institute Special Emphasis Panel; 93.398, Cancer Research Manpower; 93.399, Ancillary Studies in Clinical Trials. invasion of personal privacy. Cancer Control, National Institutes of Health, Date: March 25, 2008. Name of Committee: National Institute of HHS) Time: 8 a.m. to 5 p.m. Allergy and Infectious Diseases Special

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Emphasis Panel; The Immune Response to Activities, NIAID/NIH/DHHS, Room 3129, Dated: February 4, 2008. Viral Infections in Lymph Nodes. 6700 B Rockledge Drive, Bethesda, MD Jennifer Spaeth, Date: March 6, 2008. 20892, 301–435–3564, [email protected]. Time: 12 p.m. to 4 p.m. Director, Office of Federal Advisory (Catalogue of Federal Domestic Assistance Agenda: To review and evaluate grant Committee Policy. applications. Program Nos. 93.855, Allergy, Immunology, [FR Doc. 08–580 Filed 2–8–08; 8:45 am] and Transplantation Research; 93.856, Place: National Institutes of Health, BILLING CODE 4140–01–M Rockledge 6700, 6700B Rockledge Drive, Microbiology and Infectious Diseases Room 3127, Bethesda, MD 20817, (Telephone Research, National Institutes of Health, HHS) Conference Call). Dated: February 4, 2008. DEPARTMENT OF HEALTH AND Contact Person: Erica L. Brown, PhD, Scientific Review Officer, Scientific Review Jennifer Spaeth, HUMAN SERVICES Program, Division of Extramural Activities, Director, Office of Federal Advisory National Institutes of Health/NIAID, 6700B Committee Policy. National Institutes of Health Rockledge Drive, MSC 7616, Bethesda, MD [FR Doc. 08–579 Filed 2–8–08; 8:45 am] 20892–7616, 301–451–2639, National Institute of General Medical [email protected]. BILLING CODE 4140–01–M Sciences Notice of Closed Meeting (Catalogue of Federal Domestic Assistance Program Nos. 93.855, Allergy, Immunology, Pursuant to section 10(d) of the and Transplantation Research; 93.856, DEPARTMENT OF HEALTH AND Federal Advisory Committee Act, as Microbiology and Infectious Diseases HUMAN SERVICES amended (5 U.S.C. Appendix 2), notice Research, National Institutes of Health, HHS) National Institutes of Health is hereby given of the following Dated: February 4, 2008. meeting. Jennifer Spaeth, National Institute of Dental and The meeting will be closed to the Director, Office of Federal Advisory Craniofacial Research; Notice of public in accordance with the Committee Policy. Closed Meeting provisions set forth in sections [FR Doc. 08–578 Filed 2–8–08; 8:45 am] 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., BILLING CODE 4140–01–M Pursuant to section 10(d) of the as amended. The grant applications and Federal Advisory Committee Act, as the discussions could disclose amended (5 U.S.C. Appendix 2), notice DEPARTMENT OF HEALTH AND confidential trade secrets or commercial is hereby given of the following HUMAN SERVICES property such as patentable material, meeting. and personal information concerning National Institutes of Health The meeting will be closed to the individuals associated with the grant public in accordance with the applications, the disclosure of which National Institute of Allergy and provisions set forth in sections would constitute a clearly unwarranted Infectious Diseases; Notice of Closed 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., invasion of personal privacy. Meeting as amended. The grant applications and Name of Committee: Minority Programs Pursuant to section 10(d) of the the discussions could disclose Review Committee, MBRS Review Federal Advisory Committee Act, as confidential trade secrets or commercial Subcommittee B. amended (5 U.S.C. Appendix 2), notice property such as patentable material, Date: March 13, 2008. is hereby given of the following and personal information concerning Time: 8 a.m. to 5 p.m. meeting. individuals associated with the grant Agenda: To review and evaluate grant The meeting will be closed to the applications, the disclosure of which applications. public in accordance with the would constitute a clearly unwarranted Place: Residence Inn Bethesda, 7335 provisions set forth in sections invasion of personal privacy. Wisconsin Avenue, Bethesda, MD 20814. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Contact Person: John J. Laffan, PhD, as amended. The grant applications and Name of Committee: National Institute of Scientific Review Administrator, Office of the discussions could disclose Dental and Craniofacial Research Special Scientific Review, National Institute of confidential trade secrets or commercial Emphasis Panel, Review R03, R21, F30 General Medical Sciences, National Institutes property such as patentable material, Applications. of Health, Natcher Building, Room 3AN18J, and personal information concerning Date: March 6, 2008. Bethesda, MD 20892, 301–594–2773, individuals associated with the grant Time: 11:30 a.m. to 1:30 p.m. [email protected]. Agenda: To review and evaluate grant applications, the disclosure of which (Catalogue of Federal Domestic Assistance applications. would constitute a clearly unwarranted Program Nos. 93.375, Minority Biomedical Place: National Institutes of Health, One invasion of personal privacy. Research Support; 93.821, Cell Biology and Democracy Plaza, 6701 Democracy Biophysics Research; 93.859, Pharmacology, Name of Committee: National Institute of Boulevard, Room 674, Bethesda, MD 20892. Physiology, and Biological Chemistry Allergy and Infectious Diseases Special (Telephone Conference Call.) Research; 93.862, Genetics and Emphasis Panel; ‘‘Biodefense and Emerging Contact Person: Raj K. Krishnaraju, PhD, Infectious Diseases Research Opportunities’’. Developmental Biology Research; 93.88, MS, Scientific Review Officer, Scientific Date: March 5, 2008. Minority Access to Research Careers; 93.96, Review Branch, National Inst of Dental & Time: 12 p.m. to 3 p.m. Special Minority Initiatives, National Craniofacial Research, National Institutes of Agenda: To review and evaluate grant Institutes of Health, HHS) applications. Health, 45 Center Dr., Rm 4AN 32J, Bethesda, Place: National Institutes of Health, MD 20892, 301–594–4864, Dated: February 1, 2008. Rockledge 6700, 6700B Rockledge Drive, [email protected]. Jennifer Spaeth, Room #3129, Bethesda, MD 20817, (Catalogue of Federal Domestic Assistance Director, Office of Federal Advisory (Telephone Conference Call). Program Nos. 93.121, Oral Diseases and Committee Policy. Contact Person: Eleazar Cohen, PhD, Disorders Research, National Institutes of Scientific Review Administrator, Scientific [FR Doc. 08–582 Filed 2–8–08; 8:45 am] Health, HHS) Review Program, Division of Extramural BILLING CODE 4140–01–M

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DEPARTMENT OF HEALTH AND National Institutes of Health, Natcher Agenda: To review and evaluate grant HUMAN SERVICES Building, Room 3AN12F, Bethesda, MD applications. 20892, (301) 594–2881, Place: Residence Inn Bethesda, 7335 National Institutes of Health [email protected]. Wisconsin Avenue, Bethesda, MD 20817. Name of Committee: National Institute of Contact Person: Carole H. Latker, PhD, National Institute of General Medical General Medical Sciences Special Emphasis Scientific Review Administrator, Office of Sciences; Notice of Closed Meetings Panel, Collaborative Studies on Systems Scientific Review, National Institute of Biology of Complex Phenotypes. General Medical Sciences, National Institutes Pursuant to section 10(d) of the Date: March 13, 2008. of Health, Natcher Building, Room 3AN18, Federal Advisory Committee Act, as Time: 8 a.m. to 5 p.m. Bethesda, MD 20892, (301) 594–2848, amended (5 U.S.C. Appendix 2), notice Agenda: To review and evaluate grant [email protected]. is hereby given of the following applications. (Catalogue of Federal Domestic Assistance meetings. Place: Hilton Hotel, 1750 Rockville Pike, Program Nos. 93.375, Minority Biomedical The meetings will be closed to the Rockville, MD 20852. Research Support; 93.821, Cell Biology and Biophysics Research; 93.859, Pharmacology, public in accordance with the Contact Person: Arthur L. Zachary, PhD, Scientific Review Administrator, Office of Physiology, and Biological Chemistry provisions set forth in sections Scientific Review, National Institute of Research; 93.862, Genetics and 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., General Medical Sciences, National Institutes Developmental Biology Research; 93.88, as amended. The grant applications and of Health, Natcher Building, Room 3AN–12, Minority Access to Research Careers; 93.96, the discussions could disclose Bethesda, MD 20892, (301) 594–2886, Special Minority Initiatives, National confidential trade secrets or commercial [email protected]. Institutes of Health, HHS) property such as patentable material, (Catalogue of Federal Domestic Assistance Dated: February 1, 2008. and personal information concerning Program Nos. 93.375, Minority Biomedical Jennifer Spaeth, Research Support; 93.821, Cell Biology and individuals associated with the grant Director, Office of Federal Advisory Biophysics Research; 93.859, Pharmacology, applications, the disclosure of which Committee Policy. Physiology, and Biological Chemistry would constitute a clearly unwarranted [FR Doc. 08–584 Filed 2–8–08; 8:45 am] invasion of personal privacy. Research; 93.862, Genetics and Developmental Biology Research; 93.88, BILLING CODE 4140–01–M Name of Committee: National Institute of Minority Access to Research Careers; 93.96, General Medical Sciences Special Emphasis Special Minority Initiatives, National Panel, Competitive Research (Score) Grant Institutes of Health, HHS) DEPARTMENT OF HEALTH AND Applications. Dated: February 1, 2008. HUMAN SERVICES Date: March 3, 2008. Time: 8 a.m. to 5 p.m. Jennifer Spaeth, National Institutes of Health Agenda: To review and evaluate grant Director, Office of Federal Advisory applications. Committee Policy. National Institute of Allergy and Place: Residence Inn Bethesda, 7335 [FR Doc. 08–583 Filed 2–8–08; 8:45 am] Infectious Diseases; Notice of Closed Wisconsin Avenue, Bethesda, MD 20814. BILLING CODE 4140–01–M Meeting Contact Person: Arthur L. Zachary, PhD, Office of Scientific Review, National Institute Pursuant to section 10(d) of the of General Medical Sciences, National DEPARTMENT OF HEALTH AND Federal Advisory Committee Act, as Institutes of Health, Natcher Building, Room amended (5 U.S.C. Appendix 2), notice 3AN–12, Bethesda, MD 20892, (301) 594– HUMAN SERVICES 2886, [email protected]. is hereby given of the following National Institutes of Health meeting. Name of Committee: National Institute of The meeting will be closed to the General Medical Sciences Special Emphasis National Institute of General Medical Panel, Minority Biomedical Research public in accordance with the Support in Behavior. Sciences; Notice of Closed Meeting provisions set forth in sections Date: March 3, 2008. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Time: 8:30 a.m. to 5 p.m. Pursuant to section 10(d) of the as amended. The contract proposals and Agenda: To review and evaluate grant Federal Advisory Committee Act, as the discussions could disclose applications. amended (5 U.S.C. Appendix 2), notice confidential trade secrets or commercial Place: Double Tree Hotel and Executive is hereby given of the following property such as patentable material, Meeting Center, 8120 Wisconsin Avenue, meeting. and personal information concerning Bethesda, MD 20814. The meeting will be closed to the individuals associated with the contract Contact Person: Rebecca H. Johnson, PhD, Office of Scientific Review, National Institute public in accordance with the proposals, the disclosure of which of General Medical Sciences, National provisions set forth in sections would constitute a clearly unwarranted Institutes of Health, Natcher Building, Room 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., invasion of personal privacy. 3AN18C, Bethesda, MD 20892, (301) 594– as amended. The grant applications and Name of Committee: National Institute of 2771, [email protected]. the discussions could disclose Allergy and Infectious Diseases Special Name of Committee: National Institute of confidential trade secrets or commercial Emphasis Panel; NIAID DMID Clinical General Medical Sciences Special Emphasis property such as patentable material, Proteomics Centers for Infectious Diseases Panel, Minority Biomedical Research and personal information concerning and Biodefense. Support in Chemistry. individuals associated with the grant Date: March 3–4, 2008. Date: March 11–12, 2008. applications, the disclosure of which Time: 8 a.m. to 5 p.m. Time: 8:30 a.m. to 5 p.m. would constitute a clearly unwarranted Agenda: To review and evaluate contract Agenda: To review and evaluate grant proposals. applications. invasion of personal privacy. Place: Gaithersburg Marriott Place: The Legacy Hotel and Meeting Name of Committee: National Institute of Washingtonian Center, 9751 Washingtonian Center, 1775 Rockville Pike, Rockville, MD General Medical Sciences Initial Review Boulevard, Gaithersburg, MD 20878. 20852. Group; Biomedical Research and Research Contact Person: Alec Ritchie, PhD, Contact Person: Helen R. Sunshine, PhD, Training Review Subcommittee A. Scientific Review Officer, Scientific Review Chief, Office of Scientific Review, National Date: March 6, 2008. Program, Division of Extramural Activities, Institute of General Medical Sciences, Time: 8 a.m. to 5 p.m. National Institutes of Health/NIAID/DHHS,

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6700 B Rockledge Drive, MSC 7616, Applied Toxicological Research and Testing, NW., Suite 1500N, Washington, DC Bethesda, MD 20892–7616, 301–435–1614, National Institutes of Health, HHS) 20229, 202–344–1060. [email protected]. Dated: January 31, 2008. Dated: January 31, 2008. (Catalogue of Federal Domestic Assistance Jennifer Spaeth, Program Nos. 93.855, Allergy, Immunology, Ira S. Reese, and Transplantation Research; 93.856, Director, Office of Federal Advisory Executive Director, Laboratories and Microbiology and Infectious Diseases Committee Policy. Scientific Services. Research, National Institutes of Health, HHS) [FR Doc. 08–587 Filed 2–8–08; 8:45 am] [FR Doc. E8–2432 Filed 2–8–08; 8:45 am] BILLING CODE 4140–01–M Dated: February, 1, 2008. BILLING CODE 9111–14–P Jennifer Spaeth, Director, Office of Federal Advisory Committee Policy. DEPARTMENT OF HOMELAND DEPARTMENT OF HOMELAND SECURITY [FR Doc. 08–585 Filed 2–8–08; 8:45 am] SECURITY BILLING CODE 4140–01–M U.S. Customs and Border Protection Bureau of Customs and Border Protection Accreditation and Approval of DEPARTMENT OF HEALTH AND Inspectorate America Corporation, as a Notice of Issuance of Final HUMAN SERVICES Commercial Gauger and Laboratory Determination Concerning Military- Grade Flashlight and Replacement Part National Institutes of Health AGENCY: U.S. Customs and Border Protection, Department of Homeland AGENCY: U.S. Customs and Border National Institute of Environmental Security. Protection, Department of Homeland Health Sciences; Notice of Closed ACTION: Notice of accreditation and Security. Meeting approval of Inspectorate America ACTION: Notice of final determination. Pursuant to section 10(d) of the Corporation, as a commercial gauger Federal Advisory Committee Act, as and laboratory. SUMMARY: This document provides notice that the Bureau of Customs and amended (5 U.S.C. Appendix 2), notice SUMMARY: Notice is hereby given that, Border Protection (CBP) has issued a is hereby given of the following pursuant to 19 CFR 151.12 and 19 CFR final determination concerning the meetings. 151.13, Inspectorate America country of origin of certain military- The meeting will be closed to the Corporation, 2 Williams Street, Chelsea, grade flashlights and their replacement public in accordance with the MA 02150, has been approved to gauge parts to be offered to the United States provisions set forth in sections and accredited to test petroleum and Government under an undesignated 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., petroleum products, organic chemicals government procurement contract. as amended. The grant applications and and vegetable oils for customs purposes, the discussions could disclose in accordance with the provisions of 19 Based on the facts presented, the final confidential trade secrets or commercial CFR 151.12 and 19 CFR 151.13. Anyone determination found that the United property such as patentable material, wishing to employ this entity to conduct States is the country of origin of both and personal information concerning laboratory analyses and gauger services the subject flashlights and their individuals associated with the grant should request and receive written replacement parts for purposes of U.S. applications, the disclosure of which assurances from the entity that it is Government procurement. would constitute a clearly unwarranted accredited or approved by the U.S. DATES: The final determination was invasion of personal privacy. Customs and Border Protection to issued on February 5, 2008. A copy of Name of Committee: National Institute of conduct the specific test or gauger the final determination is attached. Any Environmental Health Sciences Special service requested. Alternatively, party-at-interest, as defined in 19 CFR Emphasis Panel; Outstanding New inquiries regarding the specific test or 177.22(d), may seek judicial review of Environmental Scientist Award. gauger service this entity is accredited this final determination within 30 days Date: March 6–7, 2008. or approved to perform may be directed of February 11, 2008. Time: 8 a.m. to 5 p.m. Agenda: To review and evaluate grant to the U.S. Customs and Border FOR FURTHER INFORMATION CONTACT: applications. Protection by calling (202) 344–1060. Holly Files, Valuation and Special Place: The Radisson Governor’s Inn, I–40 The inquiry may also be sent to Programs Branch, Regulations and at Davis Drive, Exit 280, Research Triangle [email protected]. Please reference the Rulings, Office of International Trade Park, NC 27709. Web site listed below for a complete (202–572–8740). Contact Person: Janice B. Allen, PhD, listing of CBP approved gaugers and SUPPLEMENTARY INFORMATION: Notice is Scientific Review Administrator, Scientific accredited laboratories. http://cbp.gov/ hereby given that on February 5, 2008, Review Branch, Division of Extramural _ xp/cgov/import/operations support/ pursuant to subpart B of part 177, Research and Training, Nat. Institute of _ _ labs scientific svcs/ Customs Regulations (19 CFR part 177, Environmental Health Science, P.O. Box _ 12233, MD EC–30/Room 3170 B, Research commercial gaugers/. subpart B), CBP issued a final Triangle Park, NC 27709, 919/541–7556. DATES: The accreditation and approval determination concerning the country of (Catalogue of Federal Domestic Assistance of Inspectorate America Corporation, as origin of certain military-grade Program Nos. 93.115, Biometry and Risk commercial gauger and laboratory flashlights and their replacement parts Estimation—Health Risks from became effective on July 24, 2007. The to be offered to the United States Environmental Exposures; 93.142, NIEHS next triennial inspection date will be Government under an undesignated Hazardous Waste Worker Health and Safety scheduled for July 2010. government procurement contract. The Training; 93.143, NIEHS Superfund FOR FURTHER INFORMATION CONTACT: Hazardous Substances—Basic Research and CBP ruling number is H017620. This Education; 93.894, Resources and Manpower Commercial Gauger Laboratory Program final determination was issued at the Development in the Environmental Health Manager, Laboratories and Scientific request of Energizer Battery, Inc. under Sciences; 93.113, Biological Response to Services, U.S. Customs and Border procedures set forth at 19 CFR part 177, Environmental Health Hazards; 93.114, Protection, 1300 Pennsylvania Avenue, subpart B, which implements Title III of

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the Trade Agreements Act of 1979, as note that Energizer is a party-at-interest Assembly of the Flashlight amended (19 U.S.C. 2511–18). within the meaning of 19 CFR 1. If the lens head subassembly The final determination concluded 177.22(d)(1) and is entitled to request described above will be incorporated that, based upon the facts presented, this final determination. Confidential into a finished flashlight, its wires are assembly in the United States of various treatment for certain business routed through a foreign-origin plastic foreign-origin components with a U.S.- information identified in your request body or case to corresponding battery origin light emitting diode (LED) for a final determination will be contacts. substantially transforms both the subject extended in accordance with your 2. Foreign-origin gaskets are attached flashlight and its replacement part into request. Photographs of the flashlight for weatherproofing. products of the United States. Therefore, and the replacement part, at various 3. The second half of the body or case the country of origin of both the stages of manufacture, were submitted is attached with six screws. military-grade flashlight and the with your request. 4. Final testing is performed, which replacement part is the United States for Facts includes the use of devices capable of purposes of U.S. Government perceiving infrared light. procurement. You advise that Energizer intends to You explain that all final products Section 177.29, Customs Regulations sell the subject flashlight to consumers undergo testing of their white, red, blue (19 CFR 177.29), provides that notice of and to the U.S. military. A and infrared lights by the use of an final determinations shall be published subcomponent of the flashlight, the lens infrared detection device. in the Federal Register within 60 days head subassembly, may be sold Manufacturing and inspection staff at of the date the final determination is separately as a replacement part for the the Vermont facility will use issued. Section 177.30, CBP Regulations subject flashlights. You indicate that the troubleshooting skills to identify and, if (19 CFR 177.30), states that any party- flashlight has many features that render possible, correct any mechanical or at-interest, as defined in 19 CFR it suitable for military use. The electronic deficiencies revealed by the 177.22(d), may seek judicial review of a flashlight provides long-lasting light testing. In addition, you state that final determination within 30 days of emitting diode (‘‘LED’’) lighting and Energizer has expended significant publication of such determination in the infrared lighting, the latter of which is resources in connection with the design Federal Register. invisible to the naked eye. It has a exploration, development, detailing, heavy-duty design and can withstand Dated: February 5, 2008. and modeling of this product in the the impact of being dropped twenty or United States. Myles B. Harmon, more feet. In addition, it can also be Acting Executive Director, Office of clipped to a standard issue military vest. Issue Regulations and Rulings, Office of Both the subject military flashlight International Trade. What are the countries of origin of the and the replacement lens head flashlight and the replacement part for HQ H017620 subassembly are manufactured in the purposes of U.S. Government United States from U.S. and foreign- February 5, 2008. procurement? origin components. The following [MAR–02 OT:RR:CTF:VS H017620 HEF] operations occur within the United Law and Analysis Category: Marking. States: Pursuant to subpart B of part 177, Mr. Steven P. Sonnenberg, Sonnenberg Customs Regulations (19 CFR 177.21 et Assembly of Lens Head Subassembly & Anderson, 300 South Wacker Drive, seq.), which implements Title III of the 12th Floor, Chicago, Illinois 60606. 1. The LED is manufactured to Trade Agreements Act of 1979, as RE: U.S. Government Procurement; Energizer’s specifications by a third amended (‘‘TAA,’’ codified at 19 U.S.C. Final Determination; Country of party in the United States. 2511 et seq.), CBP issues country of 2. The LED is mounted to a foreign- origin of a flashlight and origin advisory rulings and final origin ‘‘hex board’’ by another third replacement part; 19 CFR. part 177 determinations on whether an article is party in the United States and shipped or would be a product of a designated Dear Mr. Sonnenberg: to an Energizer facility in Vermont. country or instrumentality for the This is in response to your letter 3. A foreign-origin, partially purpose of granting waivers of certain dated September 13, 2007, requesting a assembled half lens and separate ‘‘Buy American’’ restrictions in U.S. law final determination on behalf of printed circuit board (‘‘PCB’’) are or practice for products offered for sale Energizer Battery, Inc. (‘‘Energizer’’), imported to Energizer’s Vermont to the U.S. Government. pursuant to subpart B of part 177, facility. At the facility, the LED/hex Under the rule of origin set forth at 19 Customs and Border Protection (‘‘CBP’’) board subassembly is mounted to a heat U.S.C. 2518(4)(B): Regulations (19 CFR 177.21 et seq.). sink on the half lens with the use of two Under these regulations, which An article is a product of a country or small screws. instrumentality only if (i) it is wholly the implement Title III of the Trade 4. Wires are spot soldered to the Agreements Act of 1979, as amended growth, product, or manufacture of that positive and negative terminals of the country or instrumentality, or (ii) in the case (codified at 19 U.S.C. 2511 et seq.), CBP LED. of an article which consists in whole or in issues country of origin advisory rulings 5. The following foreign-origin part of materials from another country or and final determinations on whether an components are assembled together: a instrumentality, it has been substantially article is or would be a product of a lens reflector, lens, and rubber gasket. transformed into a new and different article designated country or instrumentality 6. The resulting subassembly from of commerce with a name, character, or use for the purpose of granting waivers of step 5 is attached to the LED and half distinct from that of the article or articles certain ‘‘Buy American’’ restrictions in lens to form the lens head subassembly from which it was so transformed. U.S. law or practice for products offered that will be used either in the flashlight See also, 19 CFR 177.22(a). for sale to the U.S. Government. or sold separately as a replacement part. In rendering advisory rulings and This final determination concerns the 7. The lens head subassembly’s final determinations for purposes of country of origin of a military-grade wiring, soldering, and physical U.S. Government procurement, CBP flashlight and replacement part. We connections are inspected. applies the provisions of subpart B of

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part 177 consistent with the Federal actual manufacturing process will be and the upper and lower housing Procurement Regulations. See 19 CFR considered when analyzing whether a assemblies to make the finished power 177.21. In this regard, CBP recognizes substantial transformation has occurred; failure light substantially transformed that the Federal Procurement however, no one such factor is the PCB. Regulations restrict the U.S. determinative. Based on the totality of the Government’s purchase of products to You assert that the U.S.-origin LED circumstances and consistent with the U.S.-made or designated country end imparts the essential character to the CBP rulings cited above, we find that products for acquisitions subject to the flashlight and the replacement lens head the various imported components TAA. See 48 CFR 25.403(c)(1). The subassembly. In addition to having a (individual parts and subassemblies) are Federal Procurement Regulations define high monetary value relative to the substantially transformed as a result of ‘‘U.S.-made end product’’ as: other components, it generates the the operations performed in the United * * * an article that is mined, produced, primary light in both products. The LED States to produce both the replacement or manufactured in the United States or that is manufactured to Energizer’s lens head subassembly and the finished is substantially transformed in the United specifications in order to provide flashlight. Under each manufacturing States into a new and different article of certain desirable characteristics scenario, the imported components lose commerce with a name, character, or use regarding the light’s color, intensity, their individual identities and become distinct from that of the article or articles durability, coverage, and efficiency. You an integral part of a new article from which it was transformed. also note that the foreign-origin reflector possessing a new name, character, and 48 CFR 25.003 is engineered to maximize these use. In support of this conclusion, we Therefore, the question presented in particular characteristics. agree that the U.S.-origin LED imparts this final determination is whether, as a You claim that as a result of the the essential character to both the result of the operations performed in the manufacturing, assembly, and testing replacement part and the finished United States, the flashlight and processes performed in the United product, as it generates the primary light replacement part are substantially States, the foreign-origin components of both products. We also recognize that transformed into products of the United undergo a substantial transformation Energizer has expended significant States. such that both the flashlight and the resources in connection with the design In determining whether the replacement lens head subassembly and development of the subject combining of parts or materials become products of the United States flashlight in the United States. constitutes a substantial transformation, for purposes of U.S. Government Moreover, the U.S.-origin LED and the the determinative issue is the extent of procurement. labor performed in the United States the operations performed and whether In Headquarters Ruling Letter during the assembly and testing the parts lose their identity and become (‘‘HRL’’) 563236, dated July 6, 2005, operations represent a majority of the an integral part of the new article. CBP examined whether multi-line costs associated with the production of Belcrest Linens v. United States, 6 Ct. telephone sets assembled in Mexico both the replacement lens head Int’l Trade 204, 573 F. Supp. 1149 from parts of Mexican and foreign origin subassembly and the finished flashlight. (1983), aff’d, 741 F.2d 1368 (Fed. Cir. were products of Mexico for purposes of 1984). If the manufacturing or U.S. Government procurement. Among Holding combining process is a minor one that the foreign components imported into Based upon the specific facts of this leaves the identity of the imported Mexico for the assembly of the case, we find that the imported article intact, a substantial telephone sets were printed circuit components of the flashlight and transformation has not occurred. assemblies (‘‘PCAs’’) from Malaysia. The replacement lens head subassembly are Uniroyal, Inc. v. United States, 3 Ct. handsets, liquid crystal displays, substantially transformed as a result of Int’l Trade 220, 542 F. Supp. 1026 microphone assemblies, and stands the described manufacturing operations (1982). Assembly operations that are incorporated into the telephones were of performed in the United States. The minimal or simple, as opposed to Mexican origin. In reaching a country of origin of the flashlight and complex or meaningful, generally will determination that the telephone sets the replacement lens head subassembly not result in a substantial were products of Mexico, CBP noted is the United States. transformation. See C.S.D. 80–111, that the telephone sets were comprised Sincerely, C.S.D. 85–25, C.S.D. 89–110, C.S.D. 89– of certain essential parts (such as the Myles B. Harmon, 118, C.S.D. 90–51, and C.S.D. 90–97. handsets) that were of Mexican origin. In order to determine whether a Acting Executive Director, Office of Moreover, many of the components Regulations and Rulings, Office of substantial transformation occurs when lacked any functionality prior to their International Trade. components of various origins are assembly within the telephone set. [FR Doc. E8–2429 Filed 2–8–08; 8:45 am] assembled to form completed articles, In HRL 962528, dated February 18, CBP considers the totality of the 2000, CBP considered the eligibility of BILLING CODE 9111–14–P circumstances and makes such a rechargeable power failure light for decisions on a case-by-case basis. The duty free treatment under the country of origin of the article’s Generalized System of Preferences. In DEPARTMENT OF HOUSING AND components, the extent of the that case, the power failure light was URBAN DEVELOPMENT processing that occurs within a given assembled in Thailand from various [Docket No. FR–5202–N–01] country, and whether such processing Thai and foreign origin components, renders a product with a new name, including a PCB assembled in Thailand. Mortgage and Loan Insurance character, and use are primary CBP found that the process of Programs Under the National Housing considerations in such cases. assembling various components into a Act—Debenture Interest Rates Additionally, facts such as resources PCB resulted in a substantial AGENCY: Office of the Assistant expended on product design and transformation of the imported Secretary for Housing—Federal Housing development, the extent and nature of components. Moreover, CBP found that Commissioner, HUD. post-assembly inspection procedures, the assembly of the PCB with a bulb ACTION: Notice. and the worker skill required during the holder assembly, a plug blade assembly,

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SUMMARY: This notice announces United States Treasury Securities Section 224 further provides that the changes in the interest rates to be paid adjusted to a constant maturity of 10 interest rate on these debentures will be on debentures issued with respect to a years. set from time to time by the Secretary loan or mortgage insured by the Federal FOR FURTHER INFORMATION CONTACT: of HUD, with the approval of the Housing Administration under the Yong Sun, Department of Housing and Secretary of the Treasury, in an amount provisions of the National Housing Act Urban Development, 451 Seventh Street, not in excess of the annual interest rate (the Act). The interest rate for SW., Room 5148, Washington, DC determined by the Secretary of the debentures issued under section 20410–8000; telephone (202) 402–4778 Treasury pursuant to a statutory formula 221(g)(4) of the Act during the 6-month (this is not a toll-free number). based on the average yield of all period beginning January 1, 2008, is 41⁄8 Individuals with speech or hearing outstanding marketable Treasury percent. The interest rate for debentures impairments may access this number obligations of maturities of 15 or more issued under any other provision of the through TTY by calling the toll-free years. Act is the rate in effect on the date that Federal Information Relay Service at The Secretary of the Treasury (1) has the commitment to insure the loan or (800) 877–8339. determined, in accordance with the mortgage was issued, or the date that the SUPPLEMENTARY INFORMATION: Section provisions of section 224, that the loan or mortgage was endorsed (or 224 of the National Housing Act (12 statutory maximum interest rate for the initially endorsed if there are two or U.S.C. 1715o) provides that debentures period beginning January 1, 2008, is 41⁄2 more endorsements) for insurance, issued under the Act with respect to an percent; and (2) has approved the whichever rate is higher. The interest insured loan or mortgage (except for establishment of the debenture interest rate for debentures issued under these debentures issued pursuant to section rate by the Secretary of HUD at 41⁄2 other provisions with respect to a loan 221(g)(4) of the Act) will bear interest at percent for the 6-month period or mortgage committed or endorsed the rate in effect on the date the beginning January 1, 2008. This interest during the 6-month period beginning commitment to insure the loan or rate will be the rate borne by debentures January 1, 2008, is 41⁄2 percent. mortgage was issued, or the date the issued with respect to any insured loan However, as a result of an amendment loan or mortgage was endorsed (or or mortgage (except for debentures to section 224 of the Act, if an insurance initially endorsed if there are two or issued pursuant to section 221(g)(4)) claim relating to a mortgage insured more endorsements) for insurance, with insurance commitment or under sections 203 or 234 of the Act and whichever rate is higher. This provision endorsement date (as applicable) within endorsed for insurance after January 23, is implemented in HUD’s regulations at the first 6 months of 2008. 2004, is paid in cash, the debenture 24 CFR 203.405, 203.479, 207.259(e)(6), For convenience of reference, HUD is interest rate for purposes of calculating and 220.830. These regulatory publishing the following chart of a claim shall be the monthly average provisions state that the applicable rates debenture interest rates applicable to yield, for the month in which the of interest will be published twice each mortgages committed or endorsed since default on the mortgage occurred, on year as a notice in the Federal Register. January 1, 1980:

Effective interest rate on or after prior to

91⁄2 ...... Jan. 1, 1980 ...... July 1, 1980 97⁄8 ...... July 1, 1980 ...... Jan. 1, 1981 113⁄4 ...... Jan. 1, 1981 ...... July 1, 1981 127⁄8 ...... July 1, 1981 ...... Jan. 1, 1982 123⁄4 ...... Jan. 1, 1982 ...... Jan. 1, 1983 101⁄4 ...... Jan. 1, 1983 ...... July 1, 1983 103⁄8 ...... July 1, 1983 ...... Jan. 1, 1984 111⁄2 ...... Jan. 1, 1984 ...... July 1, 1984 133⁄8 ...... July 1, 1984 ...... Jan. 1, 1985 115⁄8 ...... Jan. 1, 1985 ...... July 1, 1985 111⁄8 ...... July 1, 1985 ...... Jan. 1, 1986 101⁄4 ...... Jan. 1, 1986 ...... July 1, 1986 81⁄4 ...... July 1, 1986 ...... Jan. 1, 1987 8 ...... Jan. 1, 1987 ...... July 1, 1987 9 ...... July 1, 1987 ...... Jan. 1, 1988 91⁄8 ...... Jan. 1, 1988 ...... July 1, 1988 93⁄8 ...... July 1, 1988 ...... Jan. 1, 1989 91⁄4 ...... Jan. 1, 1989 ...... July 1, 1989 9 ...... July 1, 1989 ...... Jan. 1, 1990 81⁄8 ...... Jan. 1, 1990 ...... July 1, 1990 9 ...... July 1, 1990 ...... Jan. 1, 1991 83⁄4 ...... Jan. 1, 1991 ...... July 1, 1991 81⁄2 ...... July 1, 1991 ...... Jan. 1, 1992 8 ...... Jan. 1, 1992 ...... July 1, 1992 8 ...... July 1, 1992 ...... Jan. 1, 1993 73⁄4 ...... Jan. 1, 1993 ...... July 1, 1993 7 ...... July 1, 1993 ...... Jan. 1, 1994 65⁄8 ...... Jan. 1, 1994 ...... July 1, 1994 73⁄4 ...... July 1, 1994 ...... Jan. 1, 1995 83⁄8 ...... Jan. 1, 1995 ...... July 1, 1995 71⁄4 ...... July 1, 1995 ...... Jan. 1, 1996 61⁄2 ...... Jan. 1, 1996 ...... July 1, 1996 71⁄4 ...... July 1, 1996 ...... Jan. 1, 1997 63⁄4 ...... Jan. 1, 1997 ...... July 1, 1997 71⁄8 ...... July 1, 1997 ...... Jan. 1, 1998

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Effective interest rate on or after prior to

63⁄8 ...... Jan. 1, 1998 ...... July 1, 1998 61⁄8 ...... July 1, 1998 ...... Jan. 1, 1999 51⁄2 ...... Jan. 1, 1999 ...... July 1, 1999 61⁄8 ...... July 1, 1999 ...... Jan. 1, 2000 61⁄2 ...... Jan. 1, 2000 ...... July 1, 2000 61⁄2 ...... July 1, 2000 ...... Jan. 1, 2001 6 ...... Jan. 1, 2001 ...... July 1, 2001 57⁄8 ...... July 1, 2001 ...... Jan. 1, 2002 51⁄4 ...... Jan. 1, 2002 ...... July 1, 2002 53⁄4 ...... July 1, 2002 ...... Jan. 1, 2003 5 ...... Jan. 1, 2003 ...... July 1, 2003 41⁄2 ...... July 1, 2003 ...... Jan. 1, 2004 51⁄8 ...... Jan. 1, 2004 ...... July 1, 2004 51⁄2 ...... July 1, 2004 ...... Jan. 1, 2005 47⁄8 ...... Jan. 1, 2005 ...... July 1, 2005 41⁄2 ...... July 1, 2005 ...... Jan. 1, 2006 47⁄8 ...... Jan. 1, 2006 ...... July 1, 2006 53⁄8 ...... July 1, 2006 ...... Jan. 1, 2007 43⁄4 ...... Jan. 1, 2007 ...... July 1, 2007 5 ...... July 1, 2007 ...... Jan. 1, 2008 41⁄2 ...... Jan. 1, 2008 ...... July 1, 2008

Section 215 of Division G, Title II of period beginning January 1, 2008, is 41⁄8 has removed the Adobe application Pub. L. 108–199, enacted January 23, percent. from Grants.gov for this NOFA, 2004 (HUD’s 2004 Appropriations Act) HUD expects to publish its next extended the deadline date for amended section 224 of the Act, to notice of change in debenture interest submission of applications, and clarifies change the debenture interest rate for rates in July 2008. why the Adobe package has been purposes of calculating certain The subject matter of this notice falls removed. insurance claim payments made in cash. within the categorical exemption from DATES: The application deadline date for Therefore, for all claims paid in cash on HUD’s environmental clearance the Public Housing Neighborhood mortgages insured under section 203 or procedures set forth in 24 CFR Networks Program NOFA has been 234 of the National Housing Act and 50.19(c)(6). For that reason, no extended to March 14, 2008. environmental finding has been endorsed for insurance after January 23, FOR FURTHER INFORMATION CONTACT: prepared for this notice. 2004, the debenture interest rate will be Questions regarding this Technical the monthly average yield, for the (Authority: Sections 211, 221, 224, National Correction should be directed to the month in which the default on the Housing Act, 12 U.S.C. 1715b, 1715l, 1715o; Office of Departmental Grants mortgage occurred, on United States Section 7(d), Department of HUD Act, 42 Management and Oversight, Office of Treasury Securities adjusted to a U.S.C. 3535(d).) Administration, Department of Housing constant maturity of 10 years, as found Dated: February 1, 2008. and Urban Development, 451 Seventh in Federal Reserve Statistical Release H– Brian D. Montgomery, Street, SW., Room 3156, Washington, 15. The Federal Housing Administration Assistant Secretary for Housing—Federal DC 20410–5000; telephone number has codified this provision in HUD Housing Commissioner. (202) 708–0667. Persons with hearing or regulations at 24 CFR 203.405(b) and 24 [FR Doc. E8–2514 Filed 2–8–08; 8:45 am] speech impairments may access this CFR 203.479(b). BILLING CODE 4210–67–P number via TTY by calling the Federal Section 221(g)(4) of the Act provides Information Relay Service at (800) 877– that debentures issued pursuant to that 8339. paragraph (with respect to the DEPARTMENT OF HOUSING AND SUPPLEMENTARY INFORMATION: URBAN DEVELOPMENT assignment of an insured mortgage to I. Submission or Resubmission of the Secretary) will bear interest at the [Docket No. FR–5159–C–01] Applications with PureEdge ‘‘going Federal rate’’ in effect at the time the debentures are issued. The term Notice of Funding Availability for the On December 11, 2007 (72 FR 70458), HUD published its FY2007 NOFA for ‘‘going Federal rate’’ is defined to mean Fiscal Year 2007 Public Housing the Public Housing Neighborhood the interest rate that the Secretary of the Neighborhood Networks Program; Networks Program and posted it to Treasury determines, pursuant to a Technical Correction Grants.gov, making applications statutory formula based on the average AGENCY: Office of the Public and Indian available in both PureEdge and Adobe yield on all outstanding marketable Housing, HUD. 8.1.1 formats. HUD has recently Treasury obligations of 8-to 12-year ACTION: Technical Corrections to Fiscal determined that applications submitted maturities, for the 6-month periods of using the Adobe Application Package January through June and July through Year 2007 NOFA for the Public Housing Neighborhood Networks Program. posted to Grants.gov will cause December of each year. Section 221(g)(4) problems during submission if any is implemented in the HUD regulations SUMMARY: On December 11, 2007, HUD individuals working on the application at 24 CFR 221.255 and 24 CFR 221.790. published its Fiscal Year (FY) 2007 have not used Adobe 8.1.1 to complete The Secretary of the Treasury has Notice of Funding Availability (NOFA) the application. Specifically, if any determined that the interest rate to be for the Public Housing Neighborhood individual working on the application borne by debentures issued pursuant to Networks Program. In today’s Federal does not use Adobe 8.1.1, the section 221(g)(4) during the 6-month Register notice, HUD announces that it application becomes corrupt and not

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accepted by Grants.gov. To ensure there to HUD reviewers. HUD will not search E-mail: [email protected]; are no issues with applicants being able previously submitted applications for Phone: 202–513–7243; Fax: (202) 371– to successfully submit their application, faxed materials. 1751. HUD is withdrawing the Adobe Dated: February 5, 2008. SUPPLEMENTARY INFORMATION: application package (COMP ID NN–01) Paula Blunt, Executive Order 13112 on Invasive from the Grants.gov Web site but leaving Species (EO 13112) was issued in 1999 the PureEdge package in place. General Deputy Assistant Secretary for Public and Indian Housing. and established the National Invasive Applicants who have signed up for the Species Council (NISC) which is co- Grants.gov notification service will be [FR Doc. E8–2466 Filed 2–8–08; 8:45 am] BILLING CODE 4210–67–P chaired by the Secretaries of the automatically notified when the Adobe Interior, Agriculture and Commerce. EO package has been removed. Applicants 13112 directed the Secretary of the that have not signed up for the Interior to establish an Invasive Species notification service should check the DEPARTMENT OF THE INTERIOR Advisory Committee (ISAC) composed Grants.gov Web site at https:// of diverse nonfederal stakeholders to apply07.grants.gov/apply/ Office of the Secretary advise NISC. The broad mission of NISC forms_apps_idx.html for the is to provide planning, coordination and modification to the announcement Human Capital, Performance and national leadership to prevent and posting following publication of this Partnerships; National Invasive control the harmful impacts of invasive Notice. Applicants must use the Species Council species to the economy, the PureEdge package; Adobe packages will environment as well as animal and be rejected. Applicants can download AGENCY: Office of the Secretary, Interior. human health. the PureEdge version from the ACTION: Notice of Availability—Draft of Section 5 of EO 13112 directed NISC Grants.gov Web site at: https:// the 2008–2012 National Invasive to issue the National Invasive Species apply07.grants.gov/apply/ Species Management Plan; Extension of Management Plan, as well as to revise forms_apps_idx.html. Applicants who Public Comment Period. and update the Plan on a regular basis. were working with the PureEdge The first version of the National application (Comp ID: NN–PUREEDGE– SUMMARY: Pursuant to Executive Order Invasive Species Management Plan, FORMAT) do not have to download 13112, the National Invasive Species again. Only those working with the ‘‘Meeting the Challenge’’, was issued in Council (NISC) is announcing a 30-day January of 2001 (2001 Plan). The Adobe application (Comp ID: NN–0) extension of the public comment period must download the PureEdge version. purpose of the Plan was to provide a for the draft of the 2008–2012 National general blueprint for federal action in II. Extension of Deadline Date and Invasive Species Management Plan. The coordination with State, local, Tribal, Important Resubmission Instructions Order established NISC as an inter- and private programs and international agency council to prevent and control HUD is extending the Neighborhood cooperation to prevent the introduction invasive species in order to minimize Networks deadline date to March 14, of invasive species, provide for their their economic, ecological and human 2008, to provide applicants the control and minimize the economic, health impacts. The Council, which is opportunity and time to download the environmental and human health PureEdge application, complete the co-chaired by the Secretaries of impacts. application including all attachments Agriculture, Commerce and the Interior This document is the first revision of and faxes, and submit the application to also includes the departments of State, the 2001 Plan, as mandated by EO Grants.gov in time to meet the new Defense, Transportation, Homeland 13112. The 2008–2012 National deadline date. Applicants that Security, Treasury, Health and Human Invasive Species Management Plan previously submitted a PureEdge Services, as well as the Environmental (2008 Plan) will provide direction for application do not have to resubmit a Protection Agency, the U.S. Trade federal efforts (including overall strategy new application, unless they want to Representative, the U.S. Agency for and objectives) to prevent, control and add information revising the original International Development and the minimize invasive species and their submission. Applicants that attempted National Aeronautics and Atmospheric impacts within the next five (5) fiscal to submit using Adobe 8.1.1 must Administration. The Plan is intended to years (2008 through 2012). If necessary, download the PureEdge application address invasive species in the areas of it may be updated more frequently to format and resubmit the application prevention, early detection and rapid reflect changes in circumstances, agency plus all attachments and faxes. response, control, restoration and plans and priorities. NISC member Applicants filing a revised application organizational collaboration. Text of the agencies, ISAC members, NISC staff, electronically must also submit a new 2008–2012 National Invasive Species stakeholders and other experts have set of any documents faxed to HUD but Management Plan is available in PDF provided input in drafting this revision, should do so only after they submit an format at http:// which is intended to replace the 2001 entire, complete application to www.invasivespeciesinfo.gov. Plan. Grants.gov and after the applicant DATES: The public comment period for Federal, State, local and Tribal receives validation of the application the draft Plan has been extended. All governments, as well as the private from Grants.gov. Applicants should comments must now be received by sector, have taken significant steps to allow 48 hours for validation of their close of business on March 12, 2008. meet the challenges posed by invasive revised application to occur and then species. These steps set the stage for the resend the faxed material. This process ADDRESSES: National Invasive Species 2008 Plan and provide direction and will ensure that the resubmitted faxes Council, Office of the Secretary, 1849 C focus. An estimated 67% of the 2001 are associated with the resubmitted Street, NW., Washington, DC 20240. Plan’s 57 action items have been application. Failure to follow these FOR FURTHER INFORMATION CONTACT: completed or are in progress. However instructions will result in faxes not Kelsey Brantley, National Invasive significant challenges remain and much being associated to the most recent Species Council Senior Program remains to be done to prevent and application and therefore not available Analyst: control invasive species in a

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coordinated and cost efficient manner. Plan has been extended. Comments Parcel One Long-range strategic planning, must now be received by close of That portion of Section 35, Township consistent with other government business on March 12, 2008. 16 North, Range 1 West, Humboldt agencies’ strategic plans is necessary to Dated: February 6, 2008. Meridian, described as follows: address complex invasive species PARCEL 2 as shown on the Parcel issues. The 2008 Plan establishes five, Lori C. Williams, Map filed in the office of the County long-term Strategic Goals that focus Executive Director. Recorder of Del Norte County, Federal efforts in the areas of invasive [FR Doc. E8–2502 Filed 2–8–08; 8:45 am] California, on December 28, 1979, in species work related to: BILLING CODE 4310–RK–P (1) Prevention; Book 4 of Parcel Maps, page 75. (2) Early Detection and Rapid EXCEPT therefrom those portions thereof conveyed to the County of Del Response; DEPARTMENT OF THE INTERIOR (3) Control and Management; Norte, by deeds recorded October (4) Restoration; and Bureau of Indian Affairs 18,1979, in Book 237, Official Records, (5) Organizational Collaboration. page 609, and May 19, 1986, in Book The Strategic Goals are ongoing and Land Acquisitions; Elk Valley 310, Official Records, page 444. serve as guideposts for managing Rancheria, California Parcel Two invasive species. Each Strategic Goal has an associated Strategic Action Plan AGENCY: Bureau of Indian Affairs, A 30-foot wide easement for road and with long-term Objectives and shorter- Interior. utility purposes lying 30 feet westerly of term Implementation Tasks and and adjacent to the following described Performance Elements. Where ACTION: Notice of Final Agency line: practicable, Implementation Tasks Determination to take land into trust BEGINNING at a point on the west define specific Performance Elements under 25 CFR Part 151. line of Parcel 3 of the land conveyed to that can be used to gauge progress. Work Del Norte County by OWEN W. BAUER in Research, Information and Data SUMMARY: The Assistant Secretary— by deed dated August 31, 1979, said Management and International Indian Affairs made a final agency point being North 185.0 feet from the Cooperation (which were addressed in determination to acquire approximately most southwesterly corner of said Parcel separate sections in the 2001 Plan) are 203.5 acres of land into trust for the Elk 3, and running; thence northerly along elements critical to achieving each of Valley Rancheria of California on westerly lines of Parcels 3 and 2 of the the five Strategic Goals and are included January 4, 2008. This notice is land conveyed to the County of Del in the pertinent sections of the 2008 published in the exercise of authority Norte by OWEN W. BAUER to the south Plan. delegated by the Secretary of the Interior line of Parcel 1 as said parcel is shown The 2008 Plan is not a comprehensive to the Assistant Secretary—Indian on the parcel map filed for OWEN W. list of all Federal invasive species Affairs by 209 Departmental Manual 8.1. BAUER on December 28, 1979 in Book actions. It is a targeted set of priority 4 of Parcel Maps, pages 75 through 78, Strategic Action Plans and Objectives FOR FURTHER INFORMATION CONTACT: in the office of the County Recorder of that are intended to be completed in the George Skibine, Office of Indian Del Norte County, California. next five years. The accomplishment of Gaming, MS–3657 MIB, 1849 C Street, Parcel Three specific Implementation Tasks and NW., Washington, DC 20240; Telephone Performance Elements will be (202) 219–4066. An easement for water removal purposes on the following described dependent upon agency budgets, and in SUPPLEMENTARY INFORMATION: This some cases, legal or regulatory changes. notice is published to comply with the parcel of land. BEGINNING at a point S 32 degrees Invasive species issues cannot be requirement of 25 CFR 151.12(b) that addressed by Federal programs and 00 minutes 20 seconds W (equals S 30 notice be given to the public of the actions alone. As reflected in EO 13112, degrees 36 minutes 09 seconds W true Secretary’s decision to acquire land in State, local, Tribal and private programs meridian) a distance of 1607.35 feet trust at least 30 days prior to signatory and policies are critical to success. from the northeast corner of section 34, acceptance of the land into trust. The Therefore, receiving public comment on Township 16 North, Range 1 West, purpose of the 30-day waiting period in this proposed 2008 Plan is an important Humboldt Meridian, and running: component of any strategy to address 25 CFR 151.12(b) is to afford interested (1) Thence South 60 degrees East, and reduce the harmful impacts of parties the opportunity to seek judicial 45.21 feet; invasive species. review of final administrative decisions (2) Thence South 30 degrees West, Submitting Comments: Text of the to take land in trust for Indian tribes and 70.00 feet; 2008–2012 National Invasive Species individual Indians before transfer of (3) Thence North 60 degrees West, Management Plan is available in PDF title to the property occurs. On January 150.00 feet; format at http:// 4, 2008, the Assistant Secretary—Indian (4) Thence North 30 degrees East, www.invasivespeciesinfo.gov. Printed Affairs decided to accept approximately 70.00 feet; copies of the Plan may be obtained by 203.5 acres of land into trust for the Elk (5) Thence South 60 degrees East, mail or e-mail request to the address Valley Rancheria of California under the 104.79 feet to the point of beginning. below. Written comments should be authority of the Indian Reorganization The bearings and distances contained addressed to Lori Williams, NISC Act of 1934, 25 U.S.C. 465. The 203.5 in this easement description are based Executive Director, U.S. Department of acre parcel is located in Del Norte upon the California Coordinate System, the Interior, Office of the Secretary, County, California. The parcel will be Zone 1, multiply distances by 0.9999742 National Invasive Species Council (OS/ used for construction and operation of to obtain ground level distances. NISC), 1849 C Street, NW., Washington, a class II and class III gaming facility. DC 20240. Comments can also be e- The real property situated in the County Parcel Four mailed to [email protected]. of Del Norte, State of California, is An easement for water pipe lines, said The public comment period for the draft described as follows: easement to be 20.0 feet in width, lying

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10.0 feet on each side of the following Secs. 16, 20, and 21; (PRA), MMS is inviting comments on a described centerline: Secs. 22, 26, and 27. collection of information that we will BEGINNING at a point S 32 degrees Containing 1,443.73 acres. submit to the Office of Management and 00 minutes 20 seconds W (equals S 30 T. 50 S., R. 67 E., Budget (OMB) for review and approval. degrees 36 minutes 09 seconds W true Secs. 21, 27, and 28; The information collection request (ICR) meridian) a distance of 1607.35 feet Secs. 34, 35, and 36. concerns the paperwork requirements in from the northeast corner of Section 34, Containing approximately 1,615 acres. the Coastal Impact Assistance Program Township 16 North, Range 1 West, T. 50 S., R. 68 W., (CIAP) State Plan Guidelines. The Humboldt Meridian, and running: Sec. 23. Energy Policy Act of 2005 gave (1) Thence South 76 degrees 39 Containing 0.43 acres. responsibility to MMS for CIAP by minutes 35 seconds East, 153.58 feet; Aggregating approximately 3,059 amending section 31 of the Outer (2) Thence South 76 degrees 46 acres. Continental Shelf Lands Act (43 U.S.C. minutes 42 seconds East, 206.05 feet; 1356a; Appendix A). (3) Thence South 72 degrees 25 Notice of the decision will also be DATES: Submit written comments by minutes 39 seconds East, 153.79 feet; published four times in the Anchorage April 11, 2008. (4) Thence South 81 degrees 07 Daily News. ADDRESSES: You may submit comments minutes 49 seconds East, 162.47 feet; DATES: The time limits for filing an (5) Thence North 84 degrees 03 appeal are: by any of the following methods listed minutes 26 seconds East, 158.59 feet; below. 1. Any party claiming a property • (6) Thence North 36 degrees 54 interest which is adversely affected by Electronically: go to http:// minutes 36 seconds East, 75 feet, more the decision shall have until March 12, www.regulations.gov. Under the tab or less, to Parcel ‘‘2’’ as said parcel is 2008, to file an appeal. ‘‘More Search Options,’’ click Advanced shown on the parcel map filed for 2. Parties receiving service of the Docket Search, then select ‘‘Minerals OWEN W. BAUER on December 28, decision by certified mail shall have 30 Management Service’’ from the agency 1979 in Book 4 of Parcel Maps, pages 75 days from the date of receipt to file an drop-down menu, then click ‘‘submit.’’ through 78 inclusive, in the office of the appeal. In the Docket ID column, select MMS– County Recorder of Del Norte County, Parties who do not file an appeal in 2008–OMM–0013 to submit public California. The sidelines of this accordance with the requirements of 43 comments and to view supporting and easement shall coincide with the CFR part 4, Subpart E, shall be deemed related materials available for this boundary of the land described in to have waived their rights. rulemaking. Information on using Easement ‘‘B’’ hereinabove described on ADDRESSES: A copy of the decision may Regulations.gov, including instructions the west and Parcel 2 of said Bauer map be obtained from: Bureau of Land for accessing documents, submitting on the east. Management, Alaska State Office, 222 comments, and viewing the docket after The bearings and distances contained West Seventh Avenue, #13, Anchorage, the close of the comment period, is in this easement description are based Alaska 99513–7504. available through the site’s ‘‘User Tips’’ upon the California Coordinate System, FOR FURTHER INFORMATION, CONTACT: The link. The MMS will post all comments. Zone 1, multiply distances by 0.9999742 • Bureau of Land Management by phone Mail or hand-carry comments to the to obtain ground level distances. APN: at 907–271–5960, or by e-mail at Department of the Interior; Minerals 115–02–28 [email protected]. Persons Management Service; Attention: Cheryl Dated: February 1, 2008. who use a telecommunication device Blundon; 381 Elden Street, MS–4024; Carl J. Artman, (TTD) may call the Federal Information Herndon, Virginia 20170–4817. Please Assistant Secretary—Indian Affairs. Relay Service (FIRS) at 1–800–877– reference ‘‘Information Collection 1010– [FR Doc. E8–2501 Filed 2–8–08; 8:45 am] 8330, 24 hours a day, seven days a 0170’’ in your comments. BILLING CODE 4310–4N–P week, to contact the Bureau of Land SUPPLEMENTARY INFORMATION: Management. Title: Coastal Impact Assistance Program (CIAP). DEPARTMENT OF THE INTERIOR Michael Bilancione, OMB Control Number: 1010–0170. Land Transfer Resolution Specialist, Land Abstract: With the passage of the Bureau of Land Management Transfer Adjudication I. Energy Policy Act of 2005 (EPAct), the [FR Doc. E8–2504 Filed 2–8–08; 8:45 am] Minerals Management Service (MMS) [AA–6671–G, AA–6671–H, AA–6671–C2; AK 964–1410–HY–P] BILLING CODE 4310–$$–P was given responsibility for the Coastal Impact Assistance Program (CIAP) Alaska Native Claims Selection through the amendment of section 31 of DEPARTMENT OF THE INTERIOR the Outer Continental Shelf Lands Act AGENCY: Bureau of Land Management, (43 U.S.C. 1356a, Appendix A). Minerals Management Service Interior. The CIAP recognizes that impacts ACTION: Notice of decision approving [Docket No. MMS–2007–OMM–0013] from Outer Continental Shelf (OCS) oil lands for conveyance. and gas activities fall disproportionately MMS Information Collection Activity: on the coastal states and localities SUMMARY: As required by 43 CFR 1010–0170—Coastal Impact Assistance 2650.7(d), notice is hereby given that an nearest to where the activities occur, Program (CIAP), Revision of a and where associated facilities are appealable decision approving lands for Collection; Comment Request conveyance pursuant to the Alaska located. The CIAP legislation Native Claims Settlement Act will be AGENCY: Minerals Management Service appropriates money for eligible states issued to Bay View Incorporated. The (MMS), Interior. and coastal political subdivisions for lands are in the vicinity of Ivanof Bay, ACTION: Notice of a revision of an coastal restoration/improvement Alaska, and are located in: information collection (1010–0170). projects. The MMS shall disburse $250 million to eligible producing states and Seward Meridian, Alaska SUMMARY: To comply with the coastal political subdivisions (CPSs) T. 50 S., R. 66 E., Paperwork Reduction Act of 1995 through a grant program. The funds

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allocated to each state are based on the more information needs to be submitted (5 U.S.C. 552) and its implementing proportion of qualified OCS revenues by the government jurisdictions to meet regulations (43 CFR part 2). No items of offshore the individual state to total all the requirements of the CIAP State a sensitive nature are collected. qualified OCS revenues from all states. Plan Guidelines as well as requirements Responses are required to obtain or In order to receive funds, the states on the procurement contracts. To retain benefits. submit CIAPs detailing how the funds approve a plan, legislation requires that Frequency: On occasion. will be expended. Alabama, Alaska, the Secretary of the Interior must be able California, Louisiana, Mississippi, and to determine that the funds will be used Estimated Number and Description of Texas are the only eligible states under in accordance with EPAct criteria and Respondents: Approximately 6 states EPAct. Counties, parishes or equivalent that projects will use the funds and 67 CPSs. units of government within those states according to the EPAct. To confirm Estimated Reporting and lying all or in part within the coastal appropriate use of funds, MMS requires Recordkeeping ‘‘Hour’’ Burden: The zone, as defined by section 304(1) of the affirmation of grantees meeting Federal, currently approved annual reporting Coastal Zone Management Act (CZMA) state, and local laws and adequate burden for this collection is 12,600 1972, as amended, are the Coastal project descriptions. hours. The following chart details the Political Subdivisions (CPSs) eligible for This information collection request individual components and respective CIAP funding, a total of 67 local revises the original ICR to include the hour burden estimates of this ICR. In jurisdictions. All funds will be additional information needed to fulfill calculating the burdens, we assumed disbursed through a grant process. the requirements of the MMS CIAP that respondents perform certain In September 2006, CIAP draft grant program. requirements in the normal course of guidelines were written which were We will protect information from their activities. We consider these to be then amended in May 2007. As this respondents considered proprietary usual and customary and took that into program has evolved and developed, under the Freedom of Information Act account in estimating the burden.

CIAP reporting and/or recordkeeping requirement Hour Burden

Project narrative ...... 42 Submit annual performance reports ...... 8 Submit bi-annual performance reports ...... 8 Notify MMS in case of delays, adverse conditions, etc., which impair ability to meet objectives of the award including statement of action take or contemplated or assistance required (included non-construction and construction grants) ...... 4 Request termination and supporting information.* ...... 6 Retain all records/documentation for 3 years ...... ** 30 Retain records longer than 3 years if they relate to claim, audit, litigation, etc. Exempt under 5 CFR 1320.4(a)(2), (c) ...... 0 Telephone follow-up discussion on financial capabilities ...... 8 Develop language and individual signage at CIAP sites—estimated 30 construction projects with temp signs initially—permanent signs 2–4 years.* ...... 8 Submission of photographs/cds of projects for tracking purposes.* ...... 4 Voluntarily submit draft Coastal Impact Assistance Plan with appropriate supporting documentation ...... 1 Submit final Coastal Impact Assistance Plan and all supporting documentation (i.e., Governor’s certification of public participa- tion; Appendices C, D, and E) ...... 1 Request delay by states for submitting final plan, with relevant data ...... 1 Request minor changes and/or amendments to a plan ...... 8 * Initially determined that this will be minimal burden, for the first 3 years, until more respondents are actively involved in a CIAP project. ** Minutes.

Estimated Reporting and duties, including whether the system and technology acquisition, Recordkeeping ‘‘Non-Hour Cost’’ information is useful; (b) evaluate the expected useful life of capital Burden: We have identified no ‘‘non- accuracy of the agency’s estimate of the equipment, discount rate(s), and the hour cost’’ burdens for this collection. burden of the proposed collection of period over which you incur costs. Public Disclosure Statement: The PRA information; (c) enhance the quality, Capital and startup costs include, (44 U.S.C. 3501, et seq.) provides that an usefulness, and clarity of the among other items, computers and agency may not conduct or sponsor a information to be collected; and (d) software you purchase to prepare for collection of information unless it minimize the burden on the collecting information, monitoring, and displays a currently valid OMB control respondents, including the use of record storage facilities. You should not number. Until OMB approves a automated collection techniques or include estimates for equipment or collection of information, you are not other forms of information technology. services purchased: (i) Before October 1, obligated to respond. Agencies must also estimate the ‘‘non- 1995; (ii) to comply with requirements Comments: Before submitting an ICR hour cost’’ burdens to respondents or not associated with the information to OMB, PRA section 3506(c)(2)(A) recordkeepers resulting from the collection; (iii) for reasons other than to requires each agency ‘‘ * * * to provide collection of information. Therefore, if provide information or keep records for notice * * * and otherwise consult you have costs to generate, maintain, the Government; or (iv) as part of with members of the public and affected and disclose this information, you customary and usual business or private agencies concerning each proposed should comment and provide your total practices. collection of information * * * ’’. capital and startup cost components or Agencies must specifically solicit annual operation, maintenance, and We will summarize written responses comments to: (a) Evaluate whether the purchase of service components. You to this notice and address them in our proposed collection of information is should describe the methods you use to submission for OMB approval. As a necessary for the agency to perform its estimate major cost factors, including result of your comments, we will make

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any necessary adjustments to the burden Tonahutu Creek Trail, (Rocky Mountain Queens County in our submission to OMB. National Park MPS) Roughly along St. George’s Church, 135-32 38th Ave., Public Comment Procedures: Before Tonahutu Cr. to Flattop Mt., Grand Lake, Flushing, 08000143. including your address, phone number, 08000130. Schenectady County e-mail address, or other personal Larimer County identifying information in your Bishop Family Lustron House, (Lustron Lake Haiyaha Trail, (Rocky Mountain Houses in New York MPS) 26 Slater Dr., comment, you should be aware that National Park MPS) Roughly along Bear, your entire comment—including your Nymph & Dream Lakes, then up Chaos Schenectady, 08000144. personal identifying information—may Canyon, Estes Park, 08000125. Enlarged Double Lock No. 23, Old Erie Canal, be made publicly available at any time. Lost Lake Trail, (Rocky Mountain National Rice Rd., Rotterdam, 08000145. While you can ask us in your comment Park MPS) Roughly along N. Fork Big Westchester County to withhold your personal identifying Thompson R., Estes Park, 08000126. information from public review, we North Inlet Trail, (Rocky Mountain National Hadden—Margolis House, 61 Winfield Ln., cannot guarantee that we will be able to Park MPS) Roughly along N. Inlet & Hallett Harrison, 08000146. do so. Cr. to Flattop Mt., Grand Lake, 08000127. OHIO MMS Information Collection Ypsilon Lake Trail, (Rocky Mountain Clearance Officer: Arlene Bajusz, (202) National Park MPS) Along ridge between Cuyahoga County 208–7744. Chiquita Cr. & Roaring R., Estes Park, Strongsville Town Hall, 18825 Royalton Rd., 08000131. Dated: February 4, 2008. Strongsville, 08000147. E.P. Danenberger, INDIANA Lawrence County Chief, Office of Offshore Regulatory Programs. Marion County Brunberg Building, 222 S. 3rd St., Ironton, [FR Doc. E8–2428 Filed 2–8–08; 8:45 am] Nurses’ Sunken Garden and Convalescent, 08000148. BILLING CODE 4310–MR–P Bounded by Michigan St., Rotary Bldg., Marlow Theatre, S. 3rd & Park Sts., Ironton, West Dr. & Union Bldg., Indianapolis, 08000149. 08000132. DEPARTMENT OF THE INTERIOR OKLAHOMA MINNESOTA Greer County National Park Service Washington County Jay Buckle Springs, E. of Co. Rd. N1840, 500 National Register of Historic Places; Bergstein, Monitz, Shoddy Mill and ft. N. of jct. with Co. Rd. E1420, Reed, Notification of Pending Nominations Warehouse, 6046 Stagecoach Rd., Oak Park 08000150. Heights, 08000133. and Related Actions Oklahoma County NEW JERSEY Nominations for the following Fidelity National Building, 200 N. Harvey properties being considered for listing Mercer County Center, Oklahoma City, 08000151. or related actions in the National East Trenton Public Library, 701 N. Clinton RHODE ISLAND Register were received by the National St., Trenton, 08000134. Park Service before January 26, 2008. Bristol County Monmouth County Pursuant to section 60.13 of 36 CFR part Jennys Lane Historic District, Jennys Ln., 60 written comments concerning the Squan Beach Life-Saving Station #9, Ocean & Mathewson & Rumstick Rds. significance of these properties under 2nd Aves., Manasquan, 08000135. Newport County the National Register criteria for Morris County evaluation may be forwarded by United St. Mary’s Church Complex, 14 William St., Pompton Plains Railroad Station, 33 Evans Newport, 08000153. States Postal Service, to the National Place, Pequannock, 08000136. Register of Historic Places, National SOUTH CAROLINA Park Service, to the National Register of Somerset County Historic Places, National Park Service, Robert, Robert, House, 25 West End Ave., York County 1849 C St., NW., 2280, Washington, DC Somerville, 08000137. Bleachery Water Treatment Plant, (Rock Hill MPS) Stewart Ave., Rock Hill, 08000154. 20240; by all other carriers, National NEW YORK Register of Historic Places, National Rock Hill Body Company, (Rock Hill MPS) Park Service, 1201 Eye St., NW., 8th Albany County 601 W. Main St., Rock Hill, 08000155. floor, Washington, DC 20005; or by fax, Knox Street Historic District, Knox St. Rock Hill Cotton Factory (Boundary 202–371–6447. Written or faxed between Madison Ave. & Morris St., Increase), (Rock Hill MPS) 130 W. White comments should be submitted by Albany, 08000138. St., Rock Hill, 08000156. February 26, 2008. Herkimer County VERMONT J. Paul Loether, South Ann Street—Mill Street Historic Addison County District, S. Ann & Mill Sts., Little Falls, Chief, National Register of Historic Places/ Bottum Farm, (Agriculture Resources of 08000139. National Historic Landmarks Program. Vermont MPS) 1423 North St., New Haven, ARIZONA New York County 08000157. Maricopa County Fraunces Tavern, 54 Pearl St., New York Windham County 08000140. Bunch, E.C., House, 5602 W. Lamar Rd., Tontine Building, 500 Coolidge Hwy., Glendale, 08000123. Onondaga County Guilford, 08000158. COLORADO Hotel Syracuse, 500 S. Warren St., Syracuse, Windsor County 08000141. Grand County Old Christ Church, (Religious Buildings, Shadow Mountain Trail, (Rocky Mountain Orange County Sites and Structures in Vermont MPS) Jct. National Park MPS) E. side of Shadow Mt. Dodge—Greenleaf House, 2009 NY 211, of VT 12 and Gilead Brook Rd., Bethel, Lake, Grand Lake, 08000124. Otisville, 08000142. 08000159.

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WISCONSIN growers/exporters accounting for a Innsbruck, AUSTRIA; and Test Grant County significant percentage of all fresh Research, Inc., Taipei, TAIWAN have tomatoes imported into the United been added as parties to this venture. Kinney, Patrick and Margaret, House, 424 N. Also, Coherent, Inc., Santa Clara, CA; Fillmore St., Lancaster, 08000160. States from Mexico provided written notice to Commerce of their withdrawal Dell, Inc., Round Rock, TX; FCI, [FR Doc. 08–590 Filed 2–8–08; 8:45 am] from the agreement suspending the Versailles, FRANCE; IBM Corporation, BILLING CODE 4312–51–M antidumping investigation on fresh Somers, NY; KLA Tencor Corporation, tomatoes from Mexico. Effective January San Jose, CA; Medtronic, Inc., 18, 2008, the Department of Commerce Minneapolis, MN; Microsoft INTERNATIONAL TRADE terminated the suspension agreement, Corporation, Redmond, WA; and COMMISSION terminated the five-year review of the Supresta, Ardsley, NY have withdrawn as parties to this venture. [Investigation No. 731–TA–747 (Final)] suspended investigation, and resumed the antidumping investigation on fresh No other changes have been made in Fresh Tomatoes From Mexico tomatoes from Mexico because the either the membership or planned suspension agreement no longer covered activity of the group research project. AGENCY: United States International substantially all imports of fresh Membership in this group research Trade Commission. tomatoes from Mexico (73 FR 2887, project remains open, and iNEMI ACTION: Suspension of antidumping January 16, 2008). Accordingly, effective intends to file additional written investigation. January 18, 2008, the U.S. International notifications disclosing all changes in Trade Commission terminated its membership. SUMMARY: Effective January 22, 2008, the review and resumed its antidumping On June 6, 1996, iNEMI filed its Department of Commerce (‘‘Commerce’’) investigation involving imports of fresh original notification pursuant to Section suspended its antidumping tomatoes from Mexico (73 FR 5869, 6(a) of the Act. The Department of investigation on fresh tomatoes from January 31, 2008). Justice published a notice in the Federal Mexico (73 FR 4831, January 28, 2008). Register pursuant to Section 6(b) of the The basis for the suspension is an Authority: This investigation is being Act on June 28, 1996 (61 FR 33774). agreement between Commerce and suspended under authority of title VII of the Tariff Act of 1930; this notice is published The last notification was filed with producers/exporters that account for pursuant to section 207.40 of the the Department on December 27, 2006. substantially all imports of this product Commission’s rules (19 CFR 207.40). A notice was published in the Federal from Mexico, wherein each signatory Register pursuant to Section 6(b) of the By order of the Commission. producer/exporter agreed to revise its Act on February 12, 2007 (72 FR 6577). prices to eliminate completely the Issued: February 5, 2008. injurious effects of exports of this Marilyn R. Abbott, Patricia A. Brink, merchandise to the United States. Secretary to the Commission. Deputy Director of Operations, Antitrust Division. Accordingly, the U.S. International [FR Doc. E8–2439 Filed 2–8–08; 8:45 am] [FR Doc. 08–592 Filed 2–8–08; 8:45 am] Trade Commission (‘‘Commission’’) BILLING CODE 7020–02–P gives notice of the suspension of its BILLING CODE 4410–11–M antidumping investigation involving imports of fresh tomatoes from Mexico. DEPARTMENT OF JUSTICE DEPARTMENT OF JUSTICE EFFECTIVE DATE: January 22, 2008. FOR FURTHER INFORMATION CONTACT: Antitrust Division Antitrust Division Mary Messer (202–205–3193), Office of Investigations, U.S. International Trade Notice Pursuant to the National Notice Pursuant to the National Commission, 500 E Street, SW., Cooperative Research and Production Cooperative Research and Production Washington, DC 20436. Hearing- Act of 1993—International Electronics Act of 1993—Petroleum Environmental impaired individuals are advised that Manufacturing Initiative Research Forum information on this matter can be Notice is hereby given that, on Notice is hereby given that, on obtained by contacting the December 27, 2007, pursuant to Section November 15, 2007, pursuant to Section Commission’s TDD terminal on 202– 6(a) of the National Cooperative 6(a) of the National Cooperative 205–1810. Persons with mobility Research and Production Act of 1993, Research and Production Act of 1993, impairments who will need special 15 U.S.C. 4301 et seq. (‘‘the Act’’), 15 U.S.C. 4301 et seq. (‘‘the Act’’), assistance in gaining access to the International Electronics Manufacturing Petroleum Environmental Research Commission should contact the Office Initiative (‘‘iNEMI’’) has filed written Forum (‘‘PERF’’) has filed written of the Secretary at 202–205–2000. notifications simultaneously with the notifications simultaneously with the General information concerning the Attorney General and the Federal Trade Attorney General and the Federal Trade Commission may also be obtained by Commission disclosing changes in its Commission disclosing changes in its accessing its internet server (http:// membership. The notifications were membership. The notifications were www.usitc.gov). filed for the purpose of extending the filed for the purpose of extending the SUPPLEMENTARY INFORMATION: On Act’s provisions limiting the recovery of Act’s provisions limiting the recovery of November 1, 2007, a second five-year antitrust plaintiffs to actual damages antitrust plaintiffs to actual damages review on fresh tomatoes from Mexico under specified circumstances. under specified circumstances. was instituted to determine whether Specifically, Endicott Interconnect Specifically, Petroleo Brasileiro S.A. termination of the suspended Technologies, Inc. (EIT), Endicott, NY; (PETROBRAS) Research and investigation on fresh tomatoes from Dyconex AG, Bassersdorf, Development Center (CENPES), Rio de Mexico would be likely to lead to SWITZERLAND; Huawei Technologies Janeiro, BRAZIL has been added as a continuation or recurrence of material Co., Ltd., Shenzhen, PEOPLE’S party to this venture. injury (72 FR 61903, November 1, 2007). REPUBLIC OF CHINA; MED-EL No other changes have been made in On November 26, 2007, Mexican tomato Elektromedizinische Gera¨te GmbH, either the membership or planned

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activity of the group research project. Written comments and suggestions (6) An estimate of the total public Membership in this group research from the public and affected agencies burden (in hours) associated with the project remains open, and PERF intends concerning the proposed collection of collection: 11,250 annual burden hours. to file additional written notifications information are encouraged. Your If additional information is required disclosing all changes in membership. comments should address one or more contact: Lynn Bryant, Department On February 10, 1986, PERF filed its of the following four points: Clearance Officer, United States original notification pursuant to Section —Evaluate whether the proposed Department of Justice, Justice 6(a) of the Act. The Department of collection of information is necessary Management Division, Policy and Justice published a notice in the Federal for the proper performance of the Planning Staff, Patrick Henry Building, Register pursuant to Section 6(b) of the functions of the agency, including Suite 1600, 601 D Street NW., Act on March 14, 1986 (51 FR 8903). whether the information will have Washington, DC 20530. The last notification was filed with practical utility; the Department on November 23, 2005. Dated: February 4, 2008. —Evaluate the accuracy of the agencies A notice was published in the Federal Lynn Bryant, estimate of the burden of the Register pursuant to Section 6(b) of the Department Clearance Officer, PRA, proposed collection of information, Act on April 5, 2006 (71 FR 17142). Department of Justice. including the validity of the [FR Doc. E8–2497 Filed 2–8–08; 8:45 am] Patricia A. Brink, methodology and assumptions used; BILLING CODE 4410–09–P Deputy Director of Operations, Antitrust —Enhance the quality, utility, and Division. clarity of the information to be [FR Doc. 08–591 Filed 2–8–08; 8:45 am] collected; and DEPARTMENT OF JUSTICE BILLING CODE 4410–11–M —Minimize the burden of the collection of information on those who are to Drug Enforcement Administration respond, including through the use of [OMB Number 1117–0009] DEPARTMENT OF JUSTICE appropriate automated, electronic, mechanical, or other technological Agency Information Collection Drug Enforcement Administration collection techniques or other forms Activities: Proposed Collection; [OMB Number 1117–0007] of information technology, e.g., Comments Requested permitting electronic submission of Agency Information Collection responses. ACTION: 30-Day Notice of Information Activities: Proposed Collection; Collection Under Review; Controlled Overview of this Information Collection Comments Requested Substances Import/Export Declaration— (1) Type of Information Collection: DEA Form 236. ACTION: 30-Day Notice of Information Extension of a currently approved Collection Under Review; Registrants collection. The Department of Justice (DOJ), Drug Inventory of Drugs Surrendered—DEA (2) Title of the Form/Collection: Enforcement Administration (DEA) will Form 41. Registrants’ Inventory of Drugs be submitting the following information collection request to the Office of The Department of Justice (DOJ), Drug Surrendered—DEA Form 41. Enforcement Administration (DEA) will (3) Agency form number, if any, and Management and Budget (OMB) for be submitting the following information the applicable component of the review and approval in accordance with collection request to the Office of Department sponsoring the collection: the Paperwork Reduction Act of 1995. Management and Budget (OMB) for Form number: DEA Form 41. The proposed information collection is review and approval in accordance with Component: Office of Diversion published to obtain comments from the the Paperwork Reduction Act of 1995. Control, Drug Enforcement public and affected agencies. This The proposed information collection is Administration, U.S. Department of proposed information collection was published to obtain comments from the Justice. previously published in the Federal public and affected agencies. This (4) Affected public who will be asked Register Volume 72, Number 234, page proposed information collection was or required to respond, as well as a brief 68899 on December 6, 2007, allowing previously published in the Federal abstract: for a 60-day comment period. Register Volume 72, Number 234, page Primary: Business or other for-profit. The purpose of this notice is to allow 68899 on December 6, 2007, allowing Other: Not-for-profit institutions, for an additional 30 days for public for a 60-day comment period. federal government, state, local or tribal comment until March 12, 2008. This The purpose of this notice is to allow government. process is conducted in accordance with for an additional 30 days for public Abstract: Title 21 CFR 1307.21 5 CFR 1320.10. comment until March 12, 2008. This requires that any registrant desiring to Written comments and/or suggestions process is conducted in accordance with voluntarily dispose of controlled regarding the items contained in this 5 CFR 1320.10. substances shall list these controlled notice, especially the estimated public Written comments and/or suggestions substances on DEA Form 41 and submit burden and associated response time, regarding the items contained in this the form to the nearest DEA office. The should be directed to the Office of notice, especially the estimated public DEA Form 41 is used to account for Management and Budget, Office of burden and associated response time, destroyed controlled substances, and its Information and Regulatory Affairs, should be directed to the Office of use is mandatory. Attention Department of Justice Desk Management and Budget, Office of (5) An estimate of the total number of Officer, Washington, DC 20503. Information and Regulatory Affairs, respondents and the amount of time Additionally, comments may be Attention Department of Justice Desk estimated for an average respondent to submitted to OMB via facsimile to (202) Officer, Washington, DC 20503. respond: It is estimated that 22,500 395–5806. Additionally, comments may be respondents will respond annually, Written comments and suggestions submitted to OMB via facsimile to (202) taking 30 minutes to complete each from the public and affected agencies 395–5806. form. concerning the proposed collection of

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information are encouraged. Your Planning Staff, Patrick Henry Building, • Enhance the quality, utility, and comments should address one or more Suite 1600, 601 D Street, NW., clarity of the information to be of the following four points: Washington, DC 20530. collected; and • —Evaluate whether the proposed Dated: February 4, 2008. Minimize the burden of the collection of information is necessary Lynn Bryant, collection of information on those who are to respond, including through the for the proper performance of the Department Clearance Officer, PRA, functions of the agency, including Department of Justice. use of appropriate automated, electronic, mechanical, or other whether the information will have [FR Doc. E8–2498 Filed 2–8–08; 8:45 am] practical utility; technological collection techniques or —Evaluate the accuracy of the agencies’ BILLING CODE 4410–09–P other forms of information technology, estimate of the burden of the e.g., permitting electronic submission of proposed collection of information, responses. including the validity of the DEPARTMENT OF LABOR Agency: Occupational Safety and methodology and assumptions used; Health Administration. —Enhance the quality, utility, and Office of the Secretary Type of Review: Extension without change of a previously approved clarity of the information to be Submission for OMB Review: collection. collected; and Comment Request —Minimize the burden of the collection Title of Collection: Fire Brigades (29 of information on those who are to February 5, 2008. CFR 1910.156). respond, including through the use of The Department of Labor (DOL) OMB Control Number: 1218–0075. appropriate automated, electronic, hereby announces the submission of the Agency Form Number: None. mechanical, or other technological following public information collection Affected Public: Private Sector: collection techniques or other forms request (ICR) to the Office of Business or other for-profits and Not- of information technology, e.g., Management and Budget (OMB) for for-profits institutions. permitting electronic submission of review and approval in accordance with Estimated Number of Respondents: responses. the Paperwork Reduction Act of 1995 7,010. (Pub. L. 104–13, 44 U.S.C. chapter 35). Estimated Total Annual Burden Overview of This Information Hours: 5,048. Collection A copy of this ICR, with applicable supporting documentation; including Estimated Total Annual Costs Burden: (1) Type of Information Collection: among other things a description of the $0. Extension of a currently approved likely respondents, proposed frequency Description: OSHA does not mandate collection. of response, and estimated total burden that employers establish fire brigades; (2) Title of the Form/Collection: may be obtained from the RegInfo.gov however, if they do so, they must Controlled Substances Import/Export Web site at http://www.reginfo.gov/ comply with certain provisions of the Declaration—DEA Form 236. public/do/PRAMain or by contacting Standard for Fire Brigades. See 29 CFR (3) Agency form number, if any, and Darrin King on 202–693–4129 (this is 1910.156. The Standard imposes the the applicable component of the not a toll-free number)/e-mail: following paperwork requirements on Department sponsoring the collection: each employer who establishes a fire Form number: DEA Form 236. [email protected]. Interested parties are encouraged to brigade: Write an organizational Component: Office of Diversion statement; ascertain the fitness of Control, Drug Enforcement send comments to the Office of Information and Regulatory Affairs, employees with specific medical Administration, U.S. Department of conditions to participate in fire related Justice. Attn: John Kraemer, OMB Desk Officer for the Occupational Safety and Health operations; and provide appropriate (4) Affected public who will be asked training and information to fire brigade or required to respond, as well as a brief Administration (OSHA), Office of Management and Budget, Room 10235, members. For additional information, abstract: see related notice published on Primary: Business or other for-profit. Washington, DC 20503, Telephone: November 21, 2007 at 72 FR 65608. Other: None. 202–395–7316/Fax: 202–395–6974 Abstract: DEA–236 provides the DEA (these are not a toll-free numbers), E- Darrin A. King, _ with control measures over the mail: OIRA [email protected] Acting Departmental Clearance Officer. importation and exportation of within 30 days from the date of this [FR Doc. E8–2445 Filed 2–8–08; 8:45 am] publication in the Federal Register. In controlled substances as required by BILLING CODE 4510–26–P United States drug control laws and order to ensure the appropriate international treaties. consideration, comments should (5) An estimate of the total number of reference the OMB Control Number (see NUCLEAR REGULATORY respondents and the amount of time below). COMMISSION estimated for an average respondent to The OMB is particularly interested in respond: It is estimated that 278 comments which: • Request for a License to Export respondents, 4,868 responses annually, Evaluate whether the proposed Radioactive Waste taking 18 minutes to complete each collection of information is necessary form. for the proper performance of the Pursuant to 10 CFR 110.70(b) ‘‘Public (6) An estimate of the total public functions of the agency, including Notice of Receipt of an Application,’’ burden (in hours) associated with the whether the information will have please take notice that the Nuclear collection: 1,460.4 annual burden hours. practical utility; Regulatory Commission (NRC) has If additional information is required • Evaluate the accuracy of the received the following request for an contact: Lynn Bryant, Department agency’s estimate of the burden of the export license. Copies of the request are Clearance Officer, United States proposed collection of information, available electronically through ADAMS Department of Justice, Justice including the validity of the and can be accessed through the Public Management Division, Policy and methodology and assumptions used; Electronic Reading Room (PERR) link

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http://www.nrc.gov/reading-rm.html at Department of State, Washington, DC digital ID certificate and allow for the the NRC Homepage. 20520. creation of an electronic docket. A request for a hearing or petition for A request for a hearing or petition for In addition to a request for hearing or leave to intervene may be filed within leave to intervene may be filed with the petition for leave to intervene, written thirty days after publication of this NRC electronically in accordance with comments, in accordance with 10 CFR notice in the Federal Register. Any NRC’s E-Filing rule promulgated in 110.81, should be submitted within request for hearing or petition for leave August 2007, 72 FR 49139 (Aug. 28, thirty (30) days after publication of this to intervene shall be served by the 2007). Information about filing notice in the Federal Register to Office requestor or petitioner upon the electronically is available on timely of the Secretary, U.S. Nuclear Regulatory Commission, Washington, applicant, the office of the General electronic filing, at least five days prior DC 20555, Attention: Rulemaking and Counsel, U.S. Nuclear Regulatory to the filing deadline, the petitioner/ Adjudications. Commission, Washington, DC 20555; requestor should contact the Office of The information concerning this the Secretary, U.S. Nuclear Regulatory the Secretary by e-mail at license application follows. Commission, Washington, DC 20555; [email protected], or by and the Executive Secretary, U.S. calling (301) 415–1677, to request a NRC Export License Application

DESCRIPTION OF MATERIAL

Name of applicant date of application date received Material type Total quantity End use Country application No. of origin docket No.

EnergySolutions Radioactively contaminated mate- Maximum activity requested for Proposed imports of radioactive Italy. September 14, 2007 rial from nuclear facility oper- export is nominally 10% of the waste (see IW023) that does (ML072950080). ations in Italy requested for im- activity requested for import in not meet the waste acceptance September 17, 2007 ..... port into the U.S. by application application IW023. criteria for the Clive, Utah, fa- XW013 dated 09/14/07 (see associated cility will be returned to the 11005710 import license application generator(s) in Italy. Additional Information: IW023). The material consists December 5, 2007 of contaminated metals, graph- (ML073400154). ite, dry activity material (e.g., January 11, 2008 wood, paper, and plastic), liq- (ML080150374). uids (e.g., aqueous and or- ganic-based fluids), and ion ex- change resins (treated and un- treated).

Dated this 5th day of February 2008 at and can be accessed through the Public August 2007, 72 FR 49139 (Aug. 28, Rockville, Maryland. Electronic Reading Room (PERR) link 2007). Information about filing For the Nuclear Regulatory Commission. http://www.nrc.gov/reading-rm.html at electronically is available on timely Scott W. Moore, the NRC Homepage. electronic filing, at least five days prior Deputy Director, Office of International A request for a hearing or petition for to the filing deadline, the petitioner/ Programs. leave to intervene may be filed within requestor should contact the Office of [FR Doc. E8–2483 Filed 2–8–08; 8:45 am] thirty days after publication of this the Secretary by e-mail at BILLING CODE 7590–01–P notice in the Federal Register. Any [email protected], or by request for hearing or petition for leave calling (301) 415–1677, to request a to intervene shall be served by the digital ID certificate and allow for the NUCLEAR REGULATORY requestor or petitioner upon the creation of an electronic docket. COMMISSION applicant, the office of the General In addition to a request for hearing or Counsel, U.S. Nuclear Regulatory petition for leave to intervene, written Request for a License to Import Commission, Washington, DC 20555; comments, in accordance with 10 CFR Radioactive Waste the Secretary, U.S. Nuclear Regulatory 110.81, should be submitted within Commission, Washington, DC 20555; thirty days after publication of this Pursuant to 10 CFR 110.70 (c) ‘‘Public and the Executive Secretary, U.S. notice in the Federal Register to Office Notice of Receipt of an Application,’’ Department of State, Washington, DC of the Secretary, U.S. Nuclear please take notice that the Nuclear 20520. Regulatory Commission, Washington, Regulatory Commission (NRC) has A request for a hearing or petition for DC 20555, Attention: Rulemaking and received the following request for an leave to intervene may be filed with the Adjudications. import license. Copies of the request are NRC electronically in accordance with The information concerning this available electronically through ADAMS NRC’s E-Filing rule promulgated in license application follows.

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NRC IMPORT LICENSE APPLICATION [Description of material]

Name of applicant, date of ap- plication, date received, appli- Material type Total quantity End use Country cation No., docket No. of origin

EnergySolutions, September Up to approximately 20,000 Total volume estimated to be Contaminated materials are to Italy. 14, 2007 (ML072950080), tons of radioactively con- approximately 1,000,000 be inspected, sorted and September 17, 2007 IW023, taminated material from nu- cubic feet. Quantities, types processed at applicant’s fa- 11005711. clear facility operations; con- and combinations of radio- cilities in and licensed by the Additional Information: Decem- sisting of contaminated met- active contaminants will vary State of Tennessee for recy- ber 5, 2007 (ML073400154), als, graphite, dry activity ma- depending on material, but cle and beneficial reuse January 11, 2008 terial (e.g., wood, paper, and at no time will they exceed and/or disposal of as radio- (ML080150374). plastic), liquids (e.g., aque- importer’s possession limits. active waste (pending con- ous and organic-based The cumulative total quantity formity with waste accept- fluids), and ion exchange for each type of contaminant ance criteria) at a Clive, resins (treated and un- over the duration of the im- Utah disposal facility li- treated). port license will not exceed 5 censed by the State of Utah. kilograms (kg) special nu- Materials that meet domestic clear material; 1.0 x 106 kg license conditions for unre- natural/depleted uranium; 20 stricted release may be re- TBq transuranics (except leased. Nonconforming ma- Pu); and 600 TBq of all terials would be returned to other radionuclides. the generator (see associ- ated export license applica- tion XW013).

Dated this 5th day of February 2008 at Federal Regulations (10 CFR) section Reading Room at http://www.nrc.gov/ Rockville, Maryland. 50.69, ‘‘Risk-informed categorization reading-rm/doc-collections. RGs are also For the Nuclear Regulatory Commission. and treatment of structures, systems, available for inspection at the NRC’s Scott W. Moore, and components for nuclear power Public Document Room (PDR), Room Deputy Director, Office of International reactors,’’ (69 FR 68008) to permit O–1F21, One White Flint North, 11555 Programs. power reactor licensees and license Rockville Pike, Rockville, Maryland [FR Doc. E8–2484 Filed 2–8–08; 8:45 am] applicants to implement an alternative 20852–2738. The PDR’s mailing address BILLING CODE 7590–01–P regulatory framework with respect to is U.S. NRC PDR, Washington, DC ‘‘special treatment,’’ where special 20555–0001. The PDR staff can be treatment refers to those requirements reached by telephone at 301–415–4737 NUCLEAR REGULATORY that provides increased quality or 800–397–4209, by fax at 301–415– COMMISSION assurance beyond normal industrial 3548, and by e-mail to [email protected]. practices that structures, systems, and RGs are not copyrighted and NRC Withdrawal of Regulatory Guide components (SSCs) perform their approval is not required to reproduce them. AGENCY: Nuclear Regulatory design-basis functions. In support of 10 Commission. CFR 50.69, the staff issued RG 1.201, Dated at Rockville, Maryland, this 4th day ACTION: Notice of Withdrawal of ‘‘Guidelines for Categorizing Structures, of February, 2008. Regulatory Guide 1.176. Systems and Components in Nuclear For the Nuclear Regulatory Commission. Power Plants According to Their Safety Andrea D. Valentin, FOR FURTHER INFORMATION CONTACT: Significance,’’ in January 2006 for trial Chief, Regulatory Guide Development Branch, Christina Antonescu, Reactor System use. This new framework, consisting of Division of Engineering, Office of Nuclear Engineer, Division of Engineering, the rule along with RG 1.201, has made Regulatory Research. Regulatory Guide Development Branch, the guidance in RG 1.176 obsolete. [FR Doc. E8–2423 Filed 2–8–08; 8:45 am] Office of Nuclear Reactor Research, U.S. II. Further Information BILLING CODE 7590–01–P Nuclear Regulatory Commission, Washington, DC 20555–0001, telephone: The withdrawal of RG 1.176 does not, 301–415–6792 or e-mail: in and of itself, alter any prior or NUCLEAR REGULATORY [email protected]. existing licensing commitments based COMMISSION on its use. The current version of RG SUPPLEMENTARY INFORMATION: 1.176 represents a method that is no Withdrawal of Regulatory Guide I. Introduction longer acceptable to the staff. RGs may AGENCY: Nuclear Regulatory The Nuclear Regulatory Commission be withdrawn when their guidance is Commission. (NRC) is withdrawing Regulatory Guide superseded by congressional action, the ACTION: Notice of withdrawal of (RG) 1.176, ‘‘An Approach for Plant- methods or techniques described in the Regulatory Guide 1.150. Specific, Risk-Informed RG no longer describe an acceptable Decisionmaking: Graded Quality approach, or the RG does not provide FOR FURTHER INFORMATION CONTACT: Assurance,’’ which was published in useful information. Christina Antonescu, Reactor System August 1998, but has been superseded RGs are available for inspection or Engineer, Division of Engineering, by subsequent rulemaking. downloading through the NRC’s public Regulatory Guide Development Branch, In November 2004, the NRC Web site under ‘‘Regulatory Guides’’ Office of Nuclear Regulatory Research, promulgated Title 10 of the Code of collection in the NRC’s Electronic U.S. Nuclear Regulatory Commission,

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Washington, DC 20555–0001, telephone: For the Nuclear Regulatory Commission. registered investment companies and 301–415–6792 or e-mail: [email protected]. Andrea D.Valentin, interests or participation in an insurance company separate account SUPPLEMENTARY INFORMATION: Chief, Regulatory Guide Development Branch, Division of Engineering, Office of Nuclear and those who solicit accounts for I. Introduction Regulatory Research. federally insured savings and loan [FR Doc. E8–2424 Filed 2–8–08; 8:45 am] associations, provided that such persons The U.S. Nuclear Regulatory BILLING CODE 7590–01–P promptly transmit all funds and Commission (NRC) is withdrawing securities and hold no customer funds without replacement Regulatory Guide and securities. The Rule also does not (RG) 1.150, ‘‘Ultrasonic Testing of SECURITIES AND EXCHANGE apply to certain broker-dealers required Reactor Vessel Welds During Preservice COMMISSION to register only because they effect and Inservice Examinations,’’ which transactions in securities futures was published in February 1983, Proposed Extension of Existing products. because it has been superseded by Title Collection; Comment Request The information obtained from Rule 10 of the Code of Federal Regulations 17a–13 is used as an inventory control Upon Written Request, Copies Available (10 CFR) section 50.55a(g)(6)(ii)(C)(1), device to monitor a broker-dealer’s From: U.S. Securities and Exchange ability to account for all securities held, ‘‘Inservice inspection requirements,’’ Commission, Office of Investor in transfer, in transit, pledged, loaned, incorporation by reference of an Education and Advocacy, borrowed, deposited, or otherwise American Society of Mechanical Washington, DC 20549–0213. subject to the firm’s control or direction. Engineers (ASME) standard. Extension: Discrepancies between the securities Specifically, 10 CFR Rule 17a–13; OMB Control No. 3235–0035; counts and the broker-dealer’s records 50.55a(g)(6)(ii)(C)(1) requires both SEC File No. 270–27. alert the Commission and the Self Regulatory Organizations (‘‘SROs’’) to preservice and inservice inspection Notice is hereby given that, pursuant activities to be performed using those firms having problems in their to the Paperwork Reduction Act of 1995 back offices. personnel, equipment, and procedures (44 U.S.C. 3501 et seq.), the Securities qualified in accordance with the ASME, Currently, there are approximately and Exchange Commission 5,700 broker-dealers registered with the Boiler and Pressure Vessel Code, section (‘‘Commission’’) is soliciting comments XI, Appendix VIII. Commission. However, given the on the collection of information variability in their businesses, it is II. Further Information provided for in the following rule: Rule difficult to quantify how many hours 17a–13 (17 CFR 240.17a–13) under the per year each broker-dealer spends The withdrawal of RG 1.150 does not, Securities Exchange Act of 1934 (15 complying with the Rule. As noted, the in and of itself, alter any prior or U.S.C. 78 et seq.). The Commission Rule requires a respondent to account existing licensing commitments based plans to submit a request for approval for all securities in its possession. Many on its use. The current version of RG of extension of the existing collection of respondents hold few, if any, securities; 1.150 represents a method that is no information to the Office of while others hold large quantities. longer acceptable to the staff. RGs may Management and Budget. Therefore, the time burden of complying be withdrawn when their guidance is Rule 17a–13(b) (17 CFR 17a–13(b)) with the Rule will depend on superseded by congressional action, the generally requires that at least once each respondent-specific factors, including methods or techniques described in the calendar quarter, all registered brokers size, number of customers, and RG no longer describe an acceptable and dealers physically examine and proprietary trading activity. The staff count all securities held and account for approach, or the RG does not provide estimates that the average time spent per all other securities not in their useful information. respondent on the rule is 100 hours per possession, but subject to the broker- year. This estimate takes into account RGs are available for inspection or dealer’s control or direction. Any the fact that more than half the 5,700 downloading through the NRC’s public discrepancies between the broker- respondents—according to financial Web site in the ‘‘Regulatory Guides’’ dealer’s securities count and the firm’s reports filed with the Commission—may collection of the NRC’s Electronic records must be noted and, within seven spend little or no time in complying Reading Room at http://www.nrc.gov/ days, the unaccounted for difference with the rule, given that they do not do reading-rm/doc-collections. RGs are also must be recorded in the firm’s records. a public securities business or do not available for inspection at the NRC’s Rule 17a–13(c) (17 CFR 17a–13(c)) hold inventories of securities. For these Public Document Room (PDR), Room provides that under specified reasons, the staff estimates that the total O–1F21, One White Flint North, 11555 conditions, the securities counts, compliance burden per year is 570,000 Rockville Pike, Rockville, Maryland examination, and verification of the hours (5,700 respondents × 100 hours/ 20852–2738. The PDR’s mailing address broker-dealer’s entire list of securities respondent). is U.S. NRC PDR, Washington, DC may be conducted on a cyclical basis Written comments are invited on: (a) 20555–0001. The PDR staff can be rather than on a certain date. Although Whether the proposed collection of reached by telephone at 301–415–4737 Rule 17a–13 does not require filing a information is necessary for the proper or 800–397–4209, by fax at 301–415– report with the Commission, performance of the functions of the 3548, and by e-mail to [email protected]. discrepancies between a broker-dealer’s Commission, including whether the records and the securities counts may be information has practical utility; (b) the RGs are not copyrighted and NRC required to be reported, for example, as accuracy of the Commission’s estimates approval is not required to reproduce a loss on Form X–17a–5 (17 CFR of the burden of the proposed collection them. 248.617), which must be filed with the of information; (c) ways to enhance the Dated at Rockville, Maryland, this 4th day Commission under Rule 17a–5 (17 CFR quality, utility, and clarity of the of February, 2008. 17a–5). Rule 17a–13 exempts broker- information collected; and (d) ways to dealers that limit their business to the minimize the burden of the collection of sale and redemption of securities of information on respondents, including

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through the use of automated collection An agency may not conduct or December 26, 2007, and January 14, techniques or other forms of information sponsor, and a person is not required to 2008. technology. Consideration will be given respond to, a collection of information HEARING OR NOTIFICATION OF HEARING: An to comments and suggestions submitted unless it displays a currently valid order granting the requested relief will in writing within 60 days of this control number. be issued unless the Commission orders publication. Written comments regarding the a hearing. Interested persons may Comments should be directed to: above information should be directed to request a hearing by writing to the R. Corey Booth, Director/Chief the following persons: (i) Desk Officer Commission’s Secretary and serving Information Officer, Securities and for the Securities and Exchange applicants with a copy of the request, Exchange Commission, c/o Shirley Commission, Office of Information and personally or by mail. Hearing requests Martinson, 6432 General Green Way, Regulatory Affairs, Office of should be received by the Commission Alexandria, Virginia 22312; or Management and Budget, Room 10102, by 5:30 p.m. on February 26, 2008, and comments may be sent by e-mail to: New Executive Office Building, should be accompanied by proof of [email protected]. Comments must Washington, DC 20503 or send an service on applicants, in the form of an be submitted within 60 days of this e-mail to affidavit or, for lawyers, a certificate of _ _ notice. Alexander T. [email protected]; and service. Hearing requests should state Dated: February 4, 2008. (ii) R. Corey Booth, Director/Chief the nature of the writer’s interest, the Information Officer, Office of Florence E. Harmon, reason for the request, and the issues Information Technology, Securities and Deputy Secretary. contested. Persons who wish to be Exchange Commission, C/O Shirley notified of a hearing may request [FR Doc. E8–2443 Filed 2–8–08; 8:45 am] Martinson, 6432 General Green Way, notification by writing to the BILLING CODE 8011–01–P Alexandria, VA 22312; or send e-mail Commission’s Secretary. _ to: PRA [email protected]. Comments ADDRESSES: Secretary, U.S. Securities must be submitted to OMB within 30 and Exchange Commission, 100 F SECURITIES AND EXCHANGE days of this notice. COMMISSION Street, NE., Washington, DC 20549– Dated: February 4, 2008. 1090. Applicants: Advisor and Trust, Submission for OMB Review; Florence E. Harmon, 237 Park Avenue, New York, New York Comment Request; Deputy Secretary. 10017; Distributor, 1290 Broadway, [FR Doc. E8–2444 Filed 2–8–08; 8:45 am] Suite 1100, Denver, CO 80203. Upon Written Request, Copies Available BILLING CODE 8011–01–P FOR FURTHER INFORMATION CONTACT: From: Securities and Exchange Laura J. Riegel, Senior Counsel, at (202) Commission, Office of Investor 551–6873, or Marilyn Mann, Branch Education and Advocacy, SECURITIES AND EXCHANGE Chief, at (202) 551–6821 (Division of Washington, DC 20549–0213 COMMISSION Investment Management, Office of Extension: Investment Company Regulation). Rule 425; OMB Control No. 3235–0521; [Investment Company Act Release No. SEC File No. 270–462. 28143; 812–13352] SUPPLEMENTARY INFORMATION: The following is a summary of the Notice is hereby given that, pursuant Bear Stearns Asset Management, Inc., application. The complete application to the Paperwork Reduction Act of 1995 et al.; Notice of Application may be obtained for a fee at the (44 U.S.C. 3501 et seq.), the Securities Commission’s Public Reference Desk, February 5, 2008. and Exchange Commission 100 F Street, NE., Washington, DC AGENCY: Securities and Exchange (‘‘Commission’’) has submitted to the 20549–0102 (tel. 202–551–5850). Office of Management and Budget the Commission (‘‘Commission’’). request for extension of the previously ACTION: Notice of an application for an Applicants’ Representations approved collection of information order under section 6(c) of the 1. The Trust is an open-end discussed below. Investment Company Act of 1940 management investment company Rule 425 (17 CFR 230.425) under the (‘‘Act’’) for an exemption from sections registered under the Act and formed as Securities Act of 1933 (15 U.S.C. 77a et 2(a)(32), 5(a)(1) and 22(d) of the Act and a Delaware statutory trust. The Trust is seq.) requires the filing of certain rule 22c–1 under the Act. organized as a series fund with one prospectuses and communications initial series: Bear Stearns Current Yield under Rule 135 (17 CFR 230.135) and APPLICANTS: Bear Stearns Asset Fund (the ‘‘Current Yield Fund’’). The Rule 165 (17 CFR 230.165) in Management, Inc. (the ‘‘Advisor’’), investment objective of the Current connection with business combination ALPS Distributors, Inc. (the Yield Fund will be to seek as high a transactions. The purpose of the rule is ‘‘Distributor’’), and Bear Stearns Active level of current income as is consistent to permit more oral and written ETF Trust (the ‘‘Trust’’). with the preservation of capital and communications with shareholders SUMMARY OF APPLICATION: Applicants liquidity by investing primarily in short- about tender offers, mergers and other request an order that permits (a) series term debt obligations, repurchase business combination transactions on a of certain open-end management agreements and reverse repurchase more timely basis, so long as the written investment companies to issue shares agreements that meet certain minimum communications are filed on the date of (‘‘ETS’’) redeemable in large ratings requirements (or if unrated, that first use. The information provided aggregations only (‘‘Creation Unit the Advisor determines are of under Rule 425 is made available to the Aggregations’’) and (b) secondary comparable quality). The Current Yield public upon request. Also, the market transactions in ETS to occur at Fund’s portfolio will have an average information provided under Rule 425 is negotiated market prices. dollar-weighted maturity of mandatory. Approximately 3,700 issuers FILING DATES: The application was filed approximately 180 days. file communications under Rule 425 at on December 21, 2006 and amended on 2. The Advisor plans to introduce an estimated .25 hours per response for August 8, 2007, September 14, 2007, future series of the Trust or of other a total of 925 annual burden hours. November 5, 2007, December 10, 2007, open-end management investment

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companies (‘‘Future Funds’’). The 5. An investor purchasing a Creation include institutional investors and Future Funds will invest primarily in Unit Aggregation from a Fund will be arbitrageurs. The Exchange Specialist, investment grade fixed-income charged a fixed fee (‘‘Transaction Fee’’) in providing a fair and orderly securities (or, if unrated, that the to protect the continuing ETS holders secondary market for the ETS, also may Advisor determines are of a comparable against the possible dilutive purchase Creation Unit Aggregations for quality).1 Applicants request that the transactional expenses in connection use in its market-making activities. order apply to any such Future Funds. with the purchase of Creation Unit Applicants expect that secondary Any Future Fund will be (a) advised by Aggregations. From time to time, a Fund market purchasers of ETS will include the Advisor or an entity controlled by or may waive or modify the Transaction both institutional investors and retail under common control with the Fee. The exact amounts of the investors.4 Applicants expect that the Advisor, and (b) comply with the terms Transaction Fee will be determined price at which the ETS trade will be and conditions of the application.2 The separately for each Fund. The disciplined by arbitrage opportunities Current Yield Fund and Future Funds Transaction Fee relevant to each Fund created by the ability to continually together are the ‘‘Funds.’’ Each Fund will be fully disclosed in the prospectus purchase or redeem Creation Unit will operate as an actively-managed (‘‘Prospectus’’) and the method of Aggregations at their NAV, which exchange-traded fund (‘‘ETF’’). calculating that Transaction Fee will be should ensure that the ETS will not 3. The Advisor, a New York fully disclosed in the statement of trade at a material discount or premium corporation, is a wholly-owned additional information of such Fund. in relation to their NAV. subsidiary of The Bear Stearns All orders to purchase Creation Unit 8. ETS will not be individually Companies Inc., a holding company that Aggregations will be placed with the redeemable, and owners of ETS may through its subsidiaries (including its Distributor by or through an Authorized acquire those ETS from a Fund, or principal subsidiary, Bear, Stearns & Participant and it will be the tender such ETS for redemption to the Co., Inc.) is a United States investment Distributor’s responsibility to transmit Fund, in Creation Unit Aggregations banking, securities trading and such orders to the Trust. The Distributor only. To redeem, an investor will have brokerage firm serving U.S. and foreign also will be responsible for delivering to accumulate enough ETS to constitute corporations, governments, and the Prospectus to those persons a Creation Unit Aggregation. institutional and individual investors. purchasing Creation Unit Aggregations, Redemption orders must be placed by or The Advisor is registered as an and for maintaining records of both the through an Authorized Participant. A investment adviser under the orders placed with it and the redeeming investor may pay a Investment Advisers Act of 1940 (the acknowledgments furnished by it. In Transaction Fee, calculated in the same ‘‘Advisers Act’’) and will serve as addition, the Distributor will maintain a manner as a Transaction Fee payable in investment adviser to all the Funds. The record of the instructions given to the connection with purchases of Creation Advisor may retain other investment Trust to implement the delivery of ETS. Unit Aggregations. advisers to act as ‘‘sub-advisors’’ to 6. Purchasers of ETS in Creation Unit 9. Neither the Trust nor any Fund will Future Funds (‘‘Subadvisors’’). Any Aggregations may hold such ETS or may be advertised, marketed or otherwise Subadvisor will be registered under the sell such ETS into the secondary held out as an ‘‘open-end investment Advisers Act. The Distributor, a broker- market. ETS will be listed and traded on company’’ or a ‘‘mutual fund.’’ Instead, dealer registered under the Securities a national securities exchange as each Fund will be marketed as an Exchange Act of 1934, will act as each defined in section 2(a)(26) of the Act ‘‘actively-managed exchange-traded Fund’s distributor and principal (‘‘Exchange’’). It is expected that one or fund.’’ All marketing materials that describe the method of obtaining, underwriter. more member firms of a listing 4. ETS of the Funds will be sold in buying or selling ETS, or refer to Exchange will be designated to act as a Creation Unit Aggregations initially of redeemability, will prominently specialist and maintain a market for ETS 50,000 ETS. All orders to purchase disclose that ETS are not individually on the Exchange (the ‘‘Exchange Creation Unit Aggregations must be redeemable and that the owners of ETS Specialist’’). Prices of ETS trading on an placed with the Distributor by or may purchase or redeem ETS from a Exchange will be based on the current through a party that has entered into an Fund in Creation Unit Aggregations bid/offer market.3 ETS sold in the agreement with the Distributor only. The same approach will be secondary market will be subject to (‘‘Authorized Participant’’). An followed in shareholder reports and customary brokerage fees or Authorized Participant must be a other communications and investor participant in the Depository Trust commissions. educational materials issued or 7. Applicants expect that purchasers Company (‘‘DTC,’’ and such participant, circulated in connection with the ETS. of Creation Unit Aggregations will ‘‘DTC Participant’’). Creation Unit The Funds will provide copies of their Aggregations will be created and annual and semi-annual shareholder 3 The Exchange intends to disseminate every 15 redeemed solely in cash at net asset seconds, during regular trading hours, through the reports to DTC Participants for value (‘‘NAV’’). Each Fund will sell and facilities of the Consolidated Tape Association, the distribution to beneficial owners of ETS. redeem Creation Unit Aggregations on indicative intra-day value (‘‘IIV’’) of each Fund on 10. The Funds’ Web site, which will each day required by section 22(e) of the a per-ETS basis. An independent third party be publicly available prior to the public calculator will calculate the IIV during the hours of Act (each such day, a ‘‘Business Day’’). trading on the Exchange by dividing (a) the sum of offering of ETS, will include the the estimated amount of cash held in the applicable Prospectus and other information about 1 With respect to both the Current Yield Fund and Fund’s portfolio, the estimated amount of accrued the Funds that is updated on a daily the Future Funds, if a security satisfies the interest owing to the applicable Fund and the basis, including the reported mid-point minimum rating requirement at the time of estimated value of the securities held in the of the bid-ask spread at the time of the purchase and is subsequently downgraded below applicable Fund’s portfolio, minus the estimated that rating, the Advisor will determine what action, amount of liabilities, as of the time of calculation calculation of NAV (‘‘Bid/Ask Price’’). including the sale of the security, is in the best by (b) the total number of outstanding ETS of the interest of the applicable Fund and its shareholders. Fund. Applicants assert that the calculation and 4 ETS will be registered in book-entry form only. 2 All entities that currently intend to rely on the dissemination of IIV will allow for efficient DTC or its nominee will be the registered owner of order are named as applicants. Any other entity that arbitrage and thus avoid the possibility that all outstanding ETS. DTC or DTC Participants will relies on the order in the future will comply with significant deviations could develop between the maintain records reflecting beneficial owners of the terms and conditions of the application. market price of ETS and NAV. ETS.

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On each Business Day, before the the secondary market at prices that do the market price of ETS and their NAV commencement of trading in ETS on the not vary substantially from their NAV. remains narrow. Exchange, each Fund will disclose on Section 22(d) of the Act and Rule 22c– Applicants’ Conditions its Web site the identities and quantities 1 under the Act of the portfolio securities and other The applicants agree that any order of assets held by the Fund that will form 4. Section 22(d) of the Act, among the Commission granting the requested the basis for the Fund’s calculation of other things, prohibits a dealer from relief will be subject to the following NAV at the end of the Business Day.5 selling a redeemable security, which is conditions: Applicants assert that the Web site currently being offered to the public by 1. Neither the Trust nor any of the disclosure of each Fund’s portfolio or through a principal underwriter, Funds will be advertised or marketed as securities and other assets will provide except at a current public offering price an open-end investment company or a a level of portfolio transparency that is described in the prospectus. Rule 22c– mutual fund. Each Fund’s Prospectus substantially similar to that of index- 1 under the Act generally requires that will prominently disclose that the Fund based ETFs. a dealer selling, redeeming, or is an ‘‘actively managed exchange- repurchasing a redeemable security do traded fund.’’ Each Prospectus also will Applicants’ Legal Analysis so only at a price based on its NAV. prominently disclose that ETS are not 1. Applicants request an order under Applicants state that secondary market individually redeemable and will section 6(c) of the Act granting an trading in ETS will take place at disclose that owners of ETS may acquire exemption from sections 2(a)(32), 5(a)(1) negotiated prices, not at a current those ETS from the Fund and tender and 22(d) of the Act and rule 22c–1 offering price described in the those ETS for redemption to a Fund in under the Act. Prospectus, and not at a price based on Creation Unit Aggregations only. Any 2. Section 6(c) of the Act provides that NAV. Thus, purchases and sales of ETS advertising material that describes the the Commission may exempt any in the secondary market will not comply purchase or sale of Creation Unit person, security or transaction, or any with section 22(d) of the Act and rule Aggregations or refers to redeemability class of persons, securities or 22c–1 under the Act. Applicants request will prominently disclose that ETS are transactions, from any provision of the an exemption under section 6(c) from not individually redeemable and that Act, if and to the extent that such these provisions. owners of ETS may acquire those ETS exemption is necessary or appropriate 5. Applicants assert that the concerns from a Fund and tender those ETS for in the public interest and consistent sought to be addressed by section 22(d) redemption to a Fund in Creation Unit with the protection of investors and the of the Act and rule 22c–1 under the Act Aggregations only. purposes fairly intended by the policy with respect to pricing are equally 2. Each Fund’s Prospectus will clearly and provisions of the Act. satisfied by the proposed method of disclose that, for purposes of the Act, pricing ETS. Applicants maintain that ETS are issued by a registered Sections 5(a)(1) and 2(a)(32) of the Act while there is little legislative history investment company, and that the 3. Section 5(a)(1) of the Act defines an regarding section 22(d), its provisions, acquisition of ETS by investment ‘‘open-end company’’ as a management as well as those of rule 22c–1, appear to companies and companies relying on investment company that is offering for have been designed to (a) prevent sections 3(c)(1) or 3(c)(7) of the Act is sale or has outstanding any redeemable dilution caused by certain riskless- subject to the restrictions of section security of which it is the issuer. trading schemes by principal 12(d)(1) of the Act, except as permitted Section 2(a)(32) of the Act defines a underwriters and contract dealers, (b) by an exemptive order that permits redeemable security as any security, prevent unjust discrimination or registered investment companies to other than short-term paper, under the preferential treatment among buyers, invest in a Fund beyond the limits in terms of which the holder, upon its and (c) assure an orderly distribution of section 12(d)(1), subject to certain terms presentation to the issuer, is entitled to investment company shares by and conditions, including that the receive approximately his proportionate eliminating price competition from registered investment company enter share of the issuer’s current net assets, dealers offering shares at less than the into an agreement with the Fund or the cash equivalent. Because ETS will published sales price and repurchasing regarding the terms of the investment. not be individually redeemable, shares at more than the published 3. The Web site for the Funds, which applicants request an order that would redemption price. is and will be publicly accessible at no 6. Applicants believe that none of permit each Fund, as a series of an charge, will contain the following these purposes will be thwarted by open-end management investment information, on a per-ETS basis, for permitting ETS to trade in the secondary company, to issue ETS that are each Fund: (a) The prior Business Day’s market at negotiated prices. Applicants redeemable in Creation Unit NAV and the Bid/Ask Price, and a state that (a) secondary market trading Aggregations only. Applicants state that calculation of the premium or discount in ETS does not involve the Funds as investors may purchase ETS in Creation of the Bid/Ask Price against such NAV; parties and cannot result in dilution of Unit Aggregations from each Fund and and (b) data in chart format displaying an investment in ETS, and (b) to the redeem Creation Unit Aggregations from the frequency distribution of discounts extent different prices exist during a each Fund. Applicants further state that and premiums of the Bid/Ask Price given trading day, or from day to day, because the market price of ETS will be against the NAV, within appropriate such variances occur as a result of third- disciplined by arbitrage opportunities, ranges, for each of the four previous party market forces, such as supply and investors should be able to sell ETS in calendar quarters (or for the life of the demand. Therefore, applicants assert Fund, if shorter). 5 Applicants note that under accounting that secondary market transactions in 4. The Prospectus and annual report procedures followed by the Funds, trades made on ETS will not lead to discrimination or for each Fund will also include: (a) the the prior Business Day (‘‘T’’) will be booked and preferential treatment among information listed in condition 3(b), (i) reflected in NAV on the current Business Day (‘‘T purchasers. Finally, applicants contend in the case of the Prospectus, for the + 1’’). Accordingly, the Funds will be able to disclose at the beginning of the Business Day the that the proposed distribution system most recently completed year (and the portfolio that will form the basis for the NAV will be orderly because arbitrage activity most recently completed quarter or calculation at the end of the Business Day. will ensure that the difference between quarters, as applicable) and (ii) in the

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case of the annual report, for the to deposit foreign currency and money securities that are denominated in the immediately preceding five years, as market securities into, and receive specified local currency and have applicable; and (b) the cumulative total foreign currency and money market remaining maturities of sixty days or return and the average annual total securities from, the series in connection less (‘‘Portfolio Securities’’). Applicants return based on NAV and Bid/Ask Price, with the purchase and redemption of state each New Fund is designed to calculated on a per ETS basis for one-, Creation Units. decrease in value when the value of the five- and ten-year periods (or life of the FILING DATES: The application was filed U.S. dollar increases relative to the Fund). on January 25, 2008. Applicants have applicable local currency and increase 5. As long as the Funds operate in agreed to file an amendment during the in value when the value of the U.S. reliance on the requested order, ETS notice period, the substance of which is dollar falls relative to the applicable will be listed on an Exchange. reflected in this notice. local currency. While the value of each 6. On each Business Day, before the HEARING OR NOTIFICATION OF HEARING: An New Fund’s Portfolio Securities is commencement of trading in ETS on order granting the requested relief will expected to be relatively constant in each Fund’s Exchange, the Fund will be issued unless the Commission orders local currency terms, a New Fund’s net disclose on its Web site the identities a hearing. Interested persons may asset value (‘‘NAV’’) will be expressed and quantities of the portfolio securities request a hearing by writing to the in U.S. dollars. Because of this, and other assets held by the Fund that Commission’s Secretary and serving fluctuations in the per Share NAV of will form the basis for the Fund’s applicants with a copy of the request, each New Fund will be caused by calculation of NAV at the end of the personally or by mail. Hearing requests fluctuations in the exchange rate Business Day. should be received by the Commission between U.S. dollars and the applicable 7. The requested order will expire on by 5:30 p.m. on February 26, 2008, and local currency. the effective date of any Commission should be accompanied by proof of 2. The Trust plans to offer future rule under the Act that provides relief service on applicants, in the form of an series that will hold money market permitting the operation of actively affidavit or, for lawyers, a certificate of securities denominated in a different managed exchange-traded funds. service. Hearing requests should state local currency than the New Funds For the Commission, by the Division of the nature of the writer’s interest, the (‘‘Future Funds’’). Applicants request Investment Management, pursuant to reason for the request, and the issues that the order apply to any such Future delegated authority. contested. Persons who wish to be Funds. Any Future Fund will be (a) Florence E. Harmon, notified of a hearing may request advised by the Adviser, and (b) comply Deputy Secretary. notification by writing to the with the terms and conditions of the [FR Doc. E8–2399 Filed 2–8–08; 8:45 am] Commission’s Secretary. order. The New Funds and the Future ADDRESSES BILLING CODE 8011–01–P : Secretary, U.S. Securities Funds together are the ‘‘New Funds.’’ and Exchange Commission, 100 F Each New Fund will operate as an Street, NE., Washington, DC 20549– actively-managed exchange-traded fund. SECURITIES AND EXCHANGE 1090. Applicants: Adviser and Trust, 3. The Adviser, a California COMMISSION c/o Barclays Global Investors, N.A., 45 Fremont Street, San Francisco, CA corporation, is registered as an [Investment Company Act Release No. 94105; Distributor, One Freedom Valley investment adviser under the 28146; 812–13485] Drive, Oaks, PA 19456. Investment Advisers Act of 1940 (‘‘Advisers Act’’) and will serve as FOR FURTHER INFORMATION CONTACT: Barclays Global Fund Advisors, et al.; investment adviser to each New Fund. Notice of Application Bruce R. MacNeil, Senior Counsel, at (202) 551–6817, or Michael W. Mundt, The Distributor, a Pennsylvania February 6, 2008. Assistant Director, at (202) 551–6821 corporation, is registered under the AGENCY: Securities and Exchange (Division of Investment Management, Securities Exchange Act of 1934 Commission (‘‘Commission’’). Office of Investment Company (‘‘Exchange Act’’) and serves as principal underwriter and distributor ACTION: Notice of an application for an Regulation). for the New Funds. order under section 6(c) of the SUPPLEMENTARY INFORMATION: The Investment Company Act of 1940 following is a summary of the 4. Shares of the New Funds will be (‘‘Act’’) for an exemption from sections application. The complete application sold in Creation Units of 25,000 or 2(a)(32), 5(a)(1) and 22(d) of the Act and may be obtained for a fee at the more. All orders to purchase Creation rule 22c–1 under the Act, and under Commission’s Public Reference Desk, Units must be placed with the sections 6(c) and 17(b) of the Act for an 100 F Street, NE., Washington, DC Distributor by or through an exemption from sections 17(a)(1) and 20549–0102 (tel. 202–551–5850). ‘‘Authorized Participant,’’ an entity that (a)(2) of the Act. has entered into an agreement with the Applicants’ Representations Distributor and that is a participant in APPLICANTS: Barclays Global Fund 1. The Trust, an open-end the Depository Trust Company (‘‘DTC,’’ Advisors (the ‘‘Adviser’’), iShares Trust management investment company and such participant, ‘‘DTC (the ‘‘Trust’’) and SEI Investments registered under the Act, is organized as Participant’’). Shares of each New Fund Distribution Co. (the ‘‘Distributor’’). a Delaware statutory trust and as a series will be sold in Creation Units in SUMMARY OF APPLICATION: Applicants fund with multiple series. The Trust exchange for a designated amount of the request an order that permits: (a) Series will offer two new series that will invest applicable local currency (the of certain open-end management substantially all of their assets in foreign ‘‘Currency Deposit’’). Each New Fund investment companies to issue shares money market securities: iShares Euro reserves the right to permit or require (‘‘Shares’’) redeemable in large Currency Fund and iShares Pound the substitution of an amount of aggregations only (‘‘Creation Units’’); (b) Sterling Currency Fund (each a ‘‘New securities denominated in the secondary market transactions in Shares Fund’’). Each New Fund will seek to applicable local currency (‘‘Deposit to occur at negotiated market prices; and preserve capital and maintain stability Securities,’’ together with the Currency (c) certain affiliated persons of the series of principal by investing in short-term Deposit, the ‘‘Fund Deposit’’) to replace

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a portion of the Currency Deposit.1 An 7. Shares will not be individually calculation of NAV at the end of the investor purchasing a Creation Unit redeemable, and owners of Shares may Business Day.4 from a New Fund will be charged a fee acquire those Shares from a New Fund, Applicants’ Legal Analysis (‘‘Transaction Fee’’) to cover certain or tender such Shares for redemption to transaction costs associated with the the New Fund, in Creation Units only. 1. Applicants request an order under issuance of Creation Units. The To redeem, an investor will have to section 6(c) of the Act granting an Distributor will maintain a record of accumulate enough Shares to constitute exemption from sections 2(a)(32), 5(a)(1) Creation Unit purchases. a Creation Unit. Redemption orders and 22(d) of the Act and rule 22c–1 5. Purchasers of Shares in Creation must be placed by or through an under the Act; and under sections 6(c) and 17(b) of the Act granting an Units may hold such Shares or may sell Authorized Participant. An investor exemption from sections 17(a)(1) and such Shares into the secondary market. redeeming a Creation Unit generally (a)(2) of the Act. Shares will be listed on a national will receive a specified amount of local 2. Section 6(c) of the Act provides that securities exchange, as defined in currency (the ‘‘Currency Redemption the Commission may exempt any section 2(a)(26) of the Act (a ‘‘Listing Amount’’). Each New Fund reserves the person, security or transaction, or any Market’’). It is expected that one or more right to substitute Portfolio Securities class of persons, securities or member firms of a Listing Market will for all or a portion of the Currency transactions, from any provision of the 3 be designated to act as a specialist and Redemption Amount. A redeeming Act, if and to the extent that such maintain a market for Shares on the investor may pay a Transaction Fee to exemption is necessary or appropriate Listing Market (the ‘‘Specialist’’). Prices offset transfer and other transaction in the public interest and consistent of Shares trading on a Listing Market costs that may be incurred by the New with the protection of investors and the will be based on the current bid/offer Fund in processing the redemption. purposes fairly intended by the policy market. Shares sold in the secondary 8. Neither the Trust nor any and provisions of the Act. Section 17(b) market will be subject to customary individual New Fund will be marketed of the Act authorizes the Commission to brokerage commissions and charges. or otherwise held out as an ‘‘open-end exempt a proposed transaction from 6. Applicants expect that purchasers investment company’’ or a ‘‘mutual section 17(a) of the Act if evidence of Creation Units will include fund.’’ The prospectus (‘‘Prospectus’’) establishes that the terms of the institutional investors and arbitrageurs for each New Fund will prominently transaction, including the consideration (which could include institutional disclose that the New Fund is an to be paid or received, are reasonable investors). The Specialist, in providing ‘‘actively-managed exchange-traded and fair and do not involve a fair and orderly secondary market for fund.’’ All marketing materials that overreaching on the part of any person the Shares, also may purchase Creation describe the method of obtaining, concerned, and the proposed Units for use in its market-making buying or selling Shares, or refer to transaction is consistent with the activities. Applicants expect that redeemability, will prominently policies of the registered investment secondary market purchasers of Shares disclose that Shares are not individually company and the general provisions of will include both institutional investors redeemable and that the owners of the Act. and retail investors.2 Applicants expect Shares may purchase or redeem Shares Sections 5(a)(1) and 2(a)(32) of the Act that the price at which the Shares trade from a New Fund in Creation Units will be disciplined by arbitrage 3. Section 5(a)(1) of the Act defines an only. The same approach will be ‘‘open-end company’’ as a management opportunities created by the ability to followed in the SAI, shareholder reports continually purchase or redeem investment company that is offering for and investor educational materials sale or has outstanding any redeemable Creation Units at their NAV, which issued or circulated in connection with should ensure that the Shares will not security of which it is the issuer. the Shares. The New Funds will provide Section 2(a)(32) of the Act defines a trade at a material discount or premium copies of their annual and semi-annual in relation to their NAV. redeemable security as any security, shareholder reports to DTC Participants other than short-term paper, under the for distribution to beneficial owners of terms of which the holder, upon its 1 It is intended that, on each day that a New Fund Shares. is open, including as required by section 22(e) of presentation to the issuer, is entitled to the Act (‘‘Business Day’’), the New Fund will make 9. The New Funds’ Web site, which receive approximately his proportionate available the estimated Fund Deposit. The will be publicly available at no charge, share of the issuer’s current net assets, estimated Fund Deposit is an amount per creation unit expressed in the applicable local currency will include information about the New or the cash equivalent. Because Shares representing the previous Business Day’s Fund Funds that is updated on a daily basis, will not be individually redeemable, Deposit plus the current Business Day’s accrued including the mid-point of the bid-ask applicants request an order that would expenses, interest and income. To the extent a New spread at the time of the calculation of permit each New Fund, as a series of an Fund requires a substitution of Deposit Securities open-end management investment for a portion of the Currency Deposit, a description NAV (‘‘Bid/Ask Price’’). On each of the Deposit Securities, including the names and Business Day, before the company, to issue Shares that are amount of the Deposit Securities required to be commencement of trading in Shares on redeemable in Creation Units only. contributed, will be made available prior to the the Listing Market, each New Fund will Applicants state that investors may opening of business on the Listing Market. The purchase Shares in Creation Units from Listing Market, or a third-party financial disclose the identities and quantities of information provider, intends to disseminate, every the Portfolio Securities and other assets each New Fund and redeem Creation 15 seconds, during regular trading hours, an held in the New Fund portfolio that will Units from each New Fund. Applicants approximate amount per Share representing the form the basis for the New Fund’s NAV from the prior Business Day adjusted to reflect 4 Applicants note that under accounting the current Business Day’s expenses, interest and procedures followed by the New Funds, trades income calculated using the amortized cost method 3 To the extent a New Fund requires a made on the prior Business Day (‘‘T’’) will be and the current currency spot rate. substitution of Portfolio Securities for the Currency booked and reflected in NAV on the current 2 Shares will be registered in book-entry form Redemption Amount, a description of the Portfolio Business Day (‘‘T + 1’’). Accordingly, the Funds only. DTC or its nominee will be the registered Securities, including the names and amount of the will be able to disclose at the beginning of the owner of all outstanding Shares. DTC or DTC Portfolio Securities, will be made available prior to Business Day the portfolio that will form the basis Participants will maintain records reflecting the opening of business on the applicable Listing for the NAV calculation at the end of the Business beneficial owners of Shares. Market. Day.

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further state that because the market discrimination or preferential treatment 1. Each New Fund’s Prospectus will price of Shares will be disciplined by among purchasers. Finally, applicants clearly disclose that, for purposes of the arbitrage opportunities, investors should contend that the proposed distribution Act, Shares are issued by the New Fund be able to sell Shares in the secondary system will be orderly because arbitrage and that the acquisition of Shares by market at prices that do not vary activity will ensure that the difference investment companies and companies substantially from their NAV. between the market price of Shares and relying on Sections 3(c)(1) or 3(c)(7) of the Act is subject to the restrictions of Section 22(d) of the Act and Rule 22c– their NAV remains narrow. Section 12(d)(1) of the Act, except as 1 under the Act Sections 17(a)(1) and (2) of the Act permitted by an exemptive order that 4. Section 22(d) of the Act, among 7. Section 17(a)(1) and (2) of the Act permits registered investment other things, prohibits a dealer from generally prohibit an affiliated person of companies to invest in a New Fund selling a redeemable security, which is a registered investment company, or an beyond the limits of Section 12(d)(1), currently being offered to the public by affiliated person of such a person subject to certain terms and conditions, or through a principal underwriter, (‘‘second tier affiliate’’), from selling any including that the registered investment except at a current public offering price security to or purchasing any security company enter into an agreement with described in the prospectus. Rule 22c– from the company. Section 2(a)(3) of the the New Fund regarding the terms of the 1 under the Act generally requires that Act defines ‘‘affiliated person’’ to investment. a dealer selling, redeeming, or include any person directly or indirectly 2. As long as each New Fund operates repurchasing a redeemable security do owning, controlling, or holding with in reliance on the requested order, the so only at a price based on its NAV. power to vote 5% or more of the Shares will be listed on a Listing Applicants state that secondary market outstanding voting securities of the Market. trading in Shares will take place at other person and any person directly or 3. Neither the Trust nor any New negotiated prices, not at a current indirectly controlling, controlled by, or Fund will be advertised or marketed as offering price described in the under common control with, the other an open-end investment company or a prospectus, and not at a price based on person. Section 2(a)(9) of the Act mutual fund. Each New Fund’s NAV. Thus, purchases and sales of provides that a control relationship will Prospectus will prominently disclose Shares in the secondary market will not be presumed where one person owns that the New Fund is an ‘‘actively comply with section 22(d) of the Act managed exchange-traded fund.’’ Each more than 25% of another person’s and rule 22c–1 under the Act. New Fund’s Prospectus will voting securities. Applicants request an Applicants request an exemption under prominently disclose that Shares are not exemption from 17(a) under sections section 6(c) from these provisions. individually redeemable and will 6(c) and 17(b), to permit in-kind 5. Applicants assert that the concerns disclose that the owners of Shares may purchases and redemptions by persons sought to be addressed by section 22(d) acquire those Shares from a New Fund that are affiliated persons or second-tier of the Act and rule 22c–1 under the Act and tender those Shares for redemption affiliates of the New Funds by virtue of with respect to pricing are equally to a New Fund in Creation Units only. holding 5% or more, or in excess of satisfied by the proposed method of Any advertising material that describes 25%, of the outstanding Shares of one pricing Shares. Applicants maintain that the purchase or sale of Creation Units or while there is little legislative history or more of the New Funds. refers to redeemability will prominently regarding section 22(d), its provisions, 8. Applicants state that although there disclose that Shares are not individually as well as those of rule 22c–1, appear to is no present intention to permit in-kind redeemable and that owners of Shares have been designed to (a) prevent purchases, applicants contend that no may acquire those Shares from a New dilution caused by certain riskless- useful purpose would be served by Fund and tender those Shares for trading schemes by principal prohibiting affiliated persons from redemption to a New Fund in Creation underwriters and contract dealers, (b) making in-kind purchases or Units only. prevent unjust discrimination or redemptions of Shares in Creation 4. The Web site for the Trust, which preferential treatment among buyers Units. The deposit procedures for in- will be publicly accessible at no charge, resulting from sales at different prices, kind purchases and the redemption will contain the following information, and (c) assure an orderly distribution of procedures for in-kind redemptions of on a per Share basis, for each New investment company shares by Creation Units will be the same for all Fund: (a) The prior Business Day’s NAV eliminating price competition from purchases and redemptions. Deposit and the Bid/Ask Price and a calculation dealers offering shares at less than the Securities will be valued under the of the premium or discount of the Bid/ published sales price and repurchasing same objective standards applied to Ask Price against such NAV; and (b) shares at more than the published valuing Portfolio Securities. Therefore, data in chart format displaying the redemption price. applicants state that in-kind purchases frequency distribution of discounts and 6. Applicants believe that none of and redemptions for which relief is premiums of the daily Bid/Ask Price these purposes will be thwarted by requested will afford no opportunity for against the NAV, within appropriate permitting Shares to trade in the the affiliated persons and second-tier ranges, for each of the four previous secondary market at negotiated prices. affiliates described above to effect a calendar quarters. Applicants state that (a) secondary transaction detrimental to other holders 5. The Prospectus and annual report market trading in Shares does not of Shares. Applicants also believe that for each New Fund will also include: (a) involve the Funds as parties and cannot these purchases and redemptions will The information listed in condition 4(b), result in dilution of an investment in not result in self-dealing or overreaching (i) in the case of the Prospectus, for the Shares, and (b) to the extent different by those persons of the New Fund. most recently completed year (and the prices exist during a given trading day, most recently completed quarter or Applicants’ Conditions or from day to day, such variances occur quarters, as applicable) and (ii) in the as a result of third-party market forces, The applicants agree that any order of case of the annual report, for the such as supply and demand. Therefore, the Commission granting the requested immediately preceding five years, as applicants assert that secondary market relief will be subject to the following applicable; and (b) the following data, transactions in Shares will not lead to conditions: calculated on a per Share basis for one,

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five and ten year periods (or life of the of the scheduled matters at the Closed SECURITIES AND EXCHANGE New Fund), (i) the cumulative total Meeting. COMMISSION return and the average annual total Commissioner Atkins, as duty officer, voted to consider the items listed for the [Release No. 34–57273; File No. SR– return based on NAV and Bid/Ask Price, NYSEArca–2008–06] and (ii) the cumulative total return of closed meeting in closed session. the relevant local currency against the The subject matters of the Open Self-Regulatory Organizations; NYSE U.S. dollar. Meeting scheduled for Wednesday, Arca, Inc.; Notice of Filing of Proposed 6. On each Business Day, before the February 13, 2008 will be: Rule Change Relating to the commencement of trading in Shares on 1. The Commission will consider whether Dissemination of the Index Value for a New Fund’s Listing Market, the New to propose amendments to its rules regarding Equity Index-Linked Securities Fund will disclose on its website the the circumstances under which a foreign identities and quantities of the money private issuer is required to register a class February 5, 2008. market securities and other assets held of equity securities under section 12(g) of the Pursuant to Section 19(b)(1) of the Exchange Act. by the New Fund that will form the Securities Exchange Act of 1934 2. The Commission will consider whether 1 2 basis for the New Fund’s calculation of (‘‘Act’’) and Rule 19b–4 thereunder, to propose a package of amendments to notice is hereby given that on January NAV at the end of the Business Day. various Commission rules and forms to 7. The Adviser and any subadviser, improve reporting by foreign private issuers. 11, 2008, NYSE Arca, Inc. (‘‘NYSE Arca’’ or ‘‘Exchange’’), through its directly or indirectly, will not cause any The amendments, if adopted, would allow wholly owned subsidiary, NYSE Arca Authorized Participant (or any investor foreign private issuer status to be tested once a year; change the deadline for annual reports Equities, Inc. (‘‘NYSE Arca Equities’’), on whose behalf an Authorized filed by foreign private issuers; revise the filed with the Securities and Exchange Participant may transact with the New annual report and registration statement Commission (‘‘Commission’’) the Fund) to acquire any Deposit Security forms used by foreign private issuers to proposed rule change as described in for a New Fund through a transaction in improve disclosure; and amend the rule Items I, II, and III below, which Items which the New Fund could not engage regarding going private transactions to reflect have been substantially prepared by the directly. recent regulatory changes. Exchange. The Commission is 8. The requested order will expire on 3. The Commission will consider whether to propose amendments to Part 2 of Form publishing this notice to solicit the effective date of any Commission ADV under the Investment Advisers Act of comments on the proposed rule change rule under the Act that provides relief 1940 and related rules. The proposed from interested persons. permitting the operation of actively- amendments, if adopted, would require managed exchange-traded funds. investment advisers to provide clients with I. Self-Regulatory Organization’s For the Commission, by the Division of narrative brochures containing plain English Statement of the Terms of Substance of Investment Management, pursuant to descriptions of the advisers’ businesses, the Proposed Rule Change delegated authority. services, and conflicts of interest. The proposal also would require advisers to The Exchange proposes to amend Florence E. Harmon, electronically file their brochures with the NYSE Arca Equities Rule Deputy Secretary. Commission, and the brochures would be 5.2(j)(6)(B)(I)(2)(c)(ii) to provide that the [FR Doc. E8–2451 Filed 2–8–08; 8:45 am] available to the public through the Exchange will commence delisting or BILLING CODE 8011–01–P Commission’s Web site. removal proceedings if the value of an 4. The Commission will, as required by index or composite value of the indexes section 109 of the Sarbanes-Oxley Act of underlying an issuance of Equity Index- SECURITIES AND EXCHANGE 2002, review the annual accounting support Linked Securities3 is no longer fee of the Financial Accounting Standards COMMISSION Board. calculated or widely disseminated on at least a 15-second basis with respect to Sunshine Act Meetings The subject matter of the Closed an index or indexes containing only Meeting scheduled for Friday, February securities listed on a national securities Notice is hereby given, pursuant to 15, 2008 will be: exchange, or on at least a 60-second the provisions of the Government in the Formal orders of investigation; basis with respect to an index or Sunshine Act, Public Law 94–409, that Institution and settlement of indexes containing foreign country the Securities and Exchange injunctive actions; securities. The text of the proposed rule Institution and settlement of Commission will hold the following change is available at the Exchange, the administrative proceedings of an meetings during the week of February Commission’s Public Reference Room, enforcement nature; 11, 2008: An Open Meeting will be held and http://www.nyse.com. on Wednesday, February 13, 2008 at 10 Resolution of litigation claims; and a.m., in the Auditorium, Room L–002, A regulatory matter regarding a II. Self-Regulatory Organization’s and a Closed Meeting will be held on financial institution. Statement of the Purpose of, and Friday, February 15, 2008 at 10 a.m. At times, changes in Commission Statutory Basis for, the Proposed Rule Commissioners, Counsel to the priorities require alterations in the Change Commissioners, the Secretary to the scheduling of meeting items. For further information and to In its filing with the Commission, the Commission, and recording secretaries ascertain what, if any, matters have been Exchange included statements will attend the Closed Meeting. Certain added, deleted or postponed, please concerning the purpose of, and basis for, staff members who have an interest in contact: the proposed rule change and discussed the matters may also be present. The Office of the Secretary at (202) any comments it received on the The General Counsel of the 551–5400. Commission, or his designee, has 1 15 U.S.C. 78s(b)(1). certified that, in his opinion, one or Dated: February 6, 2008. 2 17 CFR 240.19b–4. more of the exemptions set forth in 5 Nancy M. Morris, 3 Equity Index-Linked Securities are securities Secretary. that provide for the payment at maturity of a cash U.S.C. 552b(c)(3), (4), (5), (7), (9)(B), and amount based on the performance of an underlying (10) and 17 CFR 200.402(a)(3), (4), (5), [FR Doc. E8–2522 Filed 2–8–08; 8:45 am] index or indexes of equity securities. See NYSE (7), 9(ii) and (10), permit consideration BILLING CODE 8011–01–P Arca Equities Rule 5.2(j)(6).

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proposed rule change. The text of these for Investment Company Units, which III. Date of Effectiveness of the statements may be examined at the include exchange-traded funds or Proposed Rule Change and Timing for places specified in Item IV below. The ‘‘ETFs,’’ under NYSE Arca Equities Rule Commission Action Exchange has prepared summaries, set 5.2(j)(3). Specifically, Commentary Within 35 days of the date of forth in Sections A, B, and C below, of .01(b)(2) to NYSE Arca Equities Rule publication of this notice in the Federal the most significant aspects of such 5.2(j)(3) requires that the value of an Register or within such longer period (i) statements. international or global index underlying as the Commission may designate up to A. Self-Regulatory Organization’s an ETF must be widely disseminated by 90 days of such date if it finds such Statement of the Purpose of, and one or more major market data vendors longer period to be appropriate and Statutory Basis for, the Proposed Rule at least every 60 seconds during the publishes its reasons for so finding or Change Core Trading Session (9:30 a.m. to 4 (ii) as to which the Exchange consents, p.m. Eastern Time).6 This 60-second the Commission will: 1. Purpose standard reflects limitations, in some A. By order approve such proposed NYSE Arca Equities Rule instances, on the frequency of intra-day rule change, or 5.2(j)(6)(B)(I)(2)(c)(ii) currently provides trading information with respect to B. Institute proceedings to determine that the Exchange will commence foreign country securities and that in whether the proposed rule change delisting or removal proceedings of an many cases, trading hours for overseas should be disapproved. issue of Equity Index-Linked Securities markets overlap only in part, or not at The Exchange has requested (unless the Commission has approved all, with NYSE Arca Marketplace accelerated approval of this proposed continued trading of such Securities) if, trading hours. In addition, Commentary rule change prior to the 30th day after among other circumstances, the value of .01(b)(2) to NYSE Arca Equities Rule the date of publication of the notice of the index or composite value of the 5.2(j)(3) provides that, if the index value the filing thereof. The Commission has indexes underlying such issue is no does not change during some or all of determined that a 15-day comment longer calculated or widely the period when trading is occurring on period is appropriate in this case. disseminated on at least a 15-second the NYSE Arca Marketplace, the last IV. Solicitation of Comments basis. The Exchange proposes to amend official calculated index value must NYSE Arca Equities Rule remain available throughout NYSE Arca Interested persons are invited to 5.2(j)(6)(B)(I)(2)(c)(ii) to distinguish Marketplace trading hours. submit written data, views, and between indexes consisting solely of arguments concerning the foregoing, U.S. equity securities and those 2. Statutory Basis including whether the proposed rule consisting of foreign securities or a change is consistent with the Act. combination of U.S. and foreign equity The Exchange believes that the Comments may be submitted by any of securities. The proposed amendment proposed rule change is consistent with the following methods: provides that the Exchange will Section 6(b) of the Act,7 in general, and commence delisting or removal furthers the objectives of Section 6(b)(5) Electronic Comments proceedings if the underlying index of the Act,8 in particular, in that it is • Use the Commission’s Internet value or composite index value is no designed to prevent fraudulent and comment form (http://www.sec.gov/ longer calculated or widely manipulative acts and practices, to rules/sro.shtml); or disseminated: (1) On at least a 15- promote just and equitable principles of • Send an e-mail to rule- second basis with respect to an index or trade, to foster cooperation and [email protected]. Please include File indexes containing only securities listed coordination with persons engaged in Number SR–NYSEArca–2008–06 on the on a national securities exchange;4 or (2) facilitating transactions in securities, subject line. on at least a 60-second basis with and to remove impediments to and respect to an index or indexes perfect the mechanism of a free and Paper Comments containing foreign country securities. If open market and a national market • Send paper comments in triplicate the official index value does not change system. to Nancy M. Morris, Secretary, during some or all of the period when Securities and Exchange Commission, B. Self-Regulatory Organization’s trading is occurring on the NYSE Arca 100 F Street, NE., Washington, DC Marketplace5 (for example, for indexes Statement on Burden on Competition 20549–1090. of foreign country securities, because of The Exchange does not believe the All submissions should refer to File time zone differences or holidays in the proposed rule change will impose any Number SR–NYSEArca–2008–06. This countries where such indexes’ burden on competition that is not file number should be included on the component stocks trade), then the last necessary or appropriate in furtherance subject line if e-mail is used. To help the calculated official index value must of the purposes of the Act. Commission process and review your remain available throughout NYSE Arca comments more efficiently, please use Marketplace trading hours. C. Self-Regulatory Organization’s only one method. The Commission will The Exchange seeks to conform the Statement on Comments on the post all comments on the Commission’s index dissemination requirements for Proposed Rule Change Received From Internet Web site (http://www.sec.gov/ Equity Index-Linked Securities to those Members, Participants or Others rules/sro.shtml). Copies of the submission, all subsequent 4 The Exchange states that written The Exchange states that American Depositary amendments, all written statements Shares and common shares of foreign issuers listed comments on the proposed rule change with respect to the proposed rule on U.S. national securities exchanges included in were neither solicited nor received. an index or indexes would be subject to the 15- change that are filed with the second dissemination requirement. E-mail from Commission, and all written 6 Timothy J. Malinowski, Director, NYSE Euronext, to See NYSE Arca Equities Rule 7.34 (describing communications relating to the Edward Cho, Special Counsel, Division of Trading the hours of the three trading sessions on the and Markets, Commission, dated January 30, 2008. Exchange). proposed rule change between the 5 See NYSE Arca Equities Rule 1.1(e) (defining 7 15 U.S.C. 78f(b). Commission and any person, other than NYSE Arca Marketplace). 8 15 U.S.C. 78f(b)(5). those that may be withheld from the

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public in accordance with the foreign currency and money market (collectively, the ‘‘Foreign Funds’’) and provisions of 5 U.S.C. 552, will be securities from, the series in connection three new series that will invest in U.S. available for inspection and copying in with the purchase and redemption of dollar money market securities: the Commission’s Public Reference Creation Units; and (d) certain WisdomTree U.S. Cash Fund, Room, 100 F Street, NE., Washington, registered management investment WisdomTree U.S. Government Cash DC 20549, on official business days companies and unit investment trusts Fund, and WisdomTree Tax Exempt between the hours of 10 a.m. and 3 p.m. outside of the same group of investment Cash Fund (collectively, the ‘‘Domestic Copies of the filing also will be available companies as the series to acquire Funds,’’ together with the Foreign for inspection and copying at the Shares. Funds, the ‘‘Funds’’). principal office of the Exchange. All FILING DATES: The application was filed 2. Each Fund will invest in high comments received will be posted on January 8, 2008, and amended on quality money market securities and without change; the Commission does February 1, 2008. Applicants have instruments that provide exposure to not edit personal identifying agreed to file an amendment during the money market interest rates or such information from submissions. You notice period, the substance of which is securities (‘‘Portfolio Securities’’). The should submit only information that reflected in this notice. Foreign Funds will invest in short-term you wish to make available publicly. All HEARING OR NOTIFICATION OF HEARING: An money market securities that are submissions should refer to File order granting the requested relief will denominated in the currency specified Number SR–NYSEArca–2008–06 and be issued unless the Commission orders by the Fund’s name or in multiple should be submitted on or before a hearing. Interested persons may foreign currencies, and the Domestic February 26, 2008. request a hearing by writing to the Funds will invest in money market Commission’s Secretary and serving securities denominated in U.S. dollars. For the Commission, by the Division of Each Fund’s investment objective will Trading and Markets, pursuant to delegated applicants with a copy of the request, authority.9 personally or by mail. Hearing requests be to earn current income while preserving capital and maintaining Florence E. Harmon, should be received by the Commission by 5:30 p.m. on February 26, 2008, and liquidity. In addition, each Foreign Deputy Secretary. Fund will also have an investment [FR Doc. E8–2442 Filed 2–8–08; 8:45 am] should be accompanied by proof of service on applicants, in the form of an objective to provide investors with BILLING CODE 8011–01–P affidavit or, for lawyers, a certificate of exposure to high-quality money market service. Hearing requests should state instruments or rates denominated in a the nature of the writer’s interest, the particular currency or currencies. Each SECURITIES AND EXCHANGE Foreign Fund is designed to decrease in COMMISSION reason for the request, and the issues contested. Persons who wish to be value when the value of the U.S. dollar [Investment Company Act Release No. notified of a hearing may request increases relative to the applicable 28147; 812–13470] notification by writing to the foreign currency or currencies and Commission’s Secretary. increase in value when the value of the WisdomTree Trust, et al.; Notice of U.S. dollar falls relative to the ADDRESSES: Secretary, U.S. Securities Application applicable foreign currency or and Exchange Commission, 100 F currencies. While the value of each February 6, 2008. Street, NE., Washington, DC 20549– Foreign Fund’s Portfolio Securities is AGENCY: 1090. Applicants: 380 Madison Avenue, Securities and Exchange expected to be relatively constant in 21st Floor, New York, NY 10017. Commission (‘‘Commission’’). foreign currency terms, a Foreign Fund’s ACTION: Notice of an application for an FOR FURTHER INFORMATION CONTACT: net asset value (‘‘NAV’’) will be order under section 6(c) of the Bruce R. MacNeil, Senior Counsel, at expressed in U.S. dollars. Because of Investment Company Act of 1940 (202) 551–6817, or Michael W. Mundt, this, fluctuations in the per-share NAV (‘‘Act’’) for an exemption from sections Assistant Director, at (202) 551–6821 of each Foreign Fund will be caused by 2(a)(32), 5(a)(1) and 22(d) of the Act and (Division of Investment Management, fluctuations in the exchange rate rule 22c–1 under the Act, and under Office of Investment Company between U.S. dollars and the applicable sections 6(c) and 17(b) of the Act for an Regulation). foreign currency or currencies. exemption from sections 17(a)(1) and SUPPLEMENTARY INFORMATION: The 3. The Trust plans to offer future (a)(2) of the Act, and under section following is a summary of the series that will hold money market 12(d)(1)(J) for an exemption from application. The complete application securities denominated in U.S. dollars, sections 12(d)(1)(A) and (B) of the Act. may be obtained for a fee at the other currencies or baskets of currencies Commission’s Public Reference Desk, (‘‘Future Funds’’). Applicants request APPLICANTS: WisdomTree Trust (the 100 F Street, NE., Washington, DC that the order apply to any such Future ‘‘Trust’’) and WisdomTree Asset 20549–0102 (tel. 202–551–5850). Funds. Any Future Fund will (a) be Management, Inc. (the ‘‘Adviser’’). advised by the Adviser or an entity SUMMARY OF APPLICATION: Applicants Applicants’ Representations controlled by or under common control request an order that permits: (a) Series 1. The Trust is an open-end with the Adviser, and (b) comply with of certain open-end management management investment company the terms and conditions set forth in the investment companies to issue shares registered under the Act and organized application. The Funds and Future (‘‘Shares’’) redeemable in large as a Delaware statutory trust. The Trust Funds together are the ‘‘Funds.’’ Each aggregations only (‘‘Creation Units’’); (b) will offer five new series that will invest Fund will operate as an actively- secondary market transactions in Shares substantially all of their assets in foreign managed exchange-traded fund. to occur at negotiated market prices; (c) money market securities: WisdomTree 4. The Adviser, a Delaware certain affiliated persons of the series to Euro Fund, WisdomTree British Pound corporation, is registered as an deposit foreign currency and money Sterling Fund, WisdomTree Japanese investment adviser under the market securities into, and receive Yen Fund, WisdomTree Australian Investment Advisers Act of 1940 Dollar Fund and WisdomTree (‘‘Advisers Act’’) and serves as 9 17 CFR 200.30–3(a)(12). International Currency Income Fund investment adviser to each Fund. Each

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Fund may have one or more subadvisers 7. Purchasers of Shares in Creation currency and/or money market (each, a ‘‘Fund Subadviser’’). Any Fund Units may hold such Shares or may sell securities denominated in the Subadviser will be registered as an such Shares into the secondary market. applicable currency and a U.S. dollar investment adviser under the Advisers Shares will be listed on a national component (‘‘Redemption Payment’’). A Act. ALPS Distributors, Inc., a broker- securities exchange, as defined in redeeming investor may pay a dealer registered under the Securities section 2(a)(26) of the Act (an Transaction Fee, to offset transfer and Exchange Act of 1934 (‘‘Exchange Act’’), ‘‘Exchange’’). It is expected that one or other transaction costs that may be will serve as distributor and principal more member firms of a listing incurred by the Fund in processing the underwriter for the Funds Exchange that is a national securities redemption. (‘‘Distributor’’).1 exchange will be designated to act as a 10. Neither the Trust nor any 5. Shares of the Funds will be sold at specialist and maintain a market on the individual Fund will be marketed or a price of between $50 and $200 per Exchange for Shares trading on the otherwise held out as an ‘‘open-end Share in Creation Units of at least Exchange (the ‘‘Exchange Specialist’’), investment company’’ or a ‘‘mutual 25,000 Shares. All orders to purchase or if Nasdaq is the listing Exchange, one fund.’’ The Prospectus for each Fund Creation Units must be placed with the or more member firms of Nasdaq will will prominently disclose that the Fund Distributor by or through an act as a market maker (‘‘Market Maker’’) is an ‘‘actively-managed exchange- ‘‘Authorized Participant,’’ an entity that and maintain a market on Nasdaq for traded fund.’’ All marketing materials has entered into an agreement with the Shares trading on Nasdaq.3 Prices of that describe the method of obtaining, Distributor and that is a participant in Shares trading on an Exchange will be buying or selling Shares, or refer to the Depository Trust Company (‘‘DTC,’’ based on the current bid/ask market. redeemability, will prominently and such participant, ‘‘DTC Shares sold in the secondary market disclose that Shares are not individually Participant’’). Shares of each Fund will be subject to customary brokerage redeemable and that the owners of generally will be sold in Creation Units commissions and charges. Shares may purchase or redeem Shares in exchange for a ‘‘Currency Deposit,’’ a 8. Applicants expect that purchasers from a Fund in Creation Units only. The designated amount of currency (foreign of Creation Units will include same approach will be followed in the currency with respect to the Foreign institutional investors and arbitrageurs statement of additional information, Funds; U.S. dollars with respect to the (which could include institutional shareholder reports and investor Domestic Funds). Each Fund reserves investors). The Specialist, or Market educational materials issued or the right to specify money market Maker, in providing a fair and orderly circulated in connection with the securities (‘‘Deposit Securities’’) for secondary market for the Shares, also Shares. The Funds will provide copies deposit instead of currency. Each Fund may purchase Creation Units for use in of their annual and semi-annual will also specify an amount of U.S. its market-making activities. Applicants shareholder reports to DTC Participants dollars (‘‘Dollar Deposit’’) equal to any expect that secondary market for distribution to beneficial owners of difference between the NAV (per purchasers of Shares will include both Shares. Creation Unit) of a Fund and the total institutional investors and retail 11. The Funds’ Web site, which will aggregate market value (per Creation investors.4 Applicants expect that the be publicly available at no charge, will Unit) of the Currency Deposit and/or the price at which the Shares trade will be include the Prospectus and other Deposit Securities. Collectively, the disciplined by arbitrage opportunities information about the Funds that is Currency Deposit, any Deposit created by the ability to continually updated on a daily basis, including the Securities, and the Dollar Deposit are purchase or redeem Creation Units at mid-point of the bid-ask spread at the 2 the ‘‘Portfolio Deposit.’’ their NAV, which should ensure that time of the calculation of NAV (‘‘Bid/ 6. An investor purchasing a Creation the Shares will not trade at a material Ask Price’’). On each Business Day, Unit from a Fund will be charged a fee discount or premium in relation to their before the commencement of trading in (‘‘Transaction Fee’’) to prevent the NAV. Shares on the Exchange, each Fund will dilution of the interests of the remaining 9. Shares will not be individually disclose the identities and quantities of shareholders resulting from costs in redeemable, and owners of Shares may the money market securities and other connection with the purchase of acquire those Shares from a Fund, or assets held by the Fund that will form Creation Units. The maximum tender such Shares for redemption to the basis for the Fund’s calculation of Transaction Fees relevant to each Fund the Fund, in Creation Units only. To NAV at the end of the Business Day.5 will be fully disclosed in the prospectus redeem, an investor must accumulate Applicants’ Legal Analysis (‘‘Prospectus’’) of such Fund. Orders to enough Shares to constitute a Creation purchase Creation Units of a Fund will Unit. Redemption orders must be placed 1. Applicants request an order under be placed with the Distributor who will by or through an Authorized section 6(c) of the Act granting an transmit orders to the Trust. Participant. An investor redeeming a exemption from sections 2(a)(32), 5(a)(1) Creation Unit generally will receive a and 22(d) of the Act and rule 22c–1 1 All entities that currently intend to rely on the designated amount of the applicable under the Act; and under sections 6(c) order are named as applicants. Any other entity that and 17(b) of the Act granting an relies on the order in the future will comply with the terms and conditions of the application. An 3 If Shares are listed on the Nasdaq, no particular exemption from sections 17(a)(1) and Investing Fund (as defined below) may rely on the Market Maker will be contractually obligated to order only to invest in Funds and not in any other make a market in Shares, although Nasdaq’s listing 5 Applicants note that under accounting registered investment company. requirements stipulate that at least two Market procedures followed by the Funds, portfolio trades 2 At the beginning of each day that a Fund is Makers must be registered as Market Makers in made on the prior Business Day (‘‘T’’) will be open, including as required by section 22(e) of the Shares to maintain the listing. Registered Market booked and reflected in NAV on the current Act (‘‘Business Day’’), the Adviser will make Makers are required to make a continuous, two- Business Day (‘‘T+1’’). Notwithstanding the available the Portfolio Deposit. An indicative NAV sided market at all times or be subject to regulatory foregoing, portfolio trades that are executed prior to will be disseminated every 15 seconds during sanctions. the opening of the Exchange on any Business Day trading hours at the Exchange (defined below) 4 Shares will be registered in book-entry form may be booked and reflected in NAV on such representing a per Share value based on the only. DTC or its nominee will be the registered Business Day. Accordingly, the Funds will be able Portfolio Deposit as adjusted to reflect changing owner of all outstanding Shares. DTC or DTC to disclose at the beginning of the Business Day the currency rates in effect throughout the Business Participants will maintain records reflecting portfolio that will form the basis for the NAV Day. beneficial owners of Shares. calculation at the end of the Business Day.

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(a)(2) of the Act; and under section Section 22(d) of the Act and Rule 22c– between the market price of Shares and 12(d)(1)(J) for an exemption from 1 Under the Act their NAV remains narrow. sections 12(d)(1)(A) and (B) of the Act. 4. Section 22(d) of the Act, among Section 12(d)(1) of the Act 2. Section 6(c) of the Act provides that other things, prohibits a dealer from 7. Section 12(d)(1)(A) of the Act the Commission may exempt any selling a redeemable security, which is prohibits a registered investment person, security or transaction, or any currently being offered to the public by company from acquiring shares of an class of persons, securities or or through a principal underwriter, investment company if the securities transactions, from any provision of the except at a current public offering price represent more than 3% of the total Act, if and to the extent that such described in the prospectus. Rule 22c– outstanding voting stock of the acquired exemption is necessary or appropriate 1 under the Act generally requires that company, more than 5% of the total in the public interest and consistent a dealer selling, redeeming, or assets of the acquiring company, or, with the protection of investors and the repurchasing a redeemable security do together with the securities of any other purposes fairly intended by the policy so only at a price based on its NAV. investment companies, more than 10% and provisions of the Act. Section 17(b) Applicants state that secondary market of the total assets of the acquiring of the Act authorizes the Commission to trading in Shares will take place at company. Section 12(d)(1)(B) of the Act exempt a proposed transaction from negotiated prices, not at a current prohibits a registered open-end section 17(a) of the Act if evidence offering price described in the investment company, its principal establishes that the terms of the prospectus, and not at a price based on underwriter, or any other broker or transaction, including the consideration NAV. Thus, purchases and sales of dealer from selling its shares to another to be paid or received, are reasonable Shares in the secondary market will not investment company if the sale will cause the acquiring company to own and fair and do not involve comply with section 22(d) of the Act more than 3% of the acquired overreaching on the part of any person and rule 22c–1 under the Act. Applicants request an exemption under company’s voting stock, or if the sale concerned, and the proposed section 6(c) from these provisions. will cause more than 10% of the transaction is consistent with the 5. Applicants assert that the concerns acquired company’s voting stock to be policies of the registered investment owned by investment companies company and the general provisions of sought to be addressed by section 22(d) of the Act and rule 22c–1 under the Act generally. the Act. Section 12(d)(1)(J) of the Act 8. Applicants request that the order with respect to pricing are equally provides that the Commission may permit certain investment companies satisfied by the proposed method of exempt any person, security, or registered under the Act to acquire pricing Shares. Applicants maintain that transaction, or any class or classes of Shares beyond the limitations in section while there is little legislative history persons, securities or transactions, from 12(d)(1)(A) and permit the Funds, any regarding section 22(d), its provisions, principal underwriter for the Funds, any provision of section 12(d)(1) if the as well as those of rule 22c–1, appear to and any broker or dealer registered exemption is consistent with the public have been designed to (a) prevent under the Exchange Act (‘‘Brokers’’), to interest and the protection of investors. dilution caused by certain riskless- sell Shares beyond the limitations in Sections 5(a)(1) and 2(a)(32) of the Act trading schemes by principal section 12(d)(1)(B). Applicants request underwriters and contract dealers, (b) that these exemptions apply to: (a) Any 3. Section 5(a)(1) of the Act defines an prevent unjust discrimination or Fund that is currently or subsequently ‘‘open-end company’’ as a management preferential treatment among buyers part of the same ‘‘group of investment investment company that is offering for resulting from sales at different prices, companies’’ as the initial Funds within sale or has outstanding any redeemable and (c) assure an orderly distribution of the meaning of section 12(d)(1)(G)(ii) of security of which it is the issuer. investment company shares by the Act, as well as any principal Section 2(a)(32) of the Act defines a eliminating price competition from underwriter for the Funds and any redeemable security as any security, dealers offering shares at less than the Brokers selling Shares of a Fund to an other than short-term paper, under the published sales price and repurchasing Investing Fund (as defined below); and terms of which the holder, upon its shares at more than the published (b) each management investment presentation to the issuer, is entitled to redemption price. company or unit investment trust receive approximately his proportionate 6. Applicants believe that none of registered under the Act that is not part share of the issuer’s current net assets, these purposes will be thwarted by of the same ‘‘group of investment or the cash equivalent. Because Shares permitting Shares to trade in the companies’’ as the Funds within the will not be individually redeemable, secondary market at negotiated prices. meaning of section 12(d)(1)(G)(ii) of the applicants request an order that would Applicants state that (a) secondary Act and that enters into a FOF permit each Fund, as a series of an market trading in Shares does not Participation Agreement (as defined open-end management investment involve the Funds as parties and cannot below) with a Fund (such management company, to issue Shares that are result in dilution of an investment in investment companies are referred to redeemable in Creation Units only. Shares, and (b) to the extent different herein as ‘‘Investing Management prices exist during a given trading day, Companies,’’ such unit investment Applicants state that investors may or from day to day, such variances occur trusts are referred to herein as purchase Shares in Creation Units from as a result of third-party market forces, ‘‘Investing Trusts,’’ and Investing each Fund and redeem Creation Units such as supply and demand. Therefore, Management Companies and Investing from each Fund. Applicants further applicants assert that secondary market Trusts are ‘‘Investing Funds’’). Investing state that because the market price of transactions in Shares will not lead to Funds do not include the Funds. Each Shares will be disciplined by arbitrage discrimination or preferential treatment Investing Trust will have a sponsor opportunities, investors should be able among purchasers. Finally, applicants (‘‘Sponsor’’) and each Investing to sell Shares in the secondary market contend that the proposed distribution Management Company will have an at prices that do not vary substantially system will be orderly because arbitrage investment adviser within the meaning from their NAV. activity will ensure that the difference of section 2(a)(20)(A) of the Act

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(‘‘Investing Fund Adviser’’) that does a Fund to purchase a security in any respective Funds (‘‘FOF Participation not control, is not controlled by or offering of securities during the Agreement’’). The FOF Participation under common control with the existence of any underwriting or selling Agreement will include an Adviser. Each Investing Management syndicate of which a principal acknowledgment from the Investing Company may also have one or more underwriter is an Underwriting Affiliate Fund that it may rely on the order only investment advisers within the meaning (‘‘Affiliated Underwriting’’). An to invest in the Funds and not in any of section 2(a)(20)(B) of the Act (each, a ‘‘Underwriting Affiliate’’ is a principal other investment company. The FOF ‘‘Subadviser’’). underwriter in any underwriting or Participation Agreement will further 9. Applicants assert that the proposed selling syndicate that is an officer, require any Investing Fund that exceeds transactions will not lead to any of the director, member of an advisory board, the 5% or 10% limitations in section abuses that section 12(d)(1) was Investing Fund Adviser, Subadviser, 12(d)(1)(A)(ii) and (iii) to disclose in its designed to prevent. Applicants submit employee or Sponsor of an Investing Prospectus that it may invest in Fund, or a person of which any such that the proposed conditions to the exchange-traded funds and disclose, in officer, director, member of an advisory requested relief address the concerns ‘‘plain English,’’ in its Prospectus the underlying the limits in section 12(d)(1), board, Investing Fund Adviser, unique characteristics of the Investing which include concerns about undue Subadviser, employee, or Sponsor is an Funds investing in investment influence, excessive layering of fees and affiliated person (except any person companies, including but not limited to overly complex structures. whose relationship to the Fund is 10. Applicants believe that neither the covered by section 10(f) of the Act is not the expense structure and any Investing Funds nor an Investing Fund an Underwriting Affiliate). additional expenses of investing in Affiliate would be able to exert undue 12. Applicants do not believe that the investment companies. influence over the Funds.6 Applicants proposed arrangement will involve Sections 17(a)(1) and (2) of the Act propose a condition prohibiting the excessive layering of fees. The board of Investing Fund Adviser or Sponsor; any directors or trustees of each Investing 15. Section 17(a)(1) and (2) of the Act person controlling, controlled by, or Management Company, including a generally prohibit an affiliated person of under common with the Investing Fund majority of the disinterested directors or a registered investment company, or an Adviser or Sponsor; and any investment trustees, before approving any advisory affiliated person of such a person company or issuer that would be an contract under section 15 of the Act, (‘‘second tier affiliate’’), from selling any investment company but for sections will be required to determine that the security to or purchasing any security 3(c)(1) or 3(c)(7) of the Act that is advisory fees charged to the Investing from the company. Section 2(a)(3) of the advised or sponsored by the Investing Management Company are based on Act defines ‘‘affiliated person’’ to Fund Adviser or advised or sponsored services provided that will be in include any person directly or indirectly by the Sponsor, or any person addition to, rather than duplicative of, owning, controlling, or holding with controlling, controlled by, or under the services provided under the power to vote 5% or more of the advisory contract(s) of any Fund in common control with the Investing outstanding voting securities of the which the Investing Management Fund Adviser or Sponsor (‘‘Investing other person and any person directly or Company may invest. In addition, the Fund’s Advisory Group’’) from indirectly controlling, controlled by, or controlling (individually or in the Investing Fund Adviser, trustee of an Investing Trust (‘‘Trustee’’) or Sponsor, under common control with, the other aggregate) a Fund within the meaning of person. Section 2(a)(9) of the Act section 2(a)(9) of the Act. The same as applicable, will waive fees otherwise payable to it by the Investing Fund in provides that a control relationship will prohibition would apply to any be presumed where one person owns Subadviser; any person controlling, an amount at least equal to any compensation received from a Fund by more than 25% of another person’s controlled by, or under common control voting securities. with the Subadviser; and any the Investing Fund Adviser, Trustee or investment company or issuer that Sponsor, or an affiliated person of the 16. Applicants seek an exemption would be an investment company but Investing Fund Adviser, Trustee or from section 17(a) to allow persons who for section 3(c)(1) or 3(c)(7) of the Act Sponsor (other than any advisory fees), hold (a) 5% or more, or in excess of (or portion of such investment company in connection with the investment by 25%, of all of the Shares of the Trust or the Investing Fund in the Funds. or issuer) advised or sponsored by the of one or more Funds (or affiliated Applicants also state that any sales Subadviser or any person controlling, persons of such affiliated persons that charges and/or service fees charged with controlled by, or under common control are not otherwise affiliated with the respect to shares of an Investing Fund with the Subadviser (‘‘Investing Fund’s Trust or Funds), or (b) 5% or more, or will not exceed the limits applicable to Subadvisory Group’’). in excess of 25% of the shares of any a fund of funds set forth in NASD 11. Applicants propose other other registered investment company (or Conduct Rule 2830 (‘‘Rule 2830’’). conditions to limit the potential for series) advised by the Adviser, to effect 13. Applicants submit that the purchases and redemptions through undue influence over the Funds, proposed arrangement will not create an foreign currency and in-kind including that no Investing Fund or overly complex fund structure. transactions with a Fund. Applicants Investing Fund Affiliate (except to the Applicants note that a Fund will be also request relief from section 17(a) in extent it is acting in its capacity as an prohibited from acquiring securities of investment adviser to a Fund) will cause any investment company, or of any order to permit each Fund to sell Shares to and redeem Shares from, and engage 6 company relying on section 3(c)(1) or An ‘‘Investing Fund Affiliate’’ is an Investing 3(c)(7) of the Act, in excess of the limits in the in-kind transactions that would Fund Adviser, Subadviser, Sponsor, promoter, and accompany such sales and redemptions principal underwriter of an Investing Fund, and any contained in section 12(d)(1)(A) of the person controlling, controlled by, or under common Act. with, any Investing Fund of which it is control with any of those entities. A ‘‘Fund 14. To ensure that Investing Funds are an affiliated person or a second-tier Affiliate’’ is an investment adviser, promoter and aware of the terms and conditions of the affiliate because (a) the Investing Fund principal underwriter of a Fund, and any person holds 5% or more of the Shares of one controlling, controlled by, or under common requested order, the Investing Funds control with any of those entities. must enter into an agreement with the or more Funds, or (b) an Investing Fund

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described in (a) is an affiliated person of the limits of section 12(d)(1), subject to by the Fund that will form the basis for the Investing Fund.7 certain terms and conditions, including the Fund’s calculation of NAV at the 17. Applicants contend that no useful that the registered investment company end of the Business Day. purpose would be served by prohibiting enter into a Participation Agreement 7. The Adviser or Fund Subadviser, the specified affiliated persons from with the Trust regarding the terms of the directly or indirectly, will not cause any purchasing or redeeming Creation Units investment. Authorized Participant (or any investor with foreign currency and in-kind 2. As long as the Trust operates in on whose behalf an Authorized securities transactions. The deposit reliance on the requested order, the Participant may transact with the Fund) procedures for purchases and the Shares will be listed on an Exchange. to acquire any Deposit Security for a redemption procedures for redemptions 3. Neither the Trust nor any Fund will Fund through a transaction in which the of Creation Units will be the same for be advertised or marketed as an open- Fund could not engage directly. all purchases and redemptions. The end investment company or a mutual 8. The requested order will expire on Portfolio Deposit and the Redemption fund. Each Fund’s Prospectus will the effective date of any Commission Payment will be valued in the same prominently disclose that the Fund is an rule under the Act that provides relief manner as the portfolio securities. actively managed exchange traded fund. permitting the operation of actively- Therefore, applicants state the foreign Each Prospectus also will prominently managed exchange-traded funds. disclose that Shares are not individually currency and in-kind purchases and B. Section 12(d)(1) Relief redemptions for which relief is redeemable and will disclose that the requested will afford no opportunity for owners of Shares may acquire those 1. The members of an Investing the affiliated persons of a Fund, or the Shares from the Fund and tender those Fund’s Advisory Group will not control affiliated persons of such affiliated Shares for redemption to the Fund in (individually or in the aggregate) a Fund persons, described above, to effect a Creation Units only. Any advertising within the meaning of section 2(a)(9) of transaction detrimental to other holders material that describes the purchase or the Act. The members of the Investing of Shares. Applicants also believe that sale of Creation Units or refers to Fund’s Subadvisory Group will not these purchases and redemptions will redeemability will prominently disclose control (individually or in the aggregate) not result in self-dealing or overreaching that Shares are not individually a Fund within the meaning of section of the Fund. redeemable and that owners of Shares 2(a)(9) of the Act. If, as a result of a 18. Applicants state that any may acquire those Shares from the Fund decrease in the outstanding voting consideration paid for Shares in and tender those Shares for redemption securities of a Fund, an Investing Fund’s transactions with a Fund will be based to the Fund in Creation Units only. Advisory Group or Investing Fund’s on the Fund’s NAV. Applicants also 4. The Web site maintained for the Subadvisory Group, each in the state that any transactions directly Trust, which is and will be publicly aggregate, becomes a holder of more between the Funds and the Investing accessible at no charge, will contain the than 25% of the outstanding voting Fund will be consistent with the following information, on a per Share securities of a Fund, it will vote its policies of each Investing Fund. basis, for each Fund: (a) The prior Shares in the same proportion as the Applicants note that the FOF Business Day’s NAV and the Bid/Ask vote of all other holders of the Fund’s Participation Agreement will require Price and a calculation of the premium Shares. This condition does not apply to each Investing Fund to represent that or discount of the Bid/Ask Price at the the Investing Fund’s Subadvisory Group any purchase of Creation Units will be time of calculation of the NAV against with respect to a Fund for which the accomplished in compliance with the such NAV; and (b) data in chart format Subadviser or a person controlling, investment restrictions of the Investing displaying the frequency distribution of controlled by, or under common control Fund and will be consistent with the discounts and premiums of the daily with the Subadviser acts as the investment policies set forth in the Bid/Ask Price against the NAV, within investment adviser within the meaning Investing Fund’s registration statement. appropriate ranges, for each of the four of section 2(a)(20)(A) of the Act. previous calendar quarters. 2. No Investing Fund or Investing Applicants’ Conditions 5. The Prospectus and annual report Fund Affiliate will cause any existing or The applicants agree that any order of for each Fund will also include: (a) The potential investment by the Investing the Commission granting the requested information listed in condition A.4.(b), Fund in a Fund to influence the terms relief will be subject to the following (i) in the case of the Fund’s Prospectus, of any services or transactions between conditions: for the most recently completed year the Investing Fund or Investing Fund (and the most recently completed A. Actively-Managed Exchange-Traded Affiliate and the Fund or Fund Affiliate. quarter or quarters, as applicable) and 3. The board of directors or trustees of Fund Relief (ii) in the case of the annual report, for an Investing Management Company, 1. Each Fund’s Prospectus will clearly the immediately preceding five years, as including a majority of the disinterested disclose that, for purposes of the Act, applicable; and (b) the following data, directors or trustees, will adopt Fund Shares are issued by the Fund and calculated on a per Share basis for one, procedures reasonably designed to that the acquisition of Shares by five and ten year periods (or life of the assure that the Investing Fund Adviser investment companies and companies Fund), (i) the cumulative total return and any Subadviser are conducting the relying on sections 3(c)(1) or 3(c)(7) of and the average annual total return investment program of the Investing the Act is subject to the restrictions of based on NAV and Bid/Ask Price, and Management Company without taking section 12(d)(1) of the Act, except as (ii) the cumulative total return of the into account any consideration received permitted by an exemptive order that relevant foreign currency or currencies by the Investing Management Company permits registered investment against the U.S. dollar if applicable. or an Investing Fund Affiliate from a companies to invest in a Fund beyond 6. On each Business Day, before the Fund or a Fund Affiliate in connection commencement of trading in Shares on with any services or transactions. 7 Although applicants expect that most Investing the Fund’s listing Exchange, the Fund 4. Once an investment by an Investing Funds will purchase Shares in the secondary market and will not transact in Creation Units with will disclose on its Web site the Fund in the securities of a Fund exceeds a Fund, an Investing Fund could seek to transact identities and quantities of the money the limit in section 12(d)(1)(A)(i) of the in Shares directly with a Fund. market securities and other assets held Act, the board of directors/trustees of

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the Fund (‘‘Board’’), including a by a Fund in an Affiliated Underwriting terms and conditions of the order, and majority of the disinterested Board once an investment by the Investing agree to fulfill their responsibilities members, will determine that any Fund in the securities of the Fund under the order. At the time of its consideration paid by the Fund to the exceeds the limit of section investment in shares of a Fund in excess Investing Fund or an Investing Fund 12(d)(1)(A)(i) of the Act, including any of the limit in section 12(d)(1)(A)(i), an Affiliate in connection with any services purchases made directly from an Investing Fund will notify the Fund of or transactions: (a) Is fair and reasonable Underwriting Affiliate. The Board will the investment. At such time, the in relation to the nature and quality of review these purchases periodically, but Investing Fund will also transmit to the the services and benefits received by the no less frequently than annually, to Fund a list of names of each Investing Fund; (b) is within the range of determine whether the purchases were Fund Affiliate and Underwriting consideration that the Fund would be influenced by the investment by the Affiliate. The Investing Fund will notify required to pay to another unaffiliated Investing Fund in the Fund. The Board entity in connection with the same will consider, among other things: (a) the Fund of any changes to the list of services or transactions; and (c) does not whether the purchases were consistent names as soon as reasonably practicable involve overreaching on the part of any with the investment objectives and after a change occurs. The Fund and the person concerned. This condition does policies of the Fund; (b) how the Investing Fund will maintain and not apply with respect to any services performance of securities purchased in preserve a copy of the order, the or transactions between a Fund and its an Affiliated Underwriting compares to agreement, and the list with any investment adviser(s), or any person the performance of comparable updated information for the duration of controlling, controlled by, or under securities purchased during a the investment and for a period of not common control with such investment comparable period of time in less than six years thereafter, the first adviser(s). underwritings other than Affiliated two years in an easily accessible place. 5. An Investing Fund Adviser or a Underwritings or to a benchmark such 10. Before approving any advisory trustee or Sponsor of an Investing Trust as a comparable market index; and (c) contract under section 15 of the Act, the will waive fees otherwise payable to it whether the amount of securities board of directors or trustees of each by the Investing Management Company purchased by the Fund in Affiliated Investing Management Company, or Investing Trust in an amount at least Underwritings and the amount equal to any compensation (including purchased directly from an including a majority of the disinterested fees received pursuant to any plan Underwriting Affiliate have changed directors or trustees, will find that the adopted by a Fund under rule 12b–1 significantly from prior years. The advisory fees charged under such under the Act) received from a Fund by Board will take any appropriate actions advisory contract are based on services the Investing Fund Adviser or trustee or based on its review, including, if provided that will be in addition to, Sponsor to the Investing Trust or an appropriate, the institution of rather than duplicative of, the services affiliated person of the Investing Fund procedures designed to assure that provided under the advisory contract(s) Adviser, trustee or sponsor, other than purchases of securities in Affiliated of any Fund in which the Investing any advisory fees paid to the Investing Underwritings are in the best interests Management Company may invest. Fund Adviser or trustee or Sponsor, or of shareholders. These findings and their basis will be an affiliated person of the Investing 8. Each Fund will maintain and recorded fully in the minute books of Fund Adviser, trustee or Sponsor by the preserve permanently in an easily the appropriate Investing Management Fund, in connection with the accessible place a written copy of the Company. investment by the Investing procedures described in the preceding Management Company or Investing condition, and any modifications to 11. Any sales charges and/or service Trust in the Fund. Any Subadviser will such procedures, and will maintain and fees charged with respect to shares of an waive fees otherwise payable to the preserve for a period not less than six Investing Fund will not exceed the Subadviser, directly or indirectly, by the years from the end of the fiscal year in limits applicable to a fund of funds as Investing Management Company in an which any purchase in an Affiliated set forth in Rule 2830. amount at least equal to any Underwriting occurred, the first two 12. No Fund will acquire securities of compensation received from a Fund by years in an easily accessible place, a any investment company or company the Subadviser, or an affiliated person of written record of each purchase of relying on sections 3(c)(1) or 3(c)(7) of the Subadviser, other than any advisory securities in Affiliated Underwritings the Act in excess of the limits contained fees paid to the Subadviser or its once an investment by an Investing in section 12(d)(1)(A) of the Act, except affiliated person by the Fund, in Fund in the securities of the Fund to the extent permitted by exemptive connection with the investment by the exceeds the limits of section relief from the Commission permitting Investing Management Company in the 12(d)(1)(A)(i) of the Act, setting forth the Fund to purchase shares of an Fund made at the direction of the from whom the securities were affiliated money market fund for short- Subadviser. In the event that the acquired, the identity of the Subadviser waives fees, the benefit of underwriting syndicate’s members, the term cash management purposes. the waiver will be passed through to the terms of the purchase, and the For the Commission, by the Division of Investing Management Company. information or materials upon which Investment Management, pursuant to 6. No Investing Fund or Investing the Board’s determinations were made. delegated authority. Fund Affiliate (except to the extent it is 9. Before investing in a Fund in Florence E. Harmon, acting in its capacity as an investment excess of the limits in section Deputy Secretary. adviser to a Fund) will cause a Fund to 12(d)(1)(A), the Investing Fund and the [FR Doc. E8–2450 Filed 2–8–08; 8:45 am] purchase a security in any Affiliated Fund will execute a FOF Participation Underwriting. Agreement stating, without limitation, BILLING CODE 8011–01–P 7. The Board, including a majority of that their boards of directors or trustees the disinterested Board members, will and their investment advisers, and the adopt procedures reasonably designed trustee and Sponsor of an Investing to monitor any purchases of securities Trust, as applicable, understand the

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SOCIAL SECURITY ADMINISTRATION treatment, vocational and education afford claimants their statutory right experience, work activity, and under the Social Security Act and Agency Information Collection evaluations of potential for work for implementing regulations to request Activities: Proposed Request and adults. It also collects information on review of an Administrative Law Judge’s Comment Request ability of Title XVI children to function (ALJ) hearing decision or dismissal of a The Social Security Administration without marked and severe limitation. hearing request on Title II and Title XVI (SSA) publishes a list of information On the basis of the responses provided, claims. An individual may request an collection packages that will require SSA obtains medical and other evidence Appeals Council review by filing a clearance by the Office of Management in order to make a determination written request. A completed HA–520 and Budget (OMB) in compliance with whether disability, as defined by the ensures that SSA receives the Public Law 104–13, the Paperwork Social Security Act, continues or has information necessary to establish that Reduction Act of 1995, effective October ended, and, if so, when the disability the claimant filed the request for review 1, 1995. The information collection ended. A continuing disability review within the prescribed time, and that the packages that may be included in this (CDR) is typically done when a disabled claimant has completed the requisite notice are for new information individual’s medical reexamination steps to permit review by the Appeals collections, approval of existing diary matures, or when medical Council. The Appeals Council also uses information collections, revisions to improvement is reported. The number the information to document the OMB-approved information collections, of CDRs done each fiscal year depends claimant’s reason(s) for disagreeing with and extensions (no change) of OMB- on the number of maturing diaries, the ALJ’s decision or dismissal, to approved information collections. reports of medical improvement and determine whether the claimant has SSA is soliciting comments on the SSA budget constraints. The additional evidence to submit, and to accuracy of the agency’s burden respondents are recipients of benefits determine whether the claimant has a estimate; the need for the information; based on disability under Title II and/ representative or wants to appoint one. its practical utility; ways to enhance its or Title XVI of the Social Security Act. The respondents are claimants quality, utility, and clarity; and on ways Type of Request: Revision of an OMB- requesting review of an ALJ’s decision to minimize burden on respondents, approved information collection. or dismissal of hearing. Number of Respondents: 398,000. including the use of automated Type of Request: Revision of an OMB- Frequency of Response: 1. collection techniques or other forms of approved information collection. Average Burden per Response: 60 Number of Respondents: 100,000. information technology. Written minutes. Frequency of Response: 1. comments and recommendations Estimated Annual Burden: 398,000 Average Burden per Response: 10 regarding the information collection(s) hours. minutes. should be submitted to the OMB Desk 2. Cessation or Continuance of Estimated Annual Burden: 16,667 Officer and the SSA Reports Clearance Disability or Blindness Determination hours. Officer. The information can be mailed, and Transmittal—20 CFR 404.1512, 2. Employee Identification faxed or e-mailed to the individuals at 404.1588–1599, 404.1615—0960–0442. Statement—20 CFR 404.702—0960– the addresses and fax numbers listed The information collected on the SSA– 0473. The information collected by below: 833–C3/U3 is used to make Form SSA–4156 is used in scrambled (OMB), Office of Management and determinations of whether individuals earnings situations when two or more Budget, Attn: Desk Officer for SSA, receiving Title II disability benefits individuals have used the same Social Fax: 202–395–6974, E-mail address: continue to be unable to engage in Security Number (SSN), or when an [email protected]. substantial gainful activity and are still employer (or employers) has reported (SSA), Social Security Administration, eligible to receive benefits. The earnings for two or more employees DCBFM, Attn: Reports Clearance respondents are State Disability under the same SSN. The information Officer, 1333 Annex Building, 6401 Determination Services (DDS) on the form is used to help identify the Security Blvd., Baltimore, MD 21235, employees. individual (and the SSN) to whom the Fax: 410–965–6400, E-mail address: Type of Request: Extension of an earnings belong. The respondents are [email protected]. OMB-approved information collection. employers involved in erroneous wage I. The information collections listed Number of Respondents: 190,507. reporting. below are pending at SSA and will be Frequency of Response: 1. Type of Request: Extension of an submitted to OMB within 60 days from Average Burden per Response: 30 OMB-approved information collection. the date of this notice. Therefore, your minutes. Number of Respondents: 4,750. comments should be submitted to SSA Estimated Annual Burden: 95,254 Frequency of Response: 1. within 60 days from the date of this hours. Average Burden per Response: 10 publication. You can obtain copies of II. The information collections listed minutes. the collection instruments by calling the below have been submitted to OMB for Estimated Annual Burden: 792 hours. SSA Reports Clearance Officer at 410– clearance. Your comments on the 3. Authorization to Disclose 965–0454 or by writing to the address information collections would be most Information to Social Security listed above. useful if received by OMB and SSA Administration—20 CFR 404.1512 & 20 1. Continuing Disability Review within 30 days from the date of this CFR 416.912—0960–0623. SSA must Report—20 CFR 404.1589, 416.989— publication. You can obtain a copy of obtain sufficient medical evidence to 0960–0072. SSA uses the information the OMB clearance packages by calling make eligibility determinations for Title collected on Form SSA–454–BK to the SSA Reports Clearance Officer at II benefits and Title XVI payments. For determine whether an individual who 410–965–0454, or by writing to the SSA to obtain medical evidence, an receives Social Security disability address listed above. applicant must authorize his or her benefits continues to be disabled. The 1. Request for Review of Hearing medical source(s) to release the SSA–454–BK updates the record of the Decision/Order—20 CFR 404.967– information to SSA. The applicant may disabled individual, providing 404.981, 416.1467–416.1481—0960– use form SSA–827 to provide consent information on recent medical 0277. The HA–520 is needed in order to for the release of information. Generally,

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the State DDS completes the form(s) applicant, and sends the form(s) to the Type of Request: Revision of a based on information provided by the designated medical source(s). currently approved information collection.

READING, SIGNING, AND DATING THE 1ST SSA–827 [10 minutes]

Estimated Number of re- Total annual number of Total burden Total respondents ports by each responses minutes per hours respondent response

3,853,928 ...... 1 3,853,928 10 642,321

SIGNING AND DATING THREE ADDITIONAL SSA–827S

Estimated Number of re- Total annual number of Total burden Total respondents ports by each responses minutes per hours respondent response

3,853,928 ...... 3 11,561,784 1 192,696

READING THE EXPLANATION OF THE SSA–827 ON THE INTERNET

Estimated Number of re- Total annual number of Total burden Total respondents ports by each responses minutes per hours respondent response

586,232 ...... 1 586,232 3 29,312

Collectively: are applying to receive vital status from trade associations that represent Number of Respondents: 3,853,928. information about individuals from defense industrial and technology Average Burden per Response: 13 Social Security administrative data sectors and from academic and other minutes to complete all four forms. records. research institutions with expertise in Estimated Annual Burden for Reading Type of Request: Extension of an defense technology. Those individuals Internet Explanation: 29,312. OMB-approved information collection. who have already submitted Estimated Annual Burden to Number of Respondents: 30. applications in response to the notice Complete the Form: 864,329 hours. Frequency of Response: 1. published in the Federal Register on Correction: The first and second Average Burden per Response: 120 August 31, 2007 (72 FR 50437) do not Federal Register Notices reported minutes. need to reapply. incorrect burden information and Estimated Annual Burden: 60 hours. The DTAG was established as a mentioned two alternate versions of the continuing committee under the Dated: February 6, 2008. form which were discontinued authority of 22 U.S.C. Sections 2651a previously. We are publishing this Elizabeth A. Davidson, and 2656 and the Federal Advisory correction Notice to show the correct Reports Clearance Officer, Social Security Committee Act, 5 U.S.C. App. burden information and remove the Administration. (‘‘FACA’’). references to the two discontinued [FR Doc. E8–2503 Filed 2–8–08; 8:45 am] The purpose of the DTAG is to forms. BILLING CODE 4191–02–P provide the Bureau of Political-Military 4. Epidemiological Research Report— Affairs with a formal channel for regular 20 CFR 401.165—0960–0701. Section consultation and coordination with U.S. 311 of the Social Security Independence DEPARTMENT OF STATE private sector defense exporters and and Program Improvements Act of 1994 defense trade specialists on issues directed SSA to provide support to [Public Notice 6081] involving U.S. laws, policies, and health researchers involved in Defense Trade Advisory Group; Notice regulations for munitions exports. The epidemiological research. Specifically, of Membership DTAG advises the Bureau on its support when a study is determined to for and regulation of defense trade to contribute to a national health interest, AGENCY: Department of State. help ensure that impediments to SSA will furnish information to ACTION: Notice. legitimate exports are reduced while the determine whether a study subject is foreign policy and national security shown on the SSA administrative The U.S. Department of State’s Bureau interests of the United States continue records as being alive or deceased (vital of Political-Military Affairs’ Defense to be protected and advanced in status). SSA will recoup all expenses Trade Advisory Group (DTAG) is accordance with the Arms Export incurred in providing this information. accepting membership applications. Control Act (AECA), as amended. Major Web-posted questions solicit the Although applications from individual topics addressed by the DTAG include information SSA needs to provide the companies will be considered, the (a) policy issues on commercial defense data and to collect the fees. The Bureau of Political-Military Affairs is trade and technology transfer; (b) requestors are scientific researchers who particularly interested in applications regulatory and licensing procedures

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applicable to defense articles, services, • E-mailed to the following address: behind any Member State(s) of the and technical data; (c) technical issues [email protected]. In the subject field, European Union, via a point or points involving the U.S. Munitions List please write, ‘‘DTAG Application.’’ in any Member State(s) of the European (USML); and (d) questions relating to • Send in hardcopy to the following Union and intermediate points, on the actions designed to carry out the AECA address: Alexandra Frantz, PM/DDTC, one hand, and a point or points in the and International Traffic in Arms SA–1, 12th Floor, Directorate of Defense United States and beyond on the other Regulations (ITAR). Trade Controls, Bureau of Political- hand; (ii) all-cargo charter flights Members are appointed by the Military Affairs, U.S. Department of between the United States and any point Assistant Secretary of State for Political- State, Washington, DC 20522–0112. or points without prior approval; (iii) Military Affairs on the basis of All applications must be postmarked other charter foreign air transportation individual substantive and technical by March 10, 2008. of property and mail pursuant to the expertise and qualifications, and are Dated: February 5, 2008. prior approval requirements under 14 drawn from a representative cross- Robert S. Kovac, CFR part 212; and (iv) transportation section of U.S. defense industry, Designated Federal Official, Defense Trade authorized by any additional route or association, academic, and foundation Advisory Group, Department of State. rights made available to European personnel, including appropriate [FR Doc. E8–2495 Filed 2–8–08; 8:45 am] Community carriers in the future. BGB technical and military experts. All BILLING CODE 4710–25–P also seeks exemption authority to offer DTAG members shall be aware of the and to contract for the services Department of State’s mandate that arms described prior to March 30, 2008. transfers must further U.S. national DEPARTMENT OF TRANSPORTATION Renee V. Wright, security and foreign policy interests. Program Manager, Docket Operations, DTAG members also shall be versed in Office of the Secretary Federal Register Liaison. the complexity of commercial defense [FR Doc. E8–2475 Filed 2–8–08; 8:45 am] trade and industrial competitiveness, Notice of Applications for Certificates and all members must be able to advise of Public Convenience and Necessity BILLING CODE 4910–9X–P the Bureau on these matters. While and Foreign Air Carrier Permits Filed Under Subpart B (formerly Subpart Q) members are expected to use their DEPARTMENT OF TRANSPORTATION expertise and provide candid advice, During the Week Ending November 9, national security and foreign policy 2007 Office of the Secretary interests of the United States shall be The following Applications for the basis for all policy and technical Notice of Applications for Certificates Certificates of Public Convenience and recommendations: of Public Convenience and Necessity Necessity and Foreign Air Carrier and Foreign Air Carrier Permits Filed DTAG members’ responsibilities Permits were filed under Subpart B Under Subpart B (formerly Subpart Q) include: (formerly Subpart Q) of the Department During the Week Ending November 2, • Service for a consecutive two-year of Transportation’s Procedural 2007 term which may be renewed or Regulations (See 14 CFR 301.201 et terminated at the discretion of the seq.). The following Applications for Assistant Secretary of State for Political- The due date for Answers, Certificates of Public Convenience and Military Affairs (membership shall Conforming Applications, or Motions to Necessity and Foreign Air Carrier automatically terminate for members Modify Scope are set forth below for Permits were filed under subpart B who fail to attend two consecutive each application. Following the Answer (formerly subpart Q) of the Department DTAG plenary meetings). period DOT may process the application of Transportation’s Procedural • Making recommendations in by expedited procedures. Such Regulations (see 14 CFR 301.201 et accordance with the DTAG Charter and procedures may consist of the adoption seq.). the FACA. of a show-cause appropriate cases a The due date for Answers, • Making policy and technical final order without further proceedings. Conforming Applications, or Motions to Docket Number: DOT–OST–2007– recommendations within the scope of Modify Scope are set forth below for 0037. the U.S. commercial export control each application. Following the Answer regime as mandated in the AECA, the Date Filed: November 7, 2007. Due Date for Answers, Conforming period DOT may process the application ITAR, and appropriate directives. Applications, or Motion to Modify by expedited procedures. Such Please note that DTAG members may Scope: November 28, 2007. procedures may consist of the adoption not be reimbursed for travel, per diem, Description: Application of MK of a show-cause order, a tentative order, and other expenses incurred in Airlines Limited d/b/a British Global or in appropriate cases a final order connection with their duties as DTAG Airlines (‘‘BGB’’) requesting exemption without further proceedings. members. authority to transport property and mail Docket Number: DOT–OST–2007– How to apply: Applications in in foreign charter air transportation 0028. response to this notice must contain the between a point or points in the United Date Filed: October 29, 2007. following information: (1) Name of Kingdom, and a point or points in the Due Date for Answers, Conforming applicant; (2) affirmation of U.S. United States, either directly or via Applications, or Motion To Modify citizenship; (3) organizational affiliation intermediate or beyond points, with or Scope: November 19, 2007. and title, as appropriate; (4) mailing without stopovers and the right to Description: Application of Hawaiian address; (5) work telephone number; operate Fifth Freedom cargo charters as Airlines, Inc. requesting certificate (6) e-mail address; (7) resum´ e; and (8) authorized on an individual basis under authority from the United States to the summary of qualifications for DTAG 14 CFR part 212; and a foreign air Philippines and related integration membership. carrier permit and exemption in foreign authority as provided in the Notice This information may be provided via charter air transportation of property issued August 23, 2005 in Docket OST– two methods: and mail between (i) a point or points 2005–22228.

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Docket Number: DOT–OST–2007– Docket Number: DOT–OST–2007– Specified Fares Tables. Intended 0030. 0033. effective date: 1 November 2007. Date Filed: October 31, 2007. Date Filed: October 30, 2007. Docket Number: DOT–OST–2007– Due Date for Answers, Conforming Due Date for Answers, Conforming 0044. Applications, or Motion To Modify Applications, or Motion To Modify Date Filed: November 8, 2007. Scope: November 21, 2007. Scope: November 20, 2007. Parties: Members of the International Description: Application of Description: Application of WestCan Air Transport Association. Scandinavian Airlines System (SAS) International Airlines, Inc. requesting a Subject: Expedited Resolution 002ar requesting an exemption and an foreign air carrier permit and an (PTC123 0387). Intended effective date: amended foreign air carrier permit exemption for non-scheduled, all-cargo 15 December 2007. authorizing SAS to conduct operations charter flights between Canada and the Docket Number: DOT–OST–2007– to and from the United States to the full United States and its possessions. extent authorized by the recently signed 0045. United States-European Union Air Renee V. Wright, Date Filed: November 8, 2007. Transport Agreement, for flights Program Manager, Docket Operations, Parties: Members of the International operations on or after March 30, 2008, Federal Register Liaison. Air Transport Association. including authority to engage in: (i) [FR Doc. E8–2479 Filed 2–8–08; 8:45 am] Subject: TC1 Longhaul Package Foreign scheduled and charter air BILLING CODE 4910–9X–P Resolutions. (Memo PTC1 0364). transportation of persons, property and Intended effective date: 1 January 2008. mail from any point or points behind Docket Number: DOT–OST–2007– any Member State of the European DEPARTMENT OF TRANSPORTATION 0046. Union, via any point or points in the Date Filed: November 8, 2007. United States and beyond; (ii) foreign Office of the Secretary Parties: Members of the International scheduled and charter air transportation Air Transport Association. Aviation Proceedings, Agreements of persons, property and mail between Subject: TC23/123 Middle East-South Filed the Week Ending November 9, any point or points in the United States East Asia. Expedited Resolutions and 2007 and any point or points in any member Specified Fares Tables. Intended of the European Common Aviation The following Agreements were filed effective date: 1 November 2007. Area; (iii) foreign scheduled and charter with the Department of Transportation Renee V. Wright, cargo air transportation between any under the sections 412 and 414 of the point or points in the United States and Program Manager, Docket Operations, Federal Aviation Act, as amended (49 Federal Register Liaison. any point or points; (iv) other charters U.S.C. 1383 and 1384) and procedures [FR Doc. E8–2500 Filed 2–8–08; 8:45 am] pursuant to prior approval governing proceedings to enforce these requirements; and (v) transportation provisions. Answers may be filed within BILLING CODE 4910–9X–P authorized by any additional route 21 days after the filing of the rights made available to European application. DEPARTMENT OF TRANSPORTATION Community carriers in the future. Docket Number: DOT–OST–2007– Docket Number: DOT–OST–2005– 0041. Office of the Secretary 20395. Date Filed: November 8, 2007. Date Filed: November 2, 2007. [Docket No. DOT–OST–2007–0108] Due Date for Answers, Conforming Parties: Members of the International Applications, or Motion To Modify Air Transport Association. National Task Force to Develop Model Scope: November 23, 2007. Subject: TC123 South Atlantic. Contingency Plans to Deal With Description: Amendment No. 1 of Expedited Resolution 002bc and Lengthy Airline On-Board Ground Flyjet Limited d/b/a Silverjet (Silverjet) Specified Fares Tables. Package/ Delays to its application for a foreign air carrier expedited (PTC123 SATL 0388). AGENCY: Office of the Secretary (OST), permit and requesting an exemption to Intended effective date: 15 December Department of Transportation (DOT). seek expanded authority to permit it to 2007. engage in: (a) Foreign scheduled and Docket Number: DOT–OST–2007– ACTION: Notice of membership and first charter air transportation of persons, 0042. meeting of advisory committee. Date Filed: November 8, 2007. property, and mail from any point or SUMMARY: This notice announces the points behind any Member State of the Parties: Members of the International Air Transport Association. membership and the first meeting of the European Union, via any point or points National Task Force to Develop Model in any Member state and via Subject: TC12 Mexico, Mid Atlantic, South Atlantic—Europe. (Memo PTC12 Contingency Plans to Deal with Lengthy intermediate points, to any point or Airline On-Board Ground Delays. points in the United States and beyond; MEX–EUR 0094). Minutes: TC12 (b) foreign scheduled and charter air Passenger Tariff Coordinating DATES: The first meeting of the Task transportation of persons, property and Conference Geneva, 3 October 2007. Force is scheduled for February 26, mail between any point or points in the PTC12 Mexico, Mid Atlantic, South 2008, from 8:30 a.m. to 5 p.m., Eastern United States and any point or points in Atlantic—Europe. Minutes (Memo Time. any member of the European Common PTC12 MEX–EUR 0096). Intended ADDRESSES: The first meeting of the Aviation Area; (c) foreign scheduled and effective date: 1 December 2007. Task Force will be held at the U.S. charter cargo air transportation between Docket Number: DOT–OST–2007– Department of Transportation (U.S. any point or points in the United States 0043. DOT), 1200 New Jersey Avenue, SE., and any point or points; (d) other Date Filed: November 8, 2007. Washington, DC, in the Oklahoma City charters; and (e) transportation Parties: Members of the International Conference Room on the lobby level of authorized by any additional route Air Transport Association. the West Building. rights made available to European Subject: TC23/123 Africa-South East FOR FURTHER INFORMATION OR TO community carriers in the future. Asia. Expedited Resolutions and CONTACT THE DEPARTMENT CONCERNING

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THE TASK FORCE: participate in the Task Force as non- Federal advisory committees. (41 CFR Livaughn Chapman, Jr., or Kathleen member participants. part 102–3.) Blank-Riether, Office of the General As noted above, the first meeting of Conclusion Counsel, U.S. Department of the Task Force will take place on Transportation, 1200 New Jersey Ave., February 26, 2008. The agenda topics The First Meeting of the National SE., W–96–429, Washington, DC 20590– for the first meeting will include: (1) Task force to Develop Model 0001; Phone: (202) 366–9342; Fax: (202) Orientation about the Federal Advisory Contingency Plans to Deal with Lengthy 366–7152; E-mail: Committee Act procedures and the Airline On-Board Ground Delays will be [email protected], or purpose of the task force; (2) an held on February 26, 2008, from 8:30 [email protected]. introduction of the issues and a.m. to 5 p.m., Eastern Time, at the U.S. discussion of contingency plans, and (3) Department of Transportation, 1200 SUPPLEMENTARY INFORMATION: establishment of working groups. A New Jersey Avenue, SE., Washington, Background period of time for public comments, if DC, in the Oklahoma City Conference any, will also be provided. Room on the lobby level of the West DOT’s Office of Inspector General The Department anticipates that the Building. recommended, in its audit report, Task Force will meet at least three entitled ‘‘Actions Needed to Minimize additional times in 2008. It is Issued on: February 5, 2008. Long, On-Board Flight Delays,’’ issued anticipated that all meetings will be Samuel Podberesky, on September 25, 2007, that the held in Washington, DC at the U.S. DOT Assistant General Counsel for Aviation Secretary of Transportation establish a headquarters building. The Department Enforcement & Proceedings, U.S. Department national task force of airlines, airports, will publish notices in the Federal of Transportation. and the Federal Aviation Register to announce the dates, times, Appendix 1—Charter for the National Administration to coordinate and and locations of future meetings. Task Force to Develop Model develop contingency plans to deal with Meetings of the Task Force are open to Contingency Plans to Deal With lengthy delays, such as working with the public, and time will be provided Lengthy Airline On-Board Ground carriers and airports to share facilities for comments by members of the public. Delays Since access to the U.S. DOT and make gates available in an Federal Advisory Committee Charter emergency. headquarters building is controlled for To effectuate this recommendation, security purposes, any member of the National Task Force to Develop Model the Department published a notice of general public who plans to attend the Contingency Plans to Deal with Lengthy intent to form an advisory committee in first meeting must notify the Airline On-Board Ground Delays Department contact noted above ten (10) the Federal Register on December 20, U.S. Department of Transportation 2007 (72 FR 72435). This notice, calendar days prior to the meeting. Attendance will be necessarily limited consistent with the requirements of the 1. Purpose: This charter establishes by the size of the meeting room. Federal Advisory Committee Act the National Task Force to Develop Members of the public may present Model Contingency Plans to Deal with (FACA), 5 U.S.C. App. 2, announced the written comments at any time and, at establishment of the Task Force and Lengthy Airline On-Board Ground the discretion of the Chairman and time Delays pursuant to the Federal Advisory invited comments, as well as permitting, oral comments at the nominations and applications for Committee Act (FACA), as amended, 5 meeting. Any oral comments permitted U.S.C., App. 2, and sets forth policies membership. The Task Force Charter is must be limited to agenda items and attached as Appendix 1. for its operations. will be limited to five (5) minutes per 2. Scope and Objectives: A total of thirty-four (34) person. Members of the public who a. The Task Force will develop model applications/nominations for wish to present oral comments must contingency plans for minimizing the membership on the Task Force were notify the Department contact noted impact of lengthy airline on-board submitted to the docket. In selecting the above via e-mail that they wish to attend ground delays. members of the Task Force, the and present oral comments at least ten Department attempted to achieve a (10) calendar days prior to the meting. b. The Task Force will be responsible balanced membership representing a For this February 20 meeting, no more for reviewing incidents involving long, broad cross-section of the diverse than one hour will be set aside for oral on-board ground delays and their agencies, organizations and individuals comments. Although written material causes; identifying trends and patterns that represent airlines, airports, may be filed in the docket at any time, of such events; and recommending consumer groups and other interested comments regarding upcoming meeting workable solutions for mitigating the entities in the United States. We also topics should be sent to the Task Force on-board consumer impact of contacted some organizations that had docket, (10) calendar days prior to the extraordinary flight disruptions. not submitted an application for meeting. Members of the public may c. The Task Force will report to the membership by the January 4 deadline, also contact the Department contact Secretary of Transportation the results but whose membership in the Task noted above to be placed on the Task of its consideration and a description of Force we believed would be beneficial, Force mailing list. model contingency plans it develops. to encourage their participation. The Persons with a disability requiring d. The Task Force will not exercise Secretary of Transportation has now special accommodations, such as an program management, regulatory or named the members of the Task Force, interpreter for the hearing impaired, program guidance responsibilities. It and their names are listed below as should contact the Department contact will make no decision directly affecting Appendix 2 to this notice. In addition noted above at least seven (7) calendar the programs on which it provides to the Task Force members named by days prior to the meeting. advice. The Task Force will provide a the Secretary, individuals from the Notice of this meeting is provided in forum for the development, Department of Homeland Security, the accordance with the FACA and the consideration, and communication from Federal Aviation Administration, and General Services Administration a knowledgeable and independent the Office of the Secretary will regulations covering management of perspective of a strategy for dealing with

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lengthy on-board ground delays replacement member by the Secretary of 14. Reports: The Designated Federal nationwide. Transportation. Official will furnish detailed minutes of 3. Duties: The Task Force will carry c. The Task Force will ensure that the each meeting to the Sponsor. The out the following tasks: public is able to present its views to the minutes contain a record of the persons a. Develop model contingency plans Task Force in accordance with the present, a complete and accurate to deal with lengthy air carrier on-board Federal Advisory Committee Act. description of matters discussed and delays. 9. Task Force Officers: The Chairman conclusions reached, and copies of all b. Review incidents involving long, will conduct each meeting using reports received, issued, or approved by on-board ground delays and their generally accepted meeting management the Task Force. The Chairman will causes; identify trends and patterns of techniques, provide an opportunity for certify the accuracy of the minutes. such events; and recommend workable participation by each member and by 15. Working Groups: solutions for mitigating the on-board public attendees, ensure adherence to a. The Task Force may establish consumer impact of extraordinary flight the agenda, maintain order, and prepare working groups to perform specific disruptions. any recommendations to be submitted assignments with the approval of the c. Review existing airline and airport to the Secretary of Transportation. At Designated Federal Official. The contingency plans for extended tarmac the request of the Chairman, the Vice Chairman may designate members from delays for best practices. Chairman will perform these duties. either the Task Force or the public to d. Report to the Secretary of 10. Meetings: serve on working groups. Any Working Transportation the results of its a. Meetings will be held at the call of Group Chairman will be a Task Force consideration and a description of the or with the advance approval of the member. Recording or videotaping of model contingency plans developed. Designated Federal Official. The Task working group meetings may be 4. Duration: The Task Force will Force will meet approximately 4 times performed only with the Designated remain in existence for 1 year from the the first year in Washington, DC. Special Federal Official’s approval. effective date of this charter, unless meetings and working group meetings b. Any recommendations to the recommended for termination or may be called as necessary. Notice of Department by working groups are renewal by the Secretary of each scheduled meeting will be subject to approval by the Task Force as Transportation. published in the Federal Register. a whole. 5. Official to Whom the Task Force b. All meetings will be open to the 16. Filing Date: January 3, 2008 is the Reports: The Task Force will report to public. Members of the public will be filing date and the effective date of this the Secretary of Transportation through permitted to appear before or file charter which will expire 1 year from the sponsor. statements with the Task Force. The this filing date, unless sooner 6. Sponsor and Agency Providing Designated Federal Official must be terminated or extended. Support: The Office of the General present at each Task Force meeting. The Counsel serves as sponsor of the Task official has the authority to adjourn the Appendix 2—Membership of the Force and has designated the Assistant meeting whenever such action is National Task Force to Develop Model General Counsel for Aviation deemed to be in the public interest. A Contingency Plans to Deal With Enforcement and Proceedings as the quorum exists when at least one-half of Lengthy On-Board Ground Delays Designated Federal Official and the appointed members are present. A Samuel Podberesky, Chairman, Chairman of the Task Force. The quorum must exist for any official Assistant General Counsel for Aviation Sponsor has designated the Federal action, including voting, to occur. In Enforcement and Proceedings, U.S. Aviation Administration’s Associate any situation involving voting, the Department of Transportation. Administrator for Airports as the Vice majority vote of members present will D. Kirk Shaffer, Vice Chairman, Chairman of the Task Force. The prevail. An agenda for each meeting Associate Administrator for Airports, Chairman of the Task Force will direct must be approved in advance by the Federal Aviation Administration. the affairs of the Task Force and will Designated Federal Official. Basil Barimo, Vice President, provide necessary administrative 11. Compensation: Members of the Operations and Safety, Air Transport support, as required by the Federal Task Force are responsible for their own Association. Advisory Committee Act. At the request travel and per diem expenses. Brian Bartal, Project Manager, of the Chairman, the Vice Chairman will 12. Costs: Operating expenses are American Eagle Airlines. perform these duties. borne by the Task Force Sponsor. The Roger Cohen, President, Regional 7. Delegation: The Chairman is estimated annual cost to the government Airline Association. delegated the authority to require is $20,000 inclusive of support, report Michael C. Collins, Disability Rights special reports under 49 U.S.C. 41708 to writing, meeting costs, travel, and other Advocate. effectuate the duties of the Task Force. logistics. James M. Crites, Executive Vice The Chairman is also delegated the 13. Availability of Records: Pursuant President, Operations, Dallas/Fort authority to issue Federal Register to Section 552 of Title 5, United States Worth International Airport. notices regarding the workings of the Code, the records, reports, minutes, Benjamin R. DeCosta, Aviation Task Force. agenda, and other documents made General Manager, Hartsfield-Jackson 8. Membership: available to or by the Task Force will be International Airport. a. The Task Force will be composed available for public inspection and George F. Doughty, Executive of individuals appointed by the duplication in the Office of the Director, Lehigh-Northampton Airport Secretary of Transportation. Task Force Secretary of Transportation. A docket Authority. members will be Regular Government will be established for this Task Force Charles M. Durham, III, Sr. Manager Employees and Representatives of to accomplish this result. To the extent of Dispatch, ExpressJet Airlines. airlines, airports and consumer groups that there is a discussion of issues Edward P. Faberman, Executive in the U.S. concerning on-going rulemaking Director, Air Carrier Association of b. Nonparticipation by any member in proceedings during a Task Force America. Task Force activities will be sufficient meeting, the minutes of that meeting James J. Gaydos, Director, Airport reason for the appointment of a will be placed in the appropriate docket. Services, American Airlines.

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Kate Hanni, Founder/Spokesperson, DEPARTMENT OF TRANSPORTATION a request for a waiver of compliance Coalition for an Airline Passengers’ Bill with certain requirements of its safety of Rights. Federal Railroad Administration standards. The individual petition is Steve Hozdulick, Senior Director— described below, including the party Operational Performance, Southwest Notification of Petition for Approval; seeking relief, the regulatory provisions Airlines. Railroad Safety Program Plan involved, the nature of the relief being Kevin Hudson, Senior Manager, Although not required, the Federal requested, and the petitioner’s Operational Performance, Tracking and Railroad Administration (FRA) is arguments in favor of relief. Reporting, Frontier Airlines. providing notice that it has received a Big West Oil, LLC William R. Lange, Vice President, petition for approval of a Railroad Safety & Compliance, Compass Airlines. Safety Program Plan (RSPP) submitted [Waiver Petition Docket Number FRA–2007– Douglas E. Lavin, Regional Vice pursuant to Title 49 Code of Federal 0025] President, International Air Transport Regulations (CFR) part 236, subpart H. The Big West Oil, LLC (FLYJ), a Class Association—North America. The petition is listed below, including III railroad, seeks a waiver of Tony Lefebvre, Senior Vice the party seeking approval, and the compliance from the requirements of 49 President—Customer Service, Spirit requisite docket number. FRA is not CFR part 223.11 Requirements for Airlines. accepting comments on this RSPP. existing locomotives for locomotive number 1. Specifically, FLYJ petitioned D. Leo Malloy, Jr., Vice President, Ohio Central Railroad System Customer Service, Skyway Airlines/ FRA for a waiver for a 600 horsepower Midwest Connect. [Docket Number FRA–2008–0003] diesel electric locomotive, model SW– Alex Marren, Vice President, The Ohio Central Railroad System 600, built by the Electro Motive Division Operational Services, United Airlines. (OCRS) submitted a petition for of General Motors in 1962. This Deborah C. McElroy, Executive Vice approval of an RSPP. The petition, the locomotive is primarily used for President, Policy and External Affairs, RSPP, and any related documents have industrial switching within an enclosed Airports Council International—North been placed in the requisite docket facility adjacent to the Big West Oil America. (FRA–2008–0003) and are available for Refinery in Salt Lake City, Utah. The Robert K. Muhs, Vice President, public inspection. locomotive is stored during non- System Operations Control, Northwest Interested parties are invited to operational hours within a secure area Airlines. review the RSPP and associated of the refinery. Patrick V. Murphy, Aviation documents at the DOT Docket Locomotive number 1 is used on a Consultant, representing U.S. Airways. Management Facility during regular limited basis for industrial switching Capt. Larry Newman, Chairman, Air business hours (9 a.m.–5 p.m.) at 1200 over 3.5 miles of privately owned track. Traffic Service Group, Air Line Pilots New Jersey Avenue, SE., Room W12– There are two (2) highway/rail crossings Association, International. 140, Washington, DC 20590. All at grade through the industrial property Bradley, D. Penrod, CEO/Executive documents in the public docket are also with no overpasses or bridges. The Director, Allegheny County Airport available for inspection and copying on railroad operates Monday to Friday, an Authority. the internet at http:// average of 4 hours per day, during Paul. M. Ruden, Senior Vice www.regulations.gov. daylight hours, with a 10 mph speed Anyone is able to search the President, Legal and Industry Affairs, restriction through the industrial electronic form of any written American Society of Travel Agents. complex. There have been no reports of communications received into any of Daniel Rutenberg, Vice President, glazing vandalism along this right-of- our dockets by name of the individual International Airline Passengers way since the operation of this submitting the document (or signing the Association. locomotive began in 1999. document, if submitted on behalf of an Melissa Sabatine, Vice President of The petitioner believes that this association, business, labor union, etc.). locomotive can be safely operated Regulatory Affairs, American You may review the DOT’s complete Association of Airport Executives. throughout the industrial complex with Privacy Act Statement in the Federal the current non-compliant safety-type Leo J. Schefer, President, Washington Register published on April 11, 2000 Airports Task Force. glazing. The cost to FLYJ for installation (Volume 65, Number 70; Pages 19477– of all new window frames and Lysa C. Scully, Assistant Director, 78). Customer, Cargo, Concessions and compliant FRA Types I & II glazing is Airport Services, the Port Authority of Issued in Washington, DC on February 4, significant with only a marginal 2008. New York and New Jersey. increase in safety due to the low speed. Jim Tabor, Vice President of Grady C. Cothen, Jr., Interested parties are invited to Operations, AirTran Airways. Deputy Associate Administrator for Safety participate in these proceedings by Standards and Program Development. Daniel A. Weiss, Managing Director, submitting written views, data, or International Policy and Regulatory [FR Doc. E8–2394 Filed 2–8–08; 8:45 am] comments. FRA does not anticipate Affairs, Continental Airlines. BILLING CODE 4910–06–P scheduling a public hearing in connection with these proceedings since Warren R. Wilkinson, Vice President the facts do not appear to warrant a of Government Affairs and Corporate DEPARTMENT OF TRANSPORTATION hearing. If any interested party desires Communications, Republic Airways. an opportunity for oral comment, they William H. Williams, Jr., Aviation Federal Railroad Administration should notify FRA, in writing, before Director, North Carolina Department of the end of the comment period and Transportation. Petition for Waiver of Compliance specify the basis for their request. Thomas E. Zoeller, President and In accordance with Part 211 of Title All communications concerning these CEO, National Air Carrier Association. 49 Code of Federal Regulations (CFR), proceedings should identify the [FR Doc. E8–2459 Filed 2–8–08; 8:45 am] notice is hereby given that the Federal appropriate docket number (e.g., Waiver BILLING CODE 4910–9X–P Railroad Administration (FRA) received Petition Docket Number FRA–2007–

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0025) and may be submitted by any of BNSF Railway Company above facility. All documents in the the following methods: [Docket Number FRA–2007–28812] public docket are also available for Web site: http://www.regulations.gov. inspection and copying on the Internet BNSF Railway Company (BNSF) seeks Follow the online instructions for at the docket facility’s Web site at a waiver of compliance with certain submitting comments. http://www.regulations.gov. requirements of 49 CFR part 232—Brake Fax: 202–493–2251. Anyone is able to search the System Safety Standards for Freight and electronic form of any written Mail: Docket Operations Facility, U.S. Other Non-Passenger Trains and Department of Transportation, 1200 communications and comments Equipment; End-of Train Devices, and received into any of our dockets by the New Jersey Avenue, SE., W12–140, 49 CFR part 215—Railroad Freight Car Washington, DC 20590. name of the individual submitting the Safety Standards. Specifically, BNSF comment (or signing the comment, if Hand Delivery: 1200 New Jersey seeks relief to permit trains received at submitted on behalf of an association, Avenue, SE., Room W12–140, the U.S./Mexico border at Eagle Pass, business, labor union, etc.). You may Washington, DC 20590, between 9 a.m. Texas (Eagle Pass), from the review DOT’s complete Privacy Act and 5 p.m., Monday through Friday, Ferrocarriles de Mexico, to move from Statement in the Federal Register except Federal Holidays. the interchange point without published on April 11, 2000 (Volume Communications received within 45 performing the regulatory tests and 65, Number 70; Pages 19477–78). days of the date of this notice will be inspections specified in CFR part 215 considered by FRA before final action is and § 232.205(a)(1) at that location. Issued in Washington, DC, on February 4, taken. Comments received after that BNSF proposes moving the trains from 2008. date will be considered as far as the border at Milepost (MP) 34 on the Grady C. Cothen, Jr., practicable. All written communications Union Pacific Railroad Company’s Eagle Deputy Associate Administrator for Safety concerning these proceedings are Pass subdivision, to the Ryan’s Ruin Standards and Program Development. available for examination during regular Horan Siding at MP 20, a distance of 14 [FR Doc. E8–2395 Filed 2–8–08; 8:45 am] business hours (9 a.m.–5 p.m.) at the miles where required FRA inspections BILLING CODE 4910–06–P above facility. All documents in the will be performed. BNSF claims that public docket are also available for granting the waiver would expedite inspection and copying on the Internet train movements and avoid blockages of DEPARTMENT OF TRANSPORTATION at the docket facility’s Web site at crossings in Eagle Pass. Federal Transit Administration http://www.regulations.gov. Interested parties are invited to Anyone is able to search the participate in these proceedings by FTA Supplemental Fiscal Year 2008 electronic form of any written submitting written views, data, or Apportionments and Allocations and communications and comments comments. FRA does not anticipate Program Information (Bus and Bus received into any of our dockets by the scheduling a public hearing in Facilities Program and Alternative name of the individual submitting the connection with these proceedings since Analysis Program Earmarks comment (or signing the comment, if the facts do not appear to warrant a Designated in the Committee Reports submitted on behalf of an association, hearing. If any interested party desires Accompanying the Consolidated business, labor union, etc.). You may an opportunity for oral comment, they Appropriations Act, 2008, Extended review DOT’s complete Privacy Act should notify FRA, in writing, before and Reprogrammed Earmarks and Statement in the Federal Register the end of the comment period and Corrections to Appendix A) published on April 11, 2000 (Volume specify the basis for their request. 65, Number 70; Pages 19477–78). All communications concerning these AGENCY: Federal Transit Administration proceedings should identify the (FTA), DOT. Issued in Washington, DC on February 4, 2008. appropriate docket number (e.g., Waiver ACTION: Notice. Petition Docket Number FRA–2007– Grady C. Cothen, Jr., 28812) and may be submitted by any of SUMMARY: Division K of the Deputy Associate Administrator for Safety the following methods: ‘‘Consolidated Appropriations Act, Standards and Program Development. Web site: http://www.regulations.gov. 2008’’ (Pub. L. 110–161), signed into [FR Doc. E8–2393 Filed 2–8–08; 8:45 am] Follow the online instructions for law by President Bush on December 26, BILLING CODE 4910–06–P submitting comments. 2007, made funds available for all of the Fax: 202–493–2251. surface transportation programs of the Mail: Docket Operations Facility, U.S. Department of Transportation (DOT) for DEPARTMENT OF TRANSPORTATION Department of Transportation, 1200 the Fiscal Year (FY) ending September 30, 2008. This notice provides Federal Railroad Administration New Jersey Avenue, SE., W12–140, Washington, DC 20590. information on the FY 2008 earmarks in Petition for Waiver of Compliance Hand Delivery: 1200 New Jersey the Bus and Bus Facilities program and Avenue, SE., Room W12–140, the Alternatives Analysis program that In accordance with part 211 of Title Washington, DC 20590, between 9 a.m. were in the committee reports that 49 Code of Federal Regulations (CFR), and 5 p.m., Monday through Friday, accompanied the Consolidated notice is hereby given that the Federal except Federal Holidays. Appropriations Act, 2008 and corrects Railroad Administration (FRA) received Communications received within 45 Appendix A of the January 28, 2008, a request for a waiver of compliance days of the date of this notice will be Federal Register notice. The notice also with certain requirements of its safety considered by FRA before final action is publishes prior year Bus and Bus standards. The individual petition is taken. Comments received after that Facilities and New Starts earmarks that described below, including the party date will be considered as far as were extended or reprogrammed in the seeking relief, the regulatory provisions practicable. All written communications committee reports. involved, the nature of the relief being concerning these proceedings are FOR FURTHER INFORMATION CONTACT: For requested, and the petitioner’s available for examination during regular general information about this notice arguments in favor of relief. business hours (9 a.m.–5 p.m.) at the contact Henrika Buchanan-Smith, Office

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of Transit Programs, at (202) 366–2053. transportation centers, intermodal that were extended or reprogrammed in Please contact the appropriate FTA terminals, park-and-ride stations, the committee reports are listed in Table regional office for any specific requests acquisition of replacement vehicles, bus 12A. for information or technical assistance. rebuilds, bus preventive maintenance, 2. Basis for Allocations Appendix A at the end of this notice passenger amenities such as passenger includes contact information for FTA shelters and bus stop signs, accessory Funds are provided annually under regional offices. and miscellaneous equipment such as Section 5309 for discretionary allocation SUPPLEMENTARY INFORMATION: mobile radio units, supervisory for bus and bus facilities projects. There vehicles, fare boxes, computers, and were 313 projects designated in the Table of Contents shop and garage equipment. Eligible committee reports accompanying the I. Overview applicants are State and local Consolidated Appropriations Act, 2008, II. FTA Programs governmental authorities. Eligible and 32 that were extended or A. Capital Investment Program (49 U.S.C. subrecipients include other public reprogrammed by the Act. 5309)—Bus and Bus-Related Facilities agencies, private companies engaged in 3. Requirements B. Capital Investment Program (49 U.S.C. public transportation and private non- 5309)—New Starts profit organizations. FTA honors Congressional earmarks C. Alternatives Analysis Program (49 for the purpose designated or for U.S.C. 5339) The information in this section Tables supplements the information that was purposes eligible under the program. 11A. FTA FY 2008 Section 5309 Bus and included in the FTA Apportionment The Consolidated Appropriations Act, Bus-related Allocations notice published in the Federal Register 2008, did not include the expanded 12A. FTA Prior Year Unobligated Section on January 28, 2008. eligibility of a ‘‘notwithstanding’’ 5309 Bus and Bus-related Facilities For more information about Bus and provision. However, section 186 of that Allocations Bus-Related Facilities contact Maria Act, in relevant part, states that funds 14. Revised FTA Prior Year Unobligated Wright, Office of Transit Programs, at provided within FTA’s accounts shall Section 5309 New Starts Allocations 22. FTA FY 2008 Section 5339 Alternative (202) 366–2053. be made available for eligible programs, projects and activities at a level of 98 Analysis Allocations 1. FY 2008 Funding Availability Appendix A percent of the corresponding amounts The Consolidated Appropriations Act, identified in the explanatory statement I. Overview 2008, provides $823,052,962 for the bus accompanying the Act for Alternatives This document allocates the FY 2008 and bus facilities program. The amount Analysis and Bus and Bus Facilities. funds designated for specific projects of funding for projects designated in Therefore, if an applicant wants to use under the committee reports Section 3044 of the Safe, Accountable, FY 2008 funds identified under the Bus accompanying Division K of the Flexible, Efficient Transportation Equity and Bus-Related Facilities Program for Consolidated Appropriations Act, 2008 Act: A Legacy For Users (SAFETEA–LU) eligible project activities outside the (Pub. L. 110–161, December 26, 2007), for Bus and Bus-Related Facilities in FY scope of the project description for the Bus and Bus Facilities program 2008 is $497,670,593. The amount of included in report language, it must and the Alternatives Analysis Program. funding for projects designated in the submit a request for a legislative change It also includes extended or redirected Consolidated Appropriations Act, 2008, to the House and Senate Committees on project funds identified in those reports, is $220,599,862. The balance remains Appropriations. but it does not include extended or unallocated, as shown in the following Also, grants made under the Bus and redirected project funds from the most table. The Consolidated Appropriations Bus-Related Facilities program must recent congressional clarification letter Act, 2008, included the proviso, ‘‘that meet all eligibility requirements as dated December 19, 2007. FTA will funds available to carry out the bus outlined in Section 5309 unless issue directions regarding those projects program under section 5309 of title 49, otherwise specified in law. not included at a later date. United States Code, which are otherwise allocated under this act or under 4. Period of Availability II. FTA Programs SAFETEA–LU, not more than 10 The FY 2008 Bus and Bus-Related This section of the notice covers FY percent may be expended in furtherance Facilities funds not obligated for their 2008 funding that was allocated to of the Department of Transportation’s original purpose as of September 30, projects under the Bus and Bus Congestion Initiative or any other new 2010, may be made available for other Facilities program and the Alternatives highway congestion initiative.’’ projects under 49 U.S.C. 5309. Projects Analysis Program in the committee that were reprogrammed in the reports accompanying the Consolidated BUS AND BUS FACILITY PROGRAM committee reports are available until Appropriations Act. It also includes September 30, 2010; however, projects New Starts and Bus and Bus Facilities Total Appropriation ...... $927,750,000 that were extended in the committee projects that were extended or Ob lim. Reduction/Rescis- reports are only available until reprogrammed in the committee reports. sion ...... ¥104,697,038 September 30, 2008. Oversight Deduction ...... ¥8,230,530 A. Capital Investment Program (49 Total Available for Alloca- B. Capital Investment Program (49 U.S.C. 5309)—Bus and Bus-Related tion ...... 814,822,432 U.S.C. 5309)—New Starts Facilities SAFETEA–LU Statutory Provisions Projects ...... 497,670,593 The information in this section This program provides capital Consolidated Appropria- supplements the information that was assistance for new and replacement tions Act Designations .. 220,599,862 included in the FTA Apportionment buses and related facilities. Funds are Unallocated ...... 96,551,977 notice published in the Federal Register allocated on a discretionary basis. on January 28, 2008, and includes Eligible purposes are acquisition of The Consolidated Appropriations Act, earmarks extended in report language. buses for fleet and service expansion, 2008, allocations for the Bus and Bus- For more information contact Cheryl bus maintenance and administrative Related Facilities program are listed in Oliver, Office of Program Management, facilities, transfer facilities, bus malls, Table 11A. The prior years’ earmarks at (202) 366–2053.

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1. FY 2008 Funding Availability Congress in the report accompanying of $24,691,100 derived from reducing The Consolidated Appropriations Act, the Consolidated Appropriations Act, the appropriated $25,000,000 by two 2008, provides $1,569,091,997 for 2008, remain available until September percent. Projects funded using FY 2008 Capital Investment Grants. The total 30, 2008. Alternative Analysis funding were amount allocated for New Starts 5. Other Program or Apportionment designated in the committee reports that including Small Starts is Related Information and Highlights accompanied the Act. Alternative Analysis Program allocations are $1,534,492,165, as shown in the table Prior year unobligated allocations for displayed in Table 22. below. New Starts in the amount of $361,829,170 remain available for 3. Requirements NEW STARTS obligation in FY 2008. This amount includes $164,608,910 in FY 2005 and Section 186 of Consolidated Total Appropriation ...... $1,569,091,997 prior years, $126,973,589 in FY 2006 Appropriations Act, in relevant part, Oversight Deduction ..... 15,690,920 and $70,246,671 in FY 2007 unobligated states that funds provided within FTA’s Total Funds to be Allo- cated ...... 1,553,401,077 allocations. These unobligated amounts accounts shall be made available for Funds Allocated to Spe- are displayed in Revised Table 14. eligible programs, projects and activities cific Projects in Table C. Alternatives Analysis Program (49 at a level of 98 percent of the a 13 ...... 1,534,492,165 U.S.C. 5339) corresponding amounts identified in the Unallocated Funds ...... 18,908,912 explanatory statement accompanying The Alternatives Analysis Program a the Act for Alternatives Analysis and Includes $20 million for the Denali Com- provides grants to States, authorities of mission and Alaska and Hawaii Ferry projects. Bus and Bus Facilities. Eligible projects the States, metropolitan planning include planning and corridor studies FY 2008 New Start project allocations organizations, and local government are listed in Table 13 of the Federal authorities to develop studies as part of and the adoption of locally preferred Register published on January 28, 2008. the transportation planning process. alternatives within the fiscally The revised carryover project These studies include an assessment of constrained Metropolitan allocations are listed in Revised Table a wide range of public transportation Transportation Plan for that area. Funds 14 of this notice. alternatives designed to address a awarded under the Alternatives transportation problem in a corridor or Analysis Program must be shown in the 2. Basis for Allocation subarea; the development of sufficient UPWP for MPO(s) with responsibility Congress included authorizations for information to enable the Secretary to for that area. Pre-award authority specific New Starts projects in make the findings of project justification applies to these funds after Congress SAFETEA–LU and included statutory and local financial commitment appropriates funds for these projects. takedowns from the program for Alaska required; the selection of a locally Unless otherwise specified in law, and Hawaii Ferryboats and the Denali preferred alternative; and the adoption grants made under the Alternatives Commission. The Consolidated of the locally preferred alternative as Analysis Program must meet all Appropriations Act, 2008, appropriated part of the state or regional long-range eligibility requirements as outlined in funds for specific projects and the transportation plan. Section 5309. If an applicant wants to statutory takedowns. Congress also The information in this section use FY 2008 funds identified under supplements the information that was extended several New Starts earmarks in Alternatives Analysis for eligible project the committee reports that accompanied included in the FTA Apportionment activities outside the scope of the the Consolidated Appropriations Act, notice published in the Federal Register project description included in report 2008. The carryover New Starts funding on January 28, 2008. For more is shown in Revised Table 14. information about this program contact language, it must submit a request for a Ron Fisher, Office of Planning and legislative change to the House and 3. Requirements Environment, at (202) 366–4033. Senate Committees on Appropriations. New Starts projects are subject to a 1. FY 2008 Funding Availability 4. Period of Availability series of approvals related to planning and project development set forth in 49 The Consolidated Appropriations Act, Funds designated for specific CFR Part 611. FTA has published a 2008, provides $24,691,100 to the Alternatives Analysis Program projects number of rulemakings and interim Alternatives Analysis Program (49 remain available for obligation for three guidance documents related to the New U.S.C. 5339). fiscal years, the year of appropriation Starts program since the passage of plus two additional fiscal years. The FY ALTERNATIVES ANALYSIS PROGRAM SAFETEA–LU. Grantees should 2008 funding for projects included in reference the FTA Web site at Total Appropriation ...... $25,000,000 this notice remains available through www.fta.dot.gov for the most current September 30, 2010. Alternatives program guidance about project Ob lim. Reduction/Re- scission ...... ¥308,900 Analysis funds not obligated in an FTA development and management. grant for their original purpose at the 4. Period of Availability Total Available ...... 24,691,100 end of the period of availability will New Starts funds remain available for generally be made available for other The project allocations are listed in projects. three fiscal years (including the fiscal Table 22. year the funds are made available or James S. Simpson 2. Basis for Allocation of Funds appropriated plus two additional years.) Administrator. FY 2008 funds remain available through The Consolidated Appropriations Act, September 30, 2010. Funds extended by 2008, provided an obligation limitation Appendix A

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PTA REGIONAL OFFICES

Richard H. Doyle, Regional Administrator, Region 1—Boston, Kendall Robert C. Patrick, Regional Administrator, Region 6—Ft. Worth, 819 Square, 55 Broadway, Suite 920, Cambridge, MA 02142–1093, Tel. Taylor Street, Room 8A36, Ft. Worth, TX 76102, Tel. 817 978–0550. 617 494–2055. States served: Connecticut, Maine, Massachusetts, New Hampshire, States served: Arkansas, Louisiana, Oklahoma, New Mexico and Rhode Island, and Vermont. Texas. Brigid Hynes-Cherin, Regional Administrator, Region 2—New York, Mokhtee Ahmad, Regional Administrator, Region 7— Kansas City, MO, One Bowling Green, Room 429, New York, NY 10004–1415, Tel. 901 Locust Street, Room 404, Kansas City, MO 64106, Tel. 816 No. 212 668–2170. 329–3920. States served: New Jersey, New York States served: Iowa, Kansas, Missouri, and Nebraska. Letitia Thompson, Regional Administrator, Region 3—Philadelphia, Terry Rosapep, Regional Administrator, Region 8—Denver, 12300 1760 Market Street, Suite 500, Philadelphia, PA 19103–4124, Tel. West Dakota Ave., Suite 310, Lakewood, CO 80228–2583, Tel. 720– 215 656–7100. 963–3300. States served: Delaware, Maryland, Pennsylvania, Virginia, West Vir- States served: Colorado, Montana, North Dakota, South Dakota, Utah, ginia, and District of Columbia. and Wyoming. Yvette Taylor, Regional Administrator, Region 4—Atlanta, 230 Peach- Leslie T. Rogers, Regional Administrator, Region 9—San Francisco, tree Street, NW, Suite 800, Atlanta, GA 30303, Tel. 404 865–5600. 201 Mission Street, Room 1650, San Francisco, CA 94105–1926, Tel. 415 744–3133. States served: Alabama, Florida, Georgia, Kentucky, Mississippi, North States served: American Samoa, Arizona, California, Guam Hawaii, Carolina, Puerto Rico, South Carolina, Tennessee, and Virgin Islands. Nevada, and the Northern Mariana, Islands Marisol Simon, Regional Administrator, Region 5—Chicago, 200 West Rick Krochalis, Regional Administrator, Region 10—Seattle, Jackson Adams Street, Suite 320, Chicago, IL 60606, Tel. 312 353–2789. Federal Building, 915 Second Avenue, Suite 3142, Seattle, WA 98174–1002, Tel. 206 220–7954. States served: Illinois, Indiana, Michigan, Minnesota, Ohio, and Wis- States served: Alaska, Idaho, Oregon, and Washington consin.

BILLING CODE 4910–57–P

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[FR Doc. 08–593 Filed 2–8–08; 8:45 am] received into any of our dockets by the of the test procedures concerning light BILLING CODE 4910–57–C name of the individual submitting the transmittance and optical distortion, comment (or signing the comment, if which has since been addressed. submitted on behalf of an association, The latest draft of the GTR specifies DEPARTMENT OF TRANSPORTATION business, labor union, etc.). You may performance requirements for various review DOT’s complete Privacy Act types of glazing (i.e., laminated and National Highway Traffic Safety Statement in the Federal Register toughened glass) intended for Administration published on April 11, 2000 (65 FR installation in Category 1 and 2 vehicles [Docket No. NHTSA–2008–0008 Notice 1] 19477–78) or you may visit http:// as defined in Special Resolution No. 1. DocketInfo.dot.gov. The requirements apply to glazing as an NHTSA’s Activities Under the United Docket: For access to the docket to item of equipment, and do not include Nations Economic Commission for read background documents or installation requirements for vehicles. Europe 1998 Global Agreement: comments received, go to http:// Performance requirements for some of Glazing www.regulations.gov and follow the the materials vary depending on online instructions, or visit the Docket whether the material is intended for AGENCY: National Highway Traffic Management Facility at the street installation as a windscreen or a pane. Safety Administration (NHTSA), DOT. address listed above. The draft includes requirements and ACTION: Request for comments. FOR FURTHER INFORMATION CONTACT: Mr. tests to ensure the mechanical strength, optical qualities and environmental SUMMARY: NHTSA is publishing this Ezana Wondimneh, Division Chief, resistance of glazing. notice to inform the public that there International Policy and Harmonization (NVS–133), National Highway Traffic Four sets of tests and requirements for may be a vote to adopt the Global mechanical properties are under Safety Administration, 1200 New Jersey Technical Regulation (GTR) on Glazing consideration in the GTR: a Avenue, SE., Washington, DC, 20590– at the March 2008 session of the World fragmentation test, a 227g steel ball 0001; Phone (202) 366–0846, Fax (202) Forum for Harmonization of Vehicle impact test, a 2.26kg steel ball impact 493–2280. Regulations (WP.29). In anticipation of test and a 10kg headform impact test. this vote, NHTSA is requesting SUPPLEMENTARY INFORMATION: At the Each of the first three of these tests was comments on this GTR to inform its March 2004 session of WP.29 the formal adopted from widely used procedures decision for the vote. Publication of this proposal to develop a GTR on safety currently in effect, with small information is in accordance with glazing, sponsored by Germany, was differences, in all three national NHTSA’s Statement of Policy regarding adopted with a modification to restrict regulations examined for this GTR Agency Policy Goals and Public the scope of the GTR to glass-based (European, Japanese and U.S. safety Participation in the Implementation of safety glazing. An informal working regulations). The fragmentation test the 1998 Global Agreement on Global group chaired by Germany was proposed in the draft GTR is based on Technical Regulations. subsequently established to develop the the current European approach, except DATES: Written comments may be GTR. In October 2004, NHTSA docketed that it was modified to use two different submitted to this agency by March 6, the draft GTR proposed by Germany (69 impact forces depending on the design 2008. FR 60460, 60462; October 8, 2004), but of glazing being evaluated. The 227g received no comments. At the ADDRESSES: You may submit comments and 2.26kg steel ball impact tests are [identified by DOT Docket No. NHTSA– November 2005 session of WP.29 AC.3 also very similar to the existing national 2008–0008, Notice 1] by any of the further agreed that the GTR would not regulations examined—with the following methods: include installation provisions and that exception of the drop height for the • Federal eRulemaking Portal: Go to the informal working group could small ball test. Based upon analysis http://www.regulations.gov. Follow the consider possible approaches to conducted by Japan, which determined online instructions for submitting including certification markings in the that the force from a drop height of 2.0m comments. GTR. However, it was later decided by replicated the force of a typical object • Mail: Docket Management Facility: WP.29 that a separate informal working that impacts a pane, it was decided that U.S. Department of Transportation, 1200 group would be tasked with examining a drop height of 2.0m could be New Jersey Avenue SE., West Building the issue of markings for all GTRs. specified. The headform test (which is Ground Floor, Room W12–140, Therefore, the glazing GTR only currently in the European and Japanese Washington, DC, 20590–0001. specifies the required markings to national regulations, but not in the U.S.) • Hand Delivery or Courier: West identify the type of glazing material under consideration for the GTR Building Ground Floor, Room W12–140, without reference to certification type specifies one drop height (1.5m), instead 1200 New Jersey Avenue S.E., between markings. Contracting parties to the of retaining the two separate drop 9 a.m. and 5 p.m. ET, Monday through 1998 Agreement will be able to require heights currently found in the European Friday, except Federal holidays. additional markings for identification of and Japanese regulations because the Telephone: 1–800–647–5527. manufacturer and the regulation(s) the purpose of the second height drop was • Fax: 202–493–2251 glazing is manufactured to comply with. already addressed in other tests Instructions: All submissions must On October 10, 2006, NHTSA specified in the GTR. Also, the include the agency name and docket published a new notice that described headform test is an optional number for this proposed collection of the progress made on the agency’s GTR requirement in the GTR. Each information. Note that all comments activities including the glazing GTR contracting party to the 1998 Agreement received will be posted without change (docket number NHTSA–2003–14395). can decide whether or not to apply this to http://www.regulations.gov including The notice included the draft GTR, provision in national/regional law. any personal information provided. provided discussions on several key Three types of optical qualities are Please see the Privacy Act heading issues, and requested public comments. addressed in the GTR: light below. A comment with regard to the GTR was transmission, optical distortion and Privacy Act: Anyone is able to search submitted by Pilkington North America double imaging. The minimum light the electronic form of all comments that sought to clarify an incorrect citing transmittance level for glazing requisite

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for the driver’s forward field of vision is Contracting Parties to the 1998 SUPPLEMENTARY INFORMATION: 70 percent, per U.S. and Japanese Agreement. SAE’s comments can be TTB Ruling 2008–1 regulations, rather than 75 percent found in the docket of this notice. required in European regulations. This The informal working group Standards of Identity and the Use of is supported through a cost-benefit submitted the draft GTR to the Working Semi-generic Designations and analysis, which shows no perceptible Party on General Safety Provisions Retsina on Certain European Wines difference in light transmission and (GRSG) for consideration at the October Imported into the United States savings in energy usage. The light 2007 session. The October 2007 session 27 CFR 4.21 Standards of Identity transmission test procedure used in the of GRSG voted to recommend the GTR GTR was adopted from the European to WP.29. The GTR is expected to be Wines using one of the 17 specified and Japanese test procedures, because voted on at the March 2008 session of designations listed in Annex II of the they are based on the driver’s field of WP.29. In anticipation of this vote, Agreement Between the United States of view and thus better approximate NHTSA requests comments on the draft America and the European Community normal driving conditions. For the other GTR. The draft GTR that will be on Trade in Wine, which originate in optical quality tests, the main considered can be found in the docket the applicable European Union member differences between the standards and for this notice. State and which comply with the regulations examined were not the Once the GTR is established through European Union standard for such requirements but just the test consensus voting at WP.29, NHTSA will wines, will meet the United States procedures. These differences were initiate domestic rulemaking to amend standard of identity or the trade resolved by selecting the European and its existing FMVSS to incorporate understanding for such wine. Japanese test procedures for the same approved provisions of the GTR. This TTB RUL. 2008–1 reasons mentioned above. will allow for further opportunity to The Alcohol and Tobacco Tax and The GTR also includes environmental consider comments from interested Trade Bureau has been asked if the resistance requirements related to parties through the usual rulemaking adoption of the Agreement Between the temperature change, fire, chemical process. If NHTSA’s rulemaking process United States of America and the resistance, abrasion, radiation, high leads it to either not adopt or to modify European Community on Trade in Wine temperature and humidity. The first aspects of the GTR, the agency will seek (‘‘the Agreement’’) and the related four of these were common to all the to amend the GTR in accordance with statutory change regarding semi-generic examined regulations. The remaining established procedures under the 1998 designations and Retsina affect the three requirements had minor Global Agreement and WP.29, as it standard of identity that applies to differences, which the GTR resolved by recently did with the door lock GTR. selecting the best alternatives. For certain European wines when they are example, in the case of resistance to Issued on: February 5, 2008. imported into the United States. Stephen R. Kratzke, radiation, the major difference between Background the American and European approaches Associate Administrator for Rulemaking. is that the former specifies 100 hours [FR Doc. E8–2474 Filed 2–8–08; 8:45 am] On March 10, 2006, the United States and the European Community (EC) exposure, using a specified radiation BILLING CODE 4910–59–P source, while the later specifies 100 signed the Agreement in which the hours of exposure at 1400 W/m2. Since United States agreed to seek to change the legal status of 17 designations listed the European procedure ensures a DEPARTMENT OF THE TREASURY constant level of exposure and allows in Annex II of the Agreement in order for alternative sources of UV radiation Alcohol and Tobacco Tax and Trade to restrict their use solely to wine during testing, it was deemed more Bureau originating in the applicable European flexible and was thus selected for the Union (EU) member State, except as GTR. [TTB Ruling 2008–1] provided for under a ‘‘grandfather’’ In July 2007, NHTSA received provision. These 17 designations are: comments on the draft GTR from the Standards of Identity and the Use of Burgundy, Claret, Chablis, Champagne, Society of Automotive Engineers (SAE) Semi-generic Designations and Chianti, Malaga, Marsala, Madeira, Glazing Committee. In October, the Retsina on Certain European Wines Moselle, Port, Retsina, Rhine Wine or agency made recommendations to the Imported into the United States Hock, Sauterne, Haut Sauterne, Sherry, informal working group to implement AGENCY: Alcohol and Tobacco Tax and and Tokay. The Agreement’s some of the SAE comments into the Trade Bureau, Treasury. ‘‘grandfather’’ provision allows persons GTR. The comments accepted in the or their successors in interest to ACTION: General notice. GTR included editorial corrections, continue to label non-EU wines with clarifications to Part A of the draft GTR SUMMARY: The Alcohol and Tobacco Tax one of the 17 listed designations if that (the technical rationale and and Trade Bureau issues this ruling to term is used only on labels for wine justifications section), adding a clarify the standard of identity that bearing the brand name, or the brand definition for ‘‘Uniformly toughened- applies to certain European wines when name and the fanciful name, if any, for glass’’, and clarifying what would be they are imported into the United which the applicable Certificate of Label considered a sharp edge for the States. Approval (COLA) or Certificate of fragmentation test. Several other points Exemption from Label Approval was were not incorporated since they fell DATES: This ruling is effective on issued by the Secretary of the Treasury outside the scope of the GTR, were not January 24, 2008. before March 10, 2006. relevant or already addressed in FOR FURTHER INFORMATION CONTACT: Legislation changing the legal status previous notices, or could not Lynn Gittes, Program Manager, of the 17 designations in the Agreement reasonably be pursued without International Trade Division, Alcohol was enacted by Congress and signed by conducting lengthy additional research and Tobacco Tax and Trade Bureau, the President on December 20, 2006, as and validation testing that is not 1310 G Street, NW., Washington, DC section 422 of the Tax Relief and Health supported by the majority of the 20220; telephone 202–927–8104. Care Act of 2006 (‘‘the Act’’), Public

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Law 109–432, 120 Stat. 2922, 2972. As DATES: The designation by the Director Company Limited; c/o Htoo Group amended by the Act, section 5388(c) of of OFAC of three individuals and four of Companies; c/o Htoo Trading the Internal Revenue Code of 1986 (26 entities identified in this notice, Company Limited (individual) U.S.C. 5388(c)) contains a provision pursuant to Executive Orders 13448, is [BURMA] regarding the use of the 17 designations effective February 5, 2008. 2. THEIN, U KYAW; Burma; 503 listed in the Agreement. The provision FOR FURTHER INFORMATION CONTACT: Sembawang Rd., #02–29, 757707, states that, in the case of wine of the EC, Assistant Director, Compliance Singapore; DOB 25 Oct 1947; the listed designations may be used only Outreach & Implementation, Office of citizen Burma; nationality Burma; if the wine conforms to the standard of Foreign Assets Control, Department of National ID No. S2733659J identity, if any, for such wine contained the Treasury, 1500 Pennsylvania (Singapore) issued 7 Jul 2005; c/o in the regulations issued under section Avenue, NW. (Treasury Annex), Air Bagan Holdings Pte. Ltd.; c/o 5388 (27 CFR 24.257 and, by reference, Washington, DC 20220, Tel.: 202/622– Htoo Wood Products Pte. Ltd.; c/o 27 CFR 4.21) or, if there is no such 2490. Pavo Aircraft Leasing Pte. Ltd.; c/o standard, to the trade understanding of Pavo Trading Pte. Ltd.; permanent SUPPLEMENTARY INFORMATION: such class and type. All other wines resident Singapore (individual) bearing the listed designations are Electronic and Facsimile Availability [BURMA] subject to two additional requirements: Information about these designations 3. THIHA (a.k.a. THI HA); Burma; DOB (1) That the wine be marked with an and additional information concerning 24 Jun 1960; c/o Htoo Group of appropriate appellation of origin OFAC are available from OFAC’s Web Companies; c/o Htoo Trading disclosing the origin of the wine, and (2) site (http://www.treas.gov/ofac) or via Company Limited (individual) that the person, or the person’s facsimile through a 24-hour fax-on- [BURMA] successor in interest, using a listed demand service, Tel.: 202/622–0077. designation hold a COLA or Certificate Entities of Exemption from Label Approval Background 1. AYER SHWE WAH COMPANY issued by the Secretary of the Treasury On October 18, 2007, the President LIMITED (a.k.a. AYER SHWE WA; before March 10, 2006, for a wine label signed Executive Order 13448 (the a.k.a AYE YAR SHWE WAH; a.k.a. bearing that designation and that brand ‘‘Order’’) pursuant to, inter alia, the AYEYA SHWE WAR COMPANY); 5 name or brand name and fanciful name. International Emergency Economic Pyay Road, Hlaing Township, Held, that an EU wine product that Powers Act (50 U.S.C. 1701, et. seq.). In Yangon, Burma [BURMA] bears one of the 17 designations listed the Order, the President took additional 2. HTOO GROUP OF COMPANIES; 5 in section 5388(c)(3)(C)(i) of the Internal steps with respect to, and expanded, the Pyay Road, Hlaing Township, Revenue Code of 1986 and that national emergency declared in Yangon, Burma [BURMA] conforms to the EU standard for such Executive Order 13047 of May 20, 1997, 3. MYANMAR AVIA EXPORT wine complies with the United States to address the Government of Burma’s COMPANY LIMITED (a.k.a. standard of identity or the trade continued repression of the democratic MYANMAR AVIA EXPORT) understanding for such wine. The recent opposition. The President identified [BURMA] amendment to 26 U.S.C. 5388(c) twelve individuals and entities as 4. PAVO AIRCRAFT LEASING PTE. concerning semi-generic designations subject to the economic sanctions in the LTD.; 3 Shenton Way, #24–02 does not require such EU wine products Annex to the Order. Shenton House, 068805, Singapore imported into the United States to meet Section 1 of the Order blocks, with [BURMA] a new standard of identity. certain exceptions, all property and Dated: February 5, 2008. Signed: January 24, 2008. interests in property that are in, or Adam J. Szubin, John J. Manfreda, hereafter come within, the United Director, Office of Foreign Assets Control. Administrator. States, or within the possession or [FR Doc. E8–2425 Filed 2–8–08; 8:45 am] [FR Doc. E8–2392 Filed 2–8–08; 8:45 am] control of United States persons, of the BILLING CODE 4811–42–P BILLING CODE 4810–31–P persons listed in the Annex, as well as those persons determined by the Secretary of the Treasury, after DEPARTMENT OF THE TREASURY DEPARTMENT OF THE TREASURY consultation with the Secretary of State, to satisfy any of the criteria set forth in Office of Foreign Assets Control Office of Foreign Assets Control subparagraphs (b)(i)–(b)(vi) of Section 1. On February 5, 2008, the Director of Additional Designations of Individuals Additional Designations of Individuals OFAC exercised the Secretary of the Pursuant to Executive Order 13448 Pursuant to Executive Order 13448 Treasury’s authority to designate, AGENCY: Office of Foreign Assets pursuant to one or more of the criteria AGENCY: Office of Foreign Assets Control, Treasury. set forth in Section 1, subparagraphs Control, Treasury. ACTION: Notice. (b)(i)–(b)(vi) of the Order, the following ACTION: Notice. three individuals and four entities, SUMMARY: The Treasury Department’s whose names have been added to the SUMMARY: The Treasury Department’s Office of Foreign Assets Control list of Specially Designated Nationals Office of Foreign Assets Control (‘‘OFAC’’) is publishing the names of and whose property and interests in (‘‘OFAC’’) is publishing the names of three newly-designated individuals and property are blocked pursuant to four newly-designated individuals four entities whose property and Executive Order 13448: whose property and interests in interests in property are blocked property are blocked pursuant to pursuant to Executive Order 13448 of Individuals Executive Order 13448 of October 18, October 18, 2007, ‘‘Blocking Property 1. MANN, AUNG THET (a.k.a. SHWE 2007, ‘‘Blocking Property and and Prohibiting Certain Transactions MANN KO KO); Burma; DOB 19 Prohibiting Certain Transactions Related Related to Burma.’’ Jun 1977; c/o Ayer Shwe Wah to Burma.’’

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DATES: The designation by the Director 2. MYINT, TIN LIN (a.k.a. DAW TIN Titles: Application for Commercial of OFAC of eleven individuals LIN MYINT); Burma; DOB 25 Jan Product License and Applications for identified in this notice, pursuant to 1947; wife of Ye Myint (individual) Intellectual Property Use. Executive Orders 13448, is effective [BURMA] OMB Number: 1525–0013. February 5, 2008. 3. SOE, MYINT MYINT (a.k.a. DAW Abstract: The two application forms FOR FURTHER INFORMATION CONTACT: MYINT MYINT SOE); Burma; DOB allow individuals and entities to apply Assistant Director, Compliance 15 Jan 1953; wife of Nyan Win for permissions and licenses to use Outreach & Implementation, Office of (individual) [BURMA] United States Mint owned or controlled Foreign Assets Control, Department of 4. THET, KHIN LAY (a.k.a. DAW KHIN the Treasury, 1500 Pennsylvania LAY THET); Burma; DOB 19 Jun intellectual property. Avenue, NW. (Treasury Annex), 1947; wife of Thura Shwe Mann Current Actions: The United States Washington, DC 20220, Tel.: 202/622– (individual) [BURMA] Mint reviews and assesses permission 2490 Dated: February 5, 2008. requests and applications for United States Mint intellectual property SUPPLEMENTARY INFORMATION: Adam J. Szubin, Director, Office of Foreign Assets Control. licenses. Electronic and Facsimile Availability [FR Doc. E8–2426 Filed 2–8–08; 8:45 am] Type of Review: Extension of a Information about these designations BILLING CODE 4811–42–P currently approved collection. and additional information concerning Affected Public: Businesses or other- OFAC are available from OFAC’s Web for-profit; not-for-profit institutions; DEPARTMENT OF THE TREASURY site (www.treas.gov/ofac) or via State, Local, or Tribal Government; and facsimile through a 24-hour fax-on- individuals or households. demand service, Tel.: 202/622–0077. United States Mint Estimated Number of Respondents: Background Currently Approved Information The estimated number of annual Collection: Comment Request for respondents is 135. On October 18, 2007, the President Application for Commercial Product signed Executive Order 13448 (the License and Application for Intellectual Estimated Total Annual Burden ‘‘Order’’) pursuant to, inter alia, the Property Use Forms Hours: The estimated number of annual International Emergency Economic burden hours is 150. Powers Act (50 U.S.C. 1701, et seq.). In AGENCY: United States Mint. Requests for Comments: Comments the Order, the President took additional ACTION: Notice and request for submitted in response to this notice will steps with respect to, and expanded, the comments. national emergency declared in be summarized and/or included in the request for Office of Management and Executive Order 13047 of May 20, 1997, SUMMARY: The Department of the Budget (OMB) approval. All comments to address the Government of Burma’s Treasury invites the general public and will become a matter of public record. continued repression of the democratic other Federal agencies to take this opposition. The President identified opportunity to comment on currently Comments are invited on: (a) Whether twelve individuals and entities as approved information collection 1525– the collection of information is subject to the economic sanctions in the 0013, as required by the Paperwork necessary for the proper performance of Annex to the Order. Reduction Act of 1995, Public Law 104– the functions of the agency, including Section 1 of the Order blocks, with 13 (44 U.S.C. 3506(c)(2)(A)). Currently, whether the information shall have certain exceptions, all property and the United States Mint, a bureau of the practical utility; (b) the accuracy of the interests in property that are in, or Department of the Treasury, is soliciting agency’s estimate of the burden of the hereafter come within, the United comments on the United States Mint collection of information; (c) ways to States, or within the possession or Application for Commercial Product enhance the quality, utility, and clarity control of United States persons, of the License and Application for Intellectual of the information to be collected; (d) persons listed in the Annex, as well as Property Use forms. ways to minimize the burden of the those persons determined by the DATES: Written comments should be collection of information on Secretary of the Treasury, after received on or before April 11, 2008 to respondents, including through the use consultation with the Secretary of State, be assured of consideration. of automated collection techniques or to satisfy any of the criteria set forth in ADDRESSES: other forms of information technology; subparagraphs (b)(i)–(b)(vi) of Section 1. Direct all written comments to Yvonne Pollard, Chief, Compliance and (e) estimates of capital or start-up On February 5, 2008, the Director of costs and costs of operation, OFAC exercised the Secretary of the Division, United States Mint, 801 9th Street, NW., 8th Floor, Washington, DC maintenance, and purchase of services Treasury’s authority to designate, to provide information. pursuant to one or more of the criteria 20220; (202) 354–6784 (this is not a toll- set forth in Section 1, subparagraphs free number); Dated: February 6, 2008. (b)(i)–(b)(vi) of the Order, the following [email protected]. Yvonne Pollard, four individuals, whose names have FOR FURTHER INFORMATION CONTACT: Chief, Compliance Division, United States been added to the list of Specially Requests for additional information or Mint. Designated Nationals and whose copies of the information collection [FR Doc. E8–2456 Filed 2–8–08; 8:45 am] property and interests in property are package should be directed to Yvonne BILLING CODE 4810–37–P blocked pursuant to Executive Order Pollard, Chief, Compliance Division, 13448: United States Mint, 801 9th Street, NW., 1. KO, MYINT MYINT (a.k.a. DAW 8th Floor, Washington, DC 20220; (202) MYINT MYINT KO); Burma; DOB 354–6784 (this is not a toll-free 11 Jan 1946; wife of Saw Tun number); [email protected]. (individual) [BURMA] SUPPLEMENTARY INFORMATION:

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DEPARTMENT OF THE TREASURY FOR FURTHER INFORMATION CONTACT: numismatic business, and the general Requests for additional information or public. United States Mint copies of the information collection Estimated Number of Respondents: package should be directed to Yvonne The estimated number of annual Revision to Currently Approved Pollard; Chief, Compliance Division; respondents is 85,698. Information Collection: Comment United States Mint; 801 9th Street, NW., Request for Customer Satisfaction and Estimated Total Annual Burden 8th Floor; Washington, DC 20220; (202) Hours: The estimated number of annual Opinion Surveys and Focus Group 354–6784 (this is not a toll-free Interviews burden hours is 20,271. number); [email protected]. Requests for Comments: Comments AGENCY: United States Mint. SUPPLEMENTARY INFORMATION: submitted in response to this notice will ACTION: Notice and request for Title: United States Mint customer be summarized and/or included in the comments. satisfaction and opinion surveys and request for OMB approval. All focus group interviews. comments will become a matter of SUMMARY: The Department of the public record. Comments are invited on: Treasury, as part of its continuing effort OMB Number: 1525–0012. (a) Whether the collection of to reduce paperwork and respondent Abstract: The proposed customer information is necessary for the proper burden, invites the general public and satisfaction and opinion surveys and performance of the functions of the other Federal agencies to take this focus group interviews will allow the agency, including whether the opportunity to comment on revisions to United States Mint to assess the information shall have practical utility; currently approved information acceptance of, potential demand for, collection 1525–0012, as required by the and barriers to acceptance/increased (b) the accuracy of the agency’s estimate Paperwork Reduction Act of 1995, demand for current and future products, of the burden of the collection of Public Law 104–13 (44 U.S.C. and the needs and desires of customers information; (c) ways to enhance the 3506(c)(2)(A)). Currently, the United for more efficient, economical services. quality, utility, and clarity of the States Mint, a bureau of the Department Current Actions: The United States information to be collected; (d) ways to of the Treasury, is soliciting comments Mint conducts surveys and focus group minimize the burden of the collection of on the United States Mint customer interviews to measure customer opinion information on respondents, including satisfaction and opinion surveys and and assess acceptance of, potential through the use of automated collection focus group interviews. demand for and barriers to acceptance/ techniques or other forms of information technology; and (e) estimates of capital DATES: Written comments should be increased demand for United States or start-up costs and costs of operation, received on or before April 11, 2008 to Mint products, and to determine the maintenance, and purchase of services be assured of consideration. level of satisfaction of United States to provide information. ADDRESSES: Direct all written comments Mint customers and the public. to Yvonne Pollard; Chief, Compliance Type of Review: Revision of estimated Dated: February 6, 2008. Division; United States Mint; 801 9th annual respondents and estimated Yvonne Pollard, Street, NW., 8th Floor; Washington, DC annual burden hours. Chief, Compliance Division, United States 20220; (202) 354–6784 (this is not a toll- Affected Public: The affected public Mint. free number); includes serious and casual numismatic [FR Doc. E8–2455 Filed 2–8–08; 8:45 am] [email protected]. collectors, dealers and persons in the BILLING CODE 4810–37–P

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Part II

Reader Aids Cumulative List of Public Laws 110th Congress, First Session

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CUMULATIVE LIST OF PUBLIC LAWS This is the cumulative list of public laws for the 110th Congress, First Session. Other cumulative lists (1993– 2007) are available online at http://www.archives.gov/federal-register/laws/past/index.html. Comments may be addressed to the Director, Office of the Federal Register, Washington, DC 20408 or send e-mail to [email protected].

The text of laws may be ordered in individual pamphlet form (referred to as ‘‘slip laws’’) from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402 (phone, 202–512–2470). The text will also be made available on the Internet from GPO Access at http://www.gpoacess.gov/plaws/index.html. Some laws may not yet be available online or for purchase.

121 Public Law Title Approved Stat.

110–1 ...... To redesignate the White Rocks National Recreation Area in the State of Vermont as the ‘‘Rob- Jan. 17, 2007 ...... 3 ert T. Stafford White Rocks National Recreation Area’’. 110–2 ...... House Page Board Revision Act of 2007 ...... Feb. 2, 2007 ...... 4 110–3 ...... To provide a new effective date for the applicability of certain provisions of law to Public Law Feb. 8, 2007 ...... 6 105-331. 110–4 ...... To provide for an additional temporary extension of programs under the Small Business Act Feb. 15, 2007 ..... 7 and the Small Business Investment Act of 1958 through July 31, 2007, and for other pur- poses. 110–5 ...... Making further continuing appropriations for the fiscal year 2007, and for other purposes ...... Feb. 15, 2007 ..... 8 110–6 ...... Antitrust Modernization Commission Extension Act of 2007 ...... Feb. 26, 2007 ..... 61 110–7 ...... To designate the facility of the United States Postal Service located at 1300 North Frontage Mar. 7, 2007 ...... 62 Road West in Vail, Colorado, as the ‘‘Gerald R. Ford, Jr. Post Office Building’’. 110–8 ...... To designate the facility of the United States Postal Service located at 152 North 5th Street in Mar. 7, 2007 ...... 63 Laramie, Wyoming, as the ‘‘Gale W. McGee Post Office’’. 110–9 ...... To designate the facility of the United States Postal Service located at 1700 Main Street in Lit- Mar. 7, 2007 ...... 64 tle Rock, Arkansas, as the ‘‘Scipio A. Jones Post Office Building’’. 110–10 ...... To designate the facility of the United States Postal Service located at 16150 Aviation Loop Mar. 7, 2007 ...... 65 Drive in Brooksville, Florida, as the ‘‘Sergeant Lea Robert Mills Brooksville Aviation Branch Post Office’’. 110–11 ...... To designate the facility of the United States Postal Service located at 3903 South Congress Mar. 7, 2007 ...... 66 Avenue in Austin, Texas, as the ‘‘Sergeant Henry Ybarra III Post Office Building’’. 110–12 ...... To designate the facility of the United States Postal Service located at 2633 11th Street in Rock Mar. 15, 2007 ..... 67 Island, Illinois, as the ‘‘Lane Evans Post Office Building’’. 110–13 ...... To designate the United States courthouse located at 555 Independence Street in Cape Mar. 21, 2007 ..... 68 Girardeau, Missouri, as the ‘‘Rush Hudson Limbaugh, Sr. United States Courthouse’’. 110–14 ...... To designate the United States courthouse at South Federal Place in Santa Fe, New Mexico, as Mar. 21, 2007 ..... 69 the ‘‘Santiago E. Campos United States Courthouse’’. 110–15 ...... To designate the Federal building located at 400 Maryland Avenue Southwest in the District Mar. 23, 2007 ..... 70 of Columbia as the ‘‘Lyndon Baines Johnson Department of Education Building’’. 110–16 ...... To provide for the construction, operation, and maintenance of an arterial road in St. Louis Mar. 28, 2007 ..... 71 County, Missouri. 110–17 ...... NATO Freedom Consolidation Act of 2007 ...... Apr. 9, 2007 ...... 73 110–18 ...... National Breast and Cervical Cancer Early Detection Program Reauthorization Act of 2007 ...... Apr. 20, 2007 ..... 80 110–19 ...... Older Americans Reauthorization Technical Corrections Act ...... Apr. 23, 2007 ..... 84 110–20 ...... To redesignate the Federal building located at 167 North Main Street in Memphis, Tennessee, May 2, 2007 ...... 86 as the ‘‘Clifford Davis and Odell Horton Federal Building’’. 110–21 ...... To amend the Foreign Affairs Reform and Restructuring Act of 1998 to reauthorize the United May 2, 2007 ...... 87 States Advisory Commission on Public Diplomacy. 110–22 ...... Animal Fighting Prohibition Enforcement Act of 2007 ...... May 3, 2007 ...... 88 110–23 ...... Trauma Care Systems Planning and Development Act of 2007 ...... May 3, 2007 ...... 90 110–24 ...... Judicial Disclosure Responsibility Act ...... May 3, 2007 ...... 100 110–25 ...... To designate the Federal building and United States courthouse and customhouse located at May 8, 2007 ...... 102 515 West First Street in Duluth, Minnesota, as the ‘‘Gerald W. Heaney Federal Building and United States Courthouse and Customhouse’’. 110–26 ...... The American National Red Cross Governance Modernization Act of 2007 ...... May 11, 2007 ..... 103 110–27 ...... To designate the facility of the United States Postal Service located at 5757 Tilton Avenue in May 25, 2007 ..... 111 Riverside, California, as the ‘‘Lieutenant Todd Jason Bryant Post Office’’. 110–28 ...... U.S. Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropria- May 25, 2007 ..... 112 tions Act, 2007. 110–29 ...... To designate the facility of the United States Postal Service located at 60 Calle McKinley, West June 1, 2007 ...... 219 in Mayaguez, Puerto Rico, as the ‘‘Miguel Angel Garcı´a Me´ndez Post Office Building’’. 110–30 ...... To designate the facility of the United States Postal Service located at 500 West Eisenhower June 1, 2007 ...... 220 Street in Rio Grande City, Texas, as the ‘‘Lino Perez, Jr. Post Office’’. 110–31 ...... To designate the facility of the United States Postal Service located at 4230 Maine Avenue in June 1, 2007 ...... 221 Baldwin Park, California, as the ‘‘Atanacio Haro-Marin Post Office’’. 110–32 ...... To designate the facility of the United States Postal Service located at 320 South Lecanto June 1, 2007 ...... 222 Highway in Lecanto, Florida, as the ‘‘Sergeant Dennis J. Flanagan Lecanto Post Office Build- ing’’. 110–33 ...... To amend the District of Columbia Home Rule Act to conform the District charter to revisions June 1, 2007 ...... 223 made by the Council of the District of Columbia relating to public education. 110–34 ...... Preserving United States Attorney Independence Act of 2007 ...... June 14, 2007 ..... 224 110–35 ...... Preservation Approval Process Improvement Act of 2007 ...... June 15, 2007 ..... 225 110–36 ...... To increase the number of Iraqi and Afghani translators and interpreters who may be admitted June 15, 2007 ..... 227 to the United States as special immigrants, and for other purposes. 110–37 ...... Native American Home Ownership Opportunity Act of 2007 ...... June 18, 2007 ..... 229 110–38 ...... To provide that the Executive Director of the Inter-American Development Bank or the Alter- June 21, 2007 ..... 230 nate Executive Director of the Inter-American Development Bank may serve on the Board of Directors of the Inter-American Foundation. 110–39 ...... To authorize the transfer of certain funds from the Senate Gift Shop Revolving Fund to the June 21, 2007 ..... 231 Senate Employee Child Care Center.

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121 Public Law Title Approved Stat.

110–40 ...... To repeal certain sections of the Act of May 26, 1936, pertaining to the Virgin Islands ...... June 29, 2007 ..... 232 110–41 ...... Army Specialist Joseph P. Micks Federal Flag Code Amendment Act of 2007 ...... June 29, 2007 ..... 233 110–42 ...... To extend the authorities of the Andean Trade Preference Act until February 29, 2008 ...... June 30, 2007 ..... 235 110–43 ...... To designate the facility of the United States Postal Service located at 127 East Locust Street July 3, 2007 ...... 237 in Fairbury, Illinois, as the ‘‘Dr. Francis Townsend Post Office Building’’. 110–44 ...... First Higher Education Extension Act of 2007 ...... July 3, 2007 ...... 238 110–45 ...... To redesignate a Federal building in Albuquerque, New Mexico, as the ‘‘Raymond G. Murphy July 5, 2007 ...... 239 Department of Veterans Affairs Medical Center’’. 110–46 ...... To designate a United States courthouse located in Fresno, California, as the ‘‘Robert E. Coyle July 5, 2007 ...... 240 United States Courthouse’’. 110–47 ...... Grand Teton National Park Extension Act of 2007 ...... July 13, 2007 ...... 241 110–48 ...... To provide for the extension of transitional medical assistance (TMA) and the abstinence edu- July 18, 2007 ...... 244 cation program through the end of the fiscal year 2007, and for other purposes. 110–49 ...... Foreign Investment and National Security Act of 2007 ...... July 26, 2007 ...... 246 110–50 ...... Passport Backlog Reduction Act of 2007 ...... July 30, 2007 ...... 261 110–51 ...... Second Higher Education Extension Act of 2007 ...... July 31, 2007 ...... 263 110–52 ...... Approving the renewal of import restrictions contained in the Burmese Freedom and Democ- Aug. 1, 2007 ...... 264 racy Act of 2003, and for other purposes. 110–53 ...... Implementing Recommendations of the 9/11 Commission Act of 2007 ...... Aug. 3, 2007 ...... 266 110–54 ...... To amend title XVIII of the Social Security Act to provide an exception to the 60-day limit on Aug. 3, 2007 ...... 551 Medicare reciprocal billing arrangements between two physicians during the period in which one of the physicians is ordered to active duty as a member of a reserve component of the Armed Forces. 110–55 ...... Protect America Act of 2007 ...... Aug. 5, 2007 ...... 552 110–56 ...... To authorize additional funds for emergency repairs and reconstruction of the Interstate I-35 Aug. 6, 2007 ...... 558 bridge located in Minneapolis, Minnesota, that collapsed on August 1, 2007, to waive the $100,000,000 limitation on emergency relief funds for those emergency repairs and recon- struction, and for other purposes. 110–57 ...... To provide for an additional temporary extension of programs under the Small Business Act Aug. 8, 2007 ...... 560 and the Small Business Investment Act of 1958 through December 15, 2007, and for other purposes. 110–58 ...... To designate the facility of the United States Postal Service located at 6301 Highway 58 in Aug. 9, 2007 ...... 561 Harrison, Tennessee, as the ‘‘Claude Ramsey Post Office’’. 110–59 ...... To designate the facility of the United States Postal Service located at 508 East Main Street in Aug. 9, 2007 ...... 562 Seneca, South Carolina, as the ‘‘S/Sgt Lewis G. Watkins Post Office Building’’. 110–60 ...... To designate the facility of the United States Postal Service located at 118 Minner Avenue in Aug. 9, 2007 ...... 563 Bakersfield, California, as the ‘‘Buck Owens Post Office’’. 110–61 ...... To designate the facility of the United States Postal Service located at 4551 East 52nd Street in Aug. 9, 2007 ...... 564 Odessa, Texas, as the ‘‘Staff Sergeant Marvin ‘Rex’ Young Post Office Building’’. 110–62 ...... To designate the facility of the United States Postal Service located at 896 Pittsburgh Street in Aug. 9, 2007 ...... 565 Springdale, Pennsylvania, as the ‘‘Rachel Carson Post Office Building’’. 110–63 ...... To designate the facility of the United States Postal Service located at 561 Kingsland Avenue Aug. 9, 2007 ...... 566 in University City, Missouri, as the ‘‘Harriett F. Woods Post Office Building’’. 110–64 ...... To designate the facility of the United States Postal Service located at 601 Banyan Trail in Aug. 9, 2007 ...... 567 Boca Raton, Florida, as the ‘‘Leonard W. Herman Post Office’’. 110–65 ...... To designate the facility of the United States Postal Service located at 11033 South State Street Aug. 9, 2007 ...... 568 in Chicago, Illinois, as the ‘‘Willye B. White Post Office Building’’. 110–66 ...... To designate the facility of the United States Postal Service located at 20805 State Route 125 Aug. 9, 2007 ...... 569 in Blue Creek, Ohio, as the ‘‘George B. Lewis Post Office Building’’. 110–67 ...... To designate the facility of the United States Postal Service located at 14536 State Route 136 Aug. 9, 2007 ...... 570 in Cherry Fork, Ohio, as the ‘‘Staff Sergeant Omer T. ’O.T.’ Hawkins Post Office’’. 110–68 ...... To designate the facility of the United States Postal Service located at 408 West 6th Street in Aug. 9, 2007 ...... 571 Chelsea, Oklahoma, as the ‘‘Clem Rogers McSpadden Post Office Building’’. 110–69 ...... America COMPETES Act ...... Aug. 9, 2007 ...... 572 110–70 ...... To designate the facility of the United States Postal Service located at 3916 Milgen Road in Aug. 9, 2007 ...... 719 Columbus, Georgia, as the ‘‘Frank G. Lumpkin, Jr. Post Office Building’’. 110–71 ...... To designate the facility of the United States Postal Service located at 309 East Linn Street in Aug. 9, 2007 ...... 720 Marshalltown, Iowa, as the ‘‘Major Scott Nisely Post Office’’. 110–72 ...... To designate the facility of the United States Postal Service located at 301 Boardwalk Drive in Aug. 9, 2007 ...... 721 Fort Collins, Colorado, as the ‘‘Dr. Karl E. Carson Post Office Building’’. 110–73 ...... To designate the facility of the United States Postal Service located at 103 South Getty Street Aug. 9, 2007 ...... 722 in Uvalde, Texas, as the ‘‘Dolph Briscoe, Jr. Post Office Building’’.. 110–74 ...... To amend chapter 89 of title 5, United States Code, to make individuals employed by the Roo- Aug. 9, 2007 ...... 723 sevelt Campobello International Park Commission eligible to obtain Federal health insurance. 110–75 ...... To authorize the Coquille Indian Tribe of the State of Oregon to convey land and interests in Aug. 13, 2007 .... 724 land owned by the Tribe. 110–76 ...... To authorize the Saginaw Chippewa Tribe of Indians of the State of Michigan to convey land Aug. 13, 2007 .... 725 and interests in lands owned by the Tribe. 110–77 ...... To improve the use of a grant of a parcel of land to the State of Idaho for use as an agricultural Aug. 13, 2007 .... 726 college, and for other purposes. 110–78 ...... To waive application of the Indian Self-Determination and Education Assistance Act to a spe- Aug. 13, 2007 .... 727 cific parcel of real property transferred by the United States to 2 Indian tribes in the State of Oregon, and for other purposes. 110–79 ...... Granting the consent and approval of the Congress to an interstate forest fire protection com- Aug. 13, 2007 .... 730 pact. 110–80 ...... To amend the U.S. Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability Aug. 13, 2007 .... 734 Appropriations Act, 2007, to strike a requirement relating to forage producers. 110–81 ...... Honest Leadership and Open Government Act of 2007 ...... Sept. 14, 2007 .... 735 110–82 ...... Native American $1 Coin Act ...... Sept. 20, 2007 .... 777 110–83 ...... United States-Poland Parliamentary Youth Exchange Program Act of 2007 ...... Sept. 20, 2007 .... 781 110–84 ...... College Cost Reduction and Access Act ...... Sept. 27, 2007 .... 784 110–85 ...... Food and Drug Administration Amendments Act of 2007 ...... Sept. 27, 2007 .... 823

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121 Public Law Title Approved Stat.

110–86 ...... To provide authority to the Peace Corps to provide separation pay for host country resident Sept. 27, 2007 .... 979 personal services contractors of the Peace Corps. 110–87 ...... To designate the facility of the United States Postal Service located at 365 West 125th Street in Sept. 28, 2007 .... 980 New York, New York, as the ‘‘Percy Sutton Post Office Building’’. 110–88 ...... To designate a portion of Interstate Route 395 located in Baltimore, Maryland, as ‘‘Cal Ripken Sept. 28, 2007 .... 981 Way’’. 110–89 ...... To extend the trade adjustment assistance program under the Trade Act of 1974 for 3 months. Sept. 28, 2007 .... 982 110–90 ...... TMA, Abstinence Education, and QI Programs Extension Act of 2007 ...... Sept. 29, 2007 .... 984 110–91 ...... Increasing the statutory limit on the public debt ...... Sept. 29, 2007 .... 988 110–92 ...... Making continuing appropriations for the fiscal year 2008, and for other purposes ...... Sept. 29, 2007 .... 989 110–93 ...... To make permanent the waiver authority of the Secretary of Education with respect to student Sept. 30, 2007 .... 999 financial assistance during a war or other military operation or national emergency. 110–94 ...... Pesticide Registration Improvement Renewal Act ...... Oct. 9, 2007 ...... 1000 110–95 ...... To award a congressional gold medal to Michael Ellis DeBakey, M.D...... Oct. 16, 2007 ..... 1008 110–96 ...... International Emergency Economic Powers Enhancement Act ...... Oct. 16, 2007 ..... 1011 110–97 ...... To extend the District of Columbia College Access Act of 1999 ...... Oct. 24, 2007 ..... 1013 110–98 ...... To designate the facility of the United States Postal Service located at 69 Montgomery Street Oct. 24, 2007 ..... 1014 in Jersey City, New Jersey, as the ‘‘Frank J. Guarini Post Office Building’’. 110–99 ...... To designate the facility of the United States Postal Service located at 555 South 3rd Street Oct. 24, 2007 ..... 1015 Lobby in Memphis, Tennessee, as the ‘‘Kenneth T. Whalum, Sr. Post Office Building’’. 110–100 ...... To designate the facility of the United States Postal Service located at 202 South Dumont Ave- Oct. 24, 2007 ..... 1016 nue in Woonsocket, South Dakota, as the ‘‘Eleanor McGovern Post Office Building’’. 110–101 ...... To designate the facility of the United States Postal Service located at 44 North Main Street in Oct. 24, 2007 ..... 1017 Hughesville, Pennsylvania, as the ‘‘Master Sergeant Sean Michael Thomas Post Office’’. 110–102 ...... To designate the facility of the United States Postal Service located at 3 Quaker Ridge Road in Oct. 24, 2007 ..... 1018 New Rochelle, New York, as the ‘‘Robert Merrill Postal Station’’. 110–103 ...... To designate the facility of the United States Postal Service located at 326 South Main Street Oct. 24, 2007 ..... 1019 in Princeton, Illinois, as the ‘‘Owen Lovejoy Princeton Post Office Building’’. 110–104 ...... To designate the facility of the United States Postal Service located at 954 Wheeling Avenue Oct. 24, 2007 ..... 1020 in Cambridge, Ohio, as the ‘‘John Herschel Glenn, Jr. Post Office Building’’. 110–105 ...... To designate the facility of the United States Postal Service located at 805 Main Street in Fer- Oct. 24, 2007 ..... 1021 dinand, Indiana, as the ‘‘Staff Sergeant David L. Nord Post Office’’. 110–106 ...... To amend Public Law 106-348 to extend the authorization for establishing a memorial in the Oct. 25, 2007 ..... 1022 District of Columbia or its environs to honor veterans who became disabled while serving in the Armed Forces of the United States. 110–107 ...... To designate the facility of the United States Postal Service located at Highway 49 South in Oct. 26, 2007 ..... 1023 Piney Woods, Mississippi, as the ‘‘Laurence C. and Grace M. Jones Post Office Building’’. 110–108 ...... Internet Tax Freedom Act Amendments Act of 2007 ...... Oct. 31, 2007 ..... 1024 110–109 ...... Third Higher Education Extension Act of 2007 ...... Oct. 31, 2007 ..... 1028 110–110 ...... Joshua Omvig Veterans Suicide Prevention Act ...... Nov. 5, 2007 ...... 1031 110–111 ...... Veterans’ Compensation Cost-of-Living Adjustment Act of 2007 ...... Nov. 5, 2007 ...... 1035 110–112 ...... To designate the Department of Veterans Affairs Medical Center in Augusta, Georgia, as the Nov. 8, 2007 ...... 1037 ‘‘Charlie Norwood Department of Veterans Affairs Medical Center’’. 110–113 ...... Procedural Fairness for September 11 Victims Act of 2007 ...... Nov. 8, 2007 ...... 1039 110–114 ...... Water Resources Development Act of 2007 ...... Nov. 8, 2007 ...... 1041 110–115 ...... To recognize the Navy UDT-SEAL Museum in Fort Pierce, Florida, as the official national mu- Nov. 13, 2007 .... 1293 seum of Navy SEALS and their predecessors. 110–116 ...... Making appropriations for the Department of Defense for the fiscal year ending September 30, Nov. 13, 2007 .... 1295 2008, and for other purposes. 110–117 ...... To designate the Department of Veterans Affairs Medical Center in Asheville, North Carolina, Nov. 15, 2007 .... 1345 as the ‘‘Charles George Department of Veterans Affairs Medical Center’’. 110–118 ...... To name the Department of Veterans Affairs medical facility in Iron Mountain, Michigan, as Nov. 16, 2007 .... 1346 the ‘‘Oscar G. Johnson Department of Veterans Affairs Medical Facility’’. 110–119 ...... Providing for the reappointment of Roger W. Sant as a citizen regent of the Board of Regents of Nov. 16, 2007 .... 1347 the Smithsonian Institution. 110–120 ...... To provide technical corrections to Public Law 109-116 (2 U.S.C. 2131a note) to extend the Nov. 19, 2007 .... 1348 time period for the Joint Committee on the Library to enter into an agreement to obtain a statue of Rosa Parks, and for other purposes. 110–121 ...... To designate the facility of the United States Postal Service located at 701 Loyola Avenue in Nov. 30, 2007 .... 1349 New Orleans, Louisiana, as the ‘‘Louisiana Armed Services Veterans Post Office’’. 110–122 ...... To designate the facility of the United States Postal Service located at 203 North Main Street Nov. 30, 2007 .... 1350 in Vassar, Michigan, as the ‘‘Corporal Christopher E. Esckelson Post Office Building’’. 110–123 ...... To designate the facility of the United States Postal Service located at 950 West Trenton Ave- Nov. 30, 2007 .... 1351 nue in Morrisville, Pennsylvania, as the ‘‘Nate DeTample Post Office Building’’. 110–124 ...... To designate the facility of the United States Postal Service located at 570 Broadway in Ba- Nov. 30, 2007 .... 1352 yonne, New Jersey, as the ‘‘Dennis P. Collins Post Office Building’’. 110–125 ...... To designate the facility of the United States Postal Service located at 216 East Main Street in Nov. 30, 2007 .... 1353 Atwood, Indiana, as the ‘‘Lance Corporal David K. Fribley Post Office’’. 110–126 ...... To designate the facility of the United States Postal Service located at 235 Mountain Road in Nov. 30, 2007 .... 1354 Suffield, Connecticut, as the ‘‘Corporal Stephen R. Bixler Post Office’’. 110–127 ...... To designate the facility of the United States Postal Service located at 200 North William Nov. 30, 2007 .... 1355 Street in Goldsboro, North Carolina, as the ‘‘Philip A. Baddour, Sr. Post Office’’. 110–128 ...... To designate the facility of the United States Postal Service located at 202 East Michigan Ave- Nov. 30, 2007 .... 1356 nue in Marshall, Michigan, as the ‘‘Michael W. Schragg Post Office Building’’. 110–129 ...... To designate the facility of the United States Postal Service located at 1430 South Highway 29 Nov. 30, 2007 .... 1357 in Cantonment, Florida, as the ‘‘Charles H. Hendrix Post Office Building’’. 110–130 ...... To designate the facility of the United States Postal Service located at 1400 Highway 41 North Nov. 30, 2007 .... 1358 in Inverness, Florida, as the ‘‘Chief Warrant Officer Aaron Weaver Post Office Building’’. 110–131 ...... To designate the facility of the United States Postal Service located at 4320 Blue Parkway in Nov. 30, 2007 .... 1359 Kansas City, Missouri, as the ‘‘Wallace S. Hartsfield Post Office Building’’. 110–132 ...... Multinational Species Conservation Funds Reauthorization Act of 2007 ...... Dec. 6, 2007 ...... 1360 110–133 ...... Asian Elephant Conservation Reauthorization Act of 2007 ...... Dec. 6, 2007 ...... 1362

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121 Public Law Title Approved Stat.

110–134 ...... Improving Head Start for School Readiness Act of 2007 ...... Dec. 12, 2007 ..... 1363 110–135 ...... Fair Treatment for Experienced Pilots Act ...... Dec. 13, 2007 ..... 1450 110–136 ...... To provide for an additional temporary extension of programs under the Small Business Act Dec. 14, 2007 ..... 1453 and the Small Business Investment Act of 1958 through May 23, 2008, and for other pur- poses. 110–137 ...... Making further continuing appropriations for the fiscal year 2008, and for other purposes ...... Dec. 14, 2007 ..... 1454 110–138 ...... United States-Peru Trade Promotion Agreement Implementation Act ...... Dec. 14, 2007 ..... 1455 110–139 ...... To provide that the great hall of the Capitol Visitor Center shall be known as Emancipation Dec. 18, 2007 ..... 1491 Hall. 110–140 ...... Energy Independence and Security Act of 2007 ...... Dec. 19, 2007 ..... 1492 110–141 ...... To exclude from gross income payments from the Hokie Spirit Memorial Fund to the victims Dec. 19, 2007 ..... 1802 of the tragic event at Virginia Polytechnic Institute & State University. 110–142 ...... Mortgage Forgiveness Debt Relief Act of 2007 ...... Dec. 20, 2007 ..... 1803 110–143 ...... Methamphetamine Remediation Research Act of 2007 ...... Dec. 21, 2007 ..... 1809 110–144 ...... Charlie W. Norwood Living Organ Donation Act ...... Dec. 21, 2007 ..... 1813 110–145 ...... To designate the Department of Veterans Affairs outpatient clinic in Green Bay, Wisconsin, as Dec. 21, 2007 ..... 1815 the ‘‘Milo C. Huempfner Department of Veterans Affairs Outpatient Clinic’’. 110–146 ...... To designate the United States courthouse located at 301 North Miami Avenue, Miami, Flor- Dec. 21, 2007 ..... 1816 ida, as the ‘‘C. Clyde Atkins United States Courthouse’’. 110–147 ...... To amend section 5112(p)(1)(A) of title 31, United States Code, to allow an exception from the Dec. 21, 2007 ..... 1817 $1 coin dispensing capability requirement for certain vending machines. 110–148 ...... To amend the Arizona Water Settlements Act to modify the requirements for the statement of Dec. 21, 2007 ..... 1818 findings. 110–149 ...... Making further continuing appropriations for the fiscal year 2008, and for other purposes ...... Dec. 21, 2007 ..... 1819 110–150 ...... To amend title 39, United States Code, to extend the authority of the United States Postal Dec. 21, 2007 ..... 1820 Service to issue a semipostal to raise funds for breast cancer research. 110–151 ...... Genocide Accountability Act of 2007 ...... Dec. 21, 2007 ..... 1821 110–152 ...... To designate the facility of the United States Postal Service located at 175 South Monroe Dec. 21, 2007 ..... 1823 Street in Tiffin, Ohio, as the ‘‘Paul E. Gillmor Post Office Building’’. 110–153 ...... To amend the Higher Education Act of 1965 to make technical corrections ...... Dec. 21, 2007 ..... 1824 110–154 ...... To rename the National Institute of Child Health and Human Development as the Eunice Ken- Dec. 21, 2007 ..... 1826 nedy Shriver National Institute of Child Health and Human Development. 110–155 ...... Providing for the reappointment of Patricia Q. Stonesifer as a citizen regent of the Board of Re- Dec. 21, 2007 ..... 1829 gents of the Smithsonian Institution. 110–156 ...... To designate the Department of Veterans Affairs Outpatient Clinic in Tulsa, Oklahoma, as the Dec. 26, 2007 ..... 1830 ‘‘Ernest Childers Department of Veterans Affairs Outpatient Clinic’’. 110–157 ...... Dr. James Allen Veteran Vision Equity Act of 2007 ...... Dec. 26, 2007 ..... 1831 110–158 ...... To designate the Federal building located at 210 Walnut Street in Des Moines, Iowa, as the Dec. 26, 2007 ..... 1837 ‘‘Neal Smith Federal Building’’. 110–159 ...... To designate the Federal building and United States courthouse located at 100 East 8th Ave- Dec. 26, 2007 ..... 1838 nue in Pine Bluff, Arkansas, as the ‘‘George Howard, Jr. Federal Building and United States Courthouse’’. 110–160 ...... Terrorism Risk Insurance Program Reauthorization Act of 2007 ...... Dec. 26, 2007 ..... 1839 110–161 ...... Consolidated Appropriations Act, 2008 ...... Dec. 26, 2007 ..... 1844 110–162 ...... To designate the facility of the United States Postal Service located at 744 West Oglethorpe Dec. 26, 2007 ..... 2457 Highway in Hinesville, Georgia, as the ‘‘John Sidney ‘Sid’ Flowers Post Office Building’’. 110–163 ...... To designate the facility of the United States Postal Service located at 16731 Santa Ana Ave- Dec. 26, 2007 ..... 2458 nue in Fontana, California, as the ‘‘Beatrice E. Watson Post Office Building’’. 110–164 ...... To amend the Congressional Accountability Act of 1995 to permit individuals who have Dec. 26, 2007 ..... 2459 served as employees of the Office of Compliance to serve as Executive Director, Deputy Ex- ecutive Director, or General Counsel of the Office, and to permit individuals appointed to such positions to serve one additional term. 110–165 ...... To designate the facility of the United States Postal Service located at 797 Sam Bass Road in Dec. 26, 2007 ..... 2460 Round Rock, Texas, as the ‘‘Marine Corps Corporal Steven P. Gill Post Office Building’’. 110–166 ...... Tax Increase Prevention Act of 2007 ...... Dec. 26, 2007 ..... 2461 110–167 ...... To designate the facility of the United States Postal Service located at 567 West Nepessing Dec. 26, 2007 ..... 2462 Street in Lapeer, Michigan, as the ‘‘Turrill Post Office Building’’. 110–168 ...... To authorize a major medical facility project to modernize inpatient wards at the Department Dec. 26, 2007 ..... 2463 of Veterans Affairs Medical Center in Atlanta, Georgia. 110–169 ...... To designate the facility of the United States Postal Service located at 11 Central Street in Dec. 26, 2007 ..... 2464 Hillsborough, New Hampshire, as the ‘‘Officer Jeremy Todd Charron Post Office’’. 110–170 ...... Chimp Haven is Home Act ...... Dec. 26, 2007 ..... 2465 110–171 ...... Granting the consent of Congress to the International Emergency Management Assistance Dec. 26, 2007 ..... 2467 Memorandum of Understanding. 110–172 ...... Tax Technical Corrections Act of 2007 ...... Dec. 29, 2007 ..... 2473 110–173 ...... Medicare, Medicaid, and SCHIP Extension Act of 2007 ...... Dec. 29, 2007 ..... 2492 110–174 ...... Sudan Accountability and Divestment Act of 2007 ...... Dec. 31, 2007 ..... 2516 110–175 ...... Openness Promotes Effectiveness in our National Government Act of 2007 ...... Dec. 31, 2007 ..... 2524 110–176 ...... To amend the Internal Revenue Code of 1986 to clarify the term of the Commissioner of Inter- Jan. 4, 2008 ...... 2532 nal Revenue. 110–177 ...... Court Security Improvement Act of 2007 ...... Jan. 7, 2008 ...... 2534 110–178 ...... U.S. Capitol Police and Library of Congress Police Merger Implementation Act of 2007 ...... Jan. 7, 2008 ...... 2546 110–179 ...... Emergency and Disaster Assistance Fraud Penalty Enhancement Act of 2007 ...... Jan. 7, 2008 ...... 2556 110–180 ...... NICS Improvement Amendments Act of 2007 ...... Jan. 8, 2008 ...... 2559

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Part III

Department of Commerce National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 226 Endangered and Threatened Species: Final Threatened Listing Determination, Final Protective Regulations, and Final Designation of Critical Habitat for the Oregon Coast Evolutionarily Significant Unit of Coho Salmon; Final Rule

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DEPARTMENT OF COMMERCE Coast coho salmon (Weitkamp et al., NMFS, the U.S. Fish and Wildlife 1995) that resulted in proposed listing Service (FWS), and the U.S. Geological National Oceanic and Atmospheric determinations for three coho ESUs, Survey (USGS)) to review the extinction Administration including a proposal to list the Oregon risks of naturally spawning populations Coast coho ESU as a threatened species in the 27 ESUs under review, including 50 CFR Parts 223 and 226 (60 FR 38011; July 25, 1995). On the Oregon Coast coho ESU (Good et al., [Docket No. 071227892–7894–01] October 31, 1996, we announced a 6- 2005; NMFS, 2003a). In making its month extension of the final listing recommendation, the BRT used a RIN 0648–AW39 determination for the ESU, pursuant to process where each member of the BRT section 4(b)(6)(B)(I) of the ESA, noting was given 10 votes to divide among Endangered and Threatened Species: substantial disagreement regarding the three conclusions. Members were Final Threatened Listing sufficiency and accuracy of the available allowed to assign votes to more than one Determination, Final Protective data relevant to the assessment of conclusion, allowing them to express Regulations, and Final Designation of extinction risk and the evaluation of their relative degree of confidence in Critical Habitat for the Oregon Coast protective efforts (61 FR 56211). On May particular conclusions. The three Evolutionarily Significant Unit of Coho 6, 1997, we withdrew the proposal to options were ‘‘In Danger of Extinction,’’ Salmon list the Oregon Coast coho ESU as ‘‘Likely to Become Endangered,’’ and AGENCY: National Marine Fisheries threatened, based in part on ‘‘Not Warranted.’’ Fifty-six percent of Service (NMFS), National Oceanic and conservation measures contained in the the votes supported the conclusion that Atmospheric Administration (NOAA), Oregon Coastal Salmon Restoration naturally spawning Oregon coast coho Commerce. Initiative (later renamed the Oregon were likely to become endangered in the Plan for Salmon and Watersheds; ACTION: Final rule. foreseeable future, and 44 percent hereafter referred to as the Oregon Plan) supported the conclusion that naturally SUMMARY: We are issuing a final and an April 23, 1997, Memorandum of spawning Oregon coast coho was ‘‘Not determination to list the Oregon Coast Agreement (MOA) between NMFS and Warranted’’ (that is, not likely to coho salmon (Oncorhynchus kisutch) the State of Oregon which further become in danger of extinction in the evolutionarily significant unit (ESU) as defined Oregon’s commitment to foreseeable future). The BRT noted a threatened species under the salmon conservation (62 FR 24588). We considerable uncertainty regarding the Endangered Species Act (ESA). We are concluded that implementation of future viability of the ESU given the also issuing final protective regulations harvest and hatchery reforms, and uncertainty in predicting future ocean and a final critical habitat designation habitat protection and restoration efforts conditions for coho survival, as well as for the Oregon Coast coho ESU. under the Oregon Plan and the MOA uncertainty in whether current DATES: The listing determination, substantially reduced the risk of freshwater habitats are of sufficient protective regulations, and designated extinction faced by the Oregon Coast quality and quantity to support the critical habitat are effective on May 12, coho ESU. On June 1, 1998, the U.S. recent high abundance levels and 2008. With respect to the protective District Court for the District of Oregon sustain populations during future regulations, the take prohibitions for the issued an opinion finding that our May downturns in ocean conditions. Oregon Coast coho ESU do not apply to 6, 1997, determination to not list Oregon Although the BRT couched its research and enhancement activities Coast coho was arbitrary and capricious conclusion in terms of the statutory specified in an application for a permit (Oregon Natural Resources Council v. definition of a threatened species (that or approval under the protective Daley, 6 F. Supp. 2d 1139 (D. Or. 1998)). is, not in danger of extinction, but likely regulations, provided that the The Court vacated our determination to to become endangered in the foreseeable application has been received by the withdraw the proposed rule to list the future), the BRT’s conclusion did not Assistant Administrator for Fisheries Oregon Coast coho ESU and remanded constitute a recommendation to list the (AA), NOAA, no later than June 10, the determination to NMFS for further species. Our listing determination also 2008. This ‘‘grace period’’ for pending consideration. On August 10, 1998, we considered the risks and benefits from issued a final rule listing the Oregon research and enhancement applications artificial propagation programs included Coast coho ESU as threatened (63 FR will remain in effect until the issuance in the ESU, efforts being made to protect 42587), basing the determination solely or denial of authorization, or March 31, the species, and the five factors listed on the information and data contained 2009, whichever occurs earliest. under section 4(a)(1) of the ESA. in the 1995 status review (Weitkamp et ADDRESSES: NMFS, Protected Resources al., 1995) and the 1997 proposed rule. On June 14, 2004, based primarily on Division, 1201 NE Lloyd Boulevard, In 2001 the U.S. District Court in the BRT voting results, we proposed to Suite 1100, Portland, Oregon 97232. Eugene, Oregon, set aside the 1998 list the Oregon Coast coho ESU as a FOR FURTHER INFORMATION CONTACT: threatened listing of the Oregon Coast threatened species (69 FR 33102). Scott Rumsey, NMFS, Northwest coho ESU (Alsea Valley Alliance v. However, the proposed listing Region, Protected Resources Division, at Evans, 161 F. Supp. 2d 1154, (D. Or. recognized that further information (503) 872–2791, or Marta Nammack, 2001)) (Alsea). In response to the Alsea would likely become available and that NMFS, Office of Protected Resources, at ruling and several listing and delisting this information could affect the (301) 713–1401. Reference materials petitions, we announced that we would outcome of the final determination. In regarding this determination are conduct an updated status review of 27 the proposed rule, we noted that Oregon available upon request or on the Internet West Coast salmonid ESUs, including was initiating a comprehensive at http://www.nwr.noaa.gov. the Oregon Coast coho ESU (67 FR 6215, assessment of the viability of the Oregon SUPPLEMENTARY INFORMATION: February 11, 2002; 67 FR 48601, July 25, Coast coho ESU and of the adequacy of 2002). actions under the Oregon Plan for Previous Federal ESA Actions Related In 2003 we convened the Pacific conserving Oregon Coast coho. As part to Oregon Coast Coho Salmonid Biological Review Team of that proposed rule we proposed In 1995, we completed a (BRT) (an expert panel of scientists from amendments to existing protective comprehensive status review of West several Federal agencies including regulations issued under ESA section

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4(d) (‘‘4(d) regulations’’) for all February 9, 2005, we published a notice 4(b)(6)(B)(i) of the ESA). We announced threatened West Coast salmon and of availability of Oregon’s Draft Viability a 30-day public comment period to steelhead (50 CFR 223.203). These Assessment for public review and solicit information regarding the amendments were needed to: (1) comment in the Federal Register (70 FR validity of Oregon’s Final Viability Provide flexibility in fisheries and 6840) and noted that information Assessment, particularly in light of the hatchery management; and (2) simplify presented in the draft and final concerns raised with respect to Oregon’s and clarify the existing regulations so assessments would be considered in Draft Viability Assessment. In that they may be more efficiently and making the final listing determination September 2005 we issued final critical effectively accessed and interpreted by for the Oregon Coast coho ESU. habitat designations for 12 Pacific all affected parties. We forwarded the public comments Northwest ESUs (70 FR 52685; On December 14, 2004, we proposed we received on Oregon’s Draft Viability September 2, 2005), but we did not designations of critical habitat for 13 Assessment, as well as our technical issue a final critical habitat designation ESUs of Pacific salmon and steelhead in reviews, for Oregon’s consideration in for Oregon Coast coho because it was the Pacific Northwest, including the developing its final assessment. The only proposed for listing at that time. Oregon Coast coho ESU (69 FR 74572). public comments and our review On January 19, 2006, we issued a final We proposed critical habitat in 72 of 80 highlighted areas of uncertainty or determination that listing the Oregon occupied watersheds, contained in 13 disagreement regarding the sufficiency Coast coho ESU under the ESA was not subbasins, totaling approximately 6,665 and accuracy of Oregon’s Draft Viability warranted (71 FR 3033). As part of this stream miles along the Oregon Coast, Assessment, including: the assumption determination, we withdrew the south of the Columbia River and north that Oregon Coast coho populations are proposed ESA section 4(d) regulations of Cape Blanco (Oregon). The estimated inherently resilient at low abundance, and critical habitat designation for the economic impact of the areas proposed and that this compensatory response ESU. In reaching our determination not for critical habitat was approximately will prevent extinction during periods to list Oregon Coast coho, we found that $15.7 million. Eight occupied of low marine survival; the apparent de- the BRT’s slight majority opinion that watersheds were proposed for exclusion emphasis of abundance as a useful the ESU is ‘‘likely to become because the high benefits of exclusion indicator of extinction risk; assumptions endangered’’ and the conclusion of the (due to economic impacts) outweighed regarding the duration and severity of Oregon Final Viability Assessment that the low benefits of inclusion (due to the future periods of unfavorable marine the ESU is viable represented competing low inherent conservation value for the and freshwater conditions; the ability of reasonable inferences from the available listed species). These excluded monitoring and adaptive management scientific information and considerable watersheds included approximately 134 efforts to detect population declines or associated uncertainty. The difference of stream miles and represented a 15 habitat degradation, and to identify and opinion centered on whether the ESU percent reduction (approximately $2.75 implement necessary protective was at risk because of the ‘‘threatened million) in the economic impact of the measures; and the ability of Oregon Plan destruction, modification, or proposed designation. To assess measures to halt or reverse habitat curtailment of its habitat or range.’’ We economic impacts we measured the co- degradation once detected. conducted an analysis of current habitat extensive impacts because, based on the On May 13, 2005, Oregon issued its status and likely future habitat trends existing record, we could not final Oregon Coastal Coho Assessment (NMFS, 2005a) and found that: (1) The distinguish between the costs associated (Oregon’s Final Viability Assessment). with the species’ listing from the costs Oregon’s Final Viability Assessment sufficiency of current habitat conditions of separately designating critical habitat. included several changes intended to was unknown; and (2) likely future In January 2005 the State of Oregon address concerns raised regarding the habitat trends were mixed (i.e., some released a draft Oregon Coastal Coho sufficiency and accuracy of the draft habitat elements were likely to improve, Assessment (Oregon’s Draft Viability assessment. Oregon’s Final Viability some were likely to decline, others were Assessment), which (1) evaluated the Assessment concluded that: (1) The likely to remain in their current current viability of the Oregon Coast Oregon Coast coho ESU is viable under condition). We concluded that there was coho ESU, and (2) evaluated the current conditions, and should be insufficient evidence to support the certainty of implementation and sustainable through a future period of conclusion that the ESU was more likely effectiveness of the Oregon Plan adverse environmental conditions than not to become an endangered measures in addressing the factors for (including a prolonged period of poor species in the foreseeable future decline of the Oregon Coast coho ESU. ocean productivity); (2) given the throughout all or a significant portion of The latter evaluation was intended to assessed viability of the ESU, the quality its range. satisfy the joint NMFS—FWS Policy on and quantity of habitat is necessarily Our decision not to list the Oregon Evaluating Conservation Efforts sufficient to support a viable ESU; and Coast coho ESU was challenged in Trout (‘‘PECE’’; 68 FR 15100; March 28, 2003). (3) the integration of laws, adaptive Unlimited. On October 9, 2007, the U.S. Oregon’s Draft Viability Assessment management programs, and monitoring District Court for the District of Oregon concluded that the Oregon Coast coho efforts under the Oregon Plan will invalidated our January 2006 decision ESU is currently viable and that maintain and improve environmental not to list Oregon Coast coho (Trout measures under the Oregon Plan have conditions and the viability of the ESU Unlimited v. Lohn, Civ. No. 06–01493 stopped, if not reversed, the into the foreseeable future. ST (D. Oreg., October 9, 2007). The deterioration of Oregon Coast coho On June 28, 2005 (70 FR 37217), we Court found that Oregon’s Viability habitats. The Draft Viability Assessment announced a 6-month extension of the Assessment does not represent the best also concluded that it is highly likely final listing determination for the available science, and that we that existing monitoring efforts would Oregon Coast coho ESU, finding that improperly considered it in reaching detect any significant future ‘‘there is substantial disagreement our final listing decision. The Court deterioration in the ESU’s viability, or regarding the sufficiency or accuracy of ordered us to issue a new final listing degradation of environmental condition, the available data relevant to the rule consistent with the ESA. This allowing a timely and appropriate determination * * * for the purposes of listing decision has been made in response to conserve the ESU. On soliciting additional data’’ (section compliance with the Court’s order.

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ESA Statutory Provisions warrants listing under the ESA. ESA prohibits with respect to Evaluation of the certainty that an effort endangered species. Listing Determinations will be implemented includes whether: Critical Habitat The ESA defines an endangered the necessary resources (e.g., funding species as one that is in danger of and staffing) are available; the requisite Section 3 of the ESA defines critical extinction throughout all or a significant agreements have been formalized such habitat as (1) specific areas within the portion of its range, and a threatened that the necessary authority and geographical area occupied by the species as one that is likely to become regulatory mechanisms are in place; species at the time of listing, on which endangered in the foreseeable future there is a schedule for completion and are found those physical or biological (sections 3(6) and 3(20), respectively). evaluation of the stated objectives; and features that are essential to the The statute requires us to determine (for voluntary efforts) the necessary conservation of the listed species and whether any species is endangered or incentives are in place to ensure that may require special management threatened because of any of five factors: adequate participation. The evaluation considerations or protection, and (2) the present or threatened destruction of of the certainty of an effort’s specific areas outside the geographical its habitat, overexploitation, disease or effectiveness is made on the basis of area occupied by the species at the time predation, the inadequacy of existing whether the effort or plan: Establishes of listing that are essential for the regulatory mechanisms, or any other specific conservation objectives; conservation of a listed species. In natural or manmade factors (section identifies the necessary steps to reduce designating critical habitat our 4(a)(1)(A)–(E)). We are to make this threats or factors for decline; includes regulations direct us to focus on determination based solely on the best quantifiable performance measures for ‘‘primary constituent elements,’’ or available scientific information after the monitoring of compliance and PCEs, in identifying these physical or conducting a review of the status of the effectiveness; incorporates the biological features. Section 4 of the ESA species and taking into account any principles of adaptive management; and requires us to consider the economic efforts being made by states or foreign is likely to improve the species’ viability impacts, impacts on national security, governments to protect the species. The at the time of the listing determination. and other relevant impacts of specifying focus of our evaluation of these five PECE also notes several important any particular area as critical habitat. factors is to evaluate whether and to caveats. Satisfaction of the above We may exclude any area from critical what extent a given factor represents a mentioned criteria for implementation habitat if we determine that the benefits threat to the future survival of the and effectiveness establishes a given of such exclusion outweigh the benefits species. The focus of our consideration protective effort as a candidate for of specifying such area as part of the of protective efforts is to evaluate consideration, but does not mean that critical habitat, unless the failure to whether these efforts substantially have an effort will ultimately change the risk designate such an area will result in the and will continue to address the assessment. The policy stresses that, just extinction of the species. identified threats and so ameliorate a as listing determinations must be based At the time of a proposed listing species’ risk of extinction. In making on the viability of the species at the time determination, ESA section 4(a)(3) and our listing determination, we must of review, so they must be based on the our regulations require us to specify consider all factors that may affect the state of protective efforts at the time of critical habitat to the maximum extent future viability of the species, including the listing determination. The PECE ‘‘prudent and determinable.’’ Critical whether regulatory and conservation does not provide explicit guidance on habitat designation is not prudent if: (1) programs are inadequate and allow how protective efforts affecting only a The species is threatened by taking or threats to the species to persist or portion of a species’ range may affect a other human activity and the worsen, or whether these programs are listing determination, other than to say identification of critical habitat can be likely to mitigate threats to the species that such efforts will be evaluated in the expected to increase such threat(s); or and reduce its extinction risk. The steps context of other efforts being made and (2) critical habitat designation would we follow in implementing this the species’ overall viability. not be beneficial to the species. Critical statutory scheme are to: review the habitat is not determinable if: (1) status of the species, analyze the factors Protective Regulations Sufficient information is lacking to listed in section 4(a)(1) of the ESA to ESA section 9(a) take and other perform the required analyses of the identify threats facing the species, prohibitions (16 U.S.C. 1538(a)(1)(B)) impact of the designation; or (2) the assess whether certain protective efforts apply to all species listed as biological needs of the species are not mitigate these threats, and make our endangered. Hatchery stocks sufficiently well known to identify an best prediction about the species’ future determined to be part of endangered area as critical habitat. In our proposed persistence. ESUs are afforded all of the full section rule to designate specific areas as As indicated above, the PECE 9 protections. In the case of threatened critical habitat (69 FR 74572; December provides direction for considering species, ESA section 4(d) leaves it to the 14, 2004), we determined that protective efforts identified in Secretary of Commerce’s (Secretary) designating critical habitat for this conservation agreements, conservation discretion to determine whether and to species is prudent and determinable. plans, management plans, or similar what extent regulatory requirements The record continues to support this documents (developed by Federal may be appropriate, by directing the determination. agencies, state and local governments, Secretary to issue regulations The ESA requires that a final tribal governments, businesses, determined to be necessary and regulation designating critical habitat be organizations, and individuals) that advisable for the conservation of the published concurrently with the final have not yet been implemented, or have species. We have flexibility under determination listing a species as been implemented but have not yet section 4(d) to tailor protective threatened or endangered, unless: (1) It demonstrated effectiveness. The policy regulations based on the contributions is essential to the conservation of such articulates several criteria for evaluating of available conservation measures. The species that the species be listed the certainty of implementation and 4(d) regulations may prohibit, with promptly (e.g., in instances when a effectiveness of protective efforts to aid respect to threatened species, some or species is listed by emergency rule); or in determining whether a species all of the acts which section 9(a) of the (2) critical habitat of such species is not

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then determinable. Section 7(a)(2) of the the 1994 Independent Review Policy we farming groups, irrigation groups, and ESA requires that each Federal agency solicited technical review of the June individuals with expertise in Pacific shall, in consultation with, and with the 2004 proposed 4(d) regulations and salmonids. The majority of commenters assistance of, NMFS, ensure that any listing determinations, including the focused on the consideration of action authorized, funded or carried out proposed determination for the Oregon hatchery-origin fish in ESA listing by such agency is not likely to Coast coho ESU, from over 50 determinations, with only a few jeopardize the continued existence of independent experts selected from the comments specifically addressing the any listed species or result in the academic and scientific community, Oregon Coast coho ESU. We also destruction or adverse modification of Native American tribal groups, Federal received comments from 4 of the 50 its designated critical habitat. and state agencies, and the private independent experts from whom we had requested technical review of the Summary of Public and Independent sector. The individuals from whom we scientific information underlying the Review solicited review of the proposals and the underlying science were selected June 2004 proposed listing Our regulations require that we allow because of their demonstrated expertise determinations. Their comments did not a period of at least 60 days for the in a variety of disciplines including: specifically address the proposed public to review and comment on a Artificial propagation; salmonid determination for the Oregon Coast coho proposed rule to list, delist, or reclassify biology, taxonomy, and ecology; genetic ESU. The reader is referred to the final a species, or to designate or revise and molecular techniques and analyses; hatchery listing policy (70 FR 37204; critical habitat. We may extend or population demography; quantitative June 28, 2005) and the final listing reopen the comment period upon methods of assessing extinction risk; determinations and ESA section 4(d) finding that there is good cause to do so fisheries management; local and regulations for 16 salmon ESUs (70 FR by publishing notice in the Federal regional habitat conditions and 37160; June 28, 2005) for a summary Register. We are required to hold at processes; and conducting scientific and discussion of issues raised by the least one public hearing if any person so analyses in support of ESA listing comments that were not specific to the requests within 45 days of the determinations. The individuals Oregon Coast coho ESU. The comments publication of a proposed rule. Notice of solicited represent a broad spectrum of addressing the proposed listing the location and time of any hearings is perspectives and expertise. The determination for the Oregon Coast coho published in the Federal Register. individuals solicited include those who ESU are summarized below. We did not A 1994 joint NMFS–FWS policy have been critical of past agency actions receive any comments that addressed (Independent Review Policy) requires us in implementing the ESA for West Coast the proposed 4(d) regulations in the to solicit independent expert review salmon and steelhead, as well as those specific context of the Oregon Coast from at least three qualified specialists, coho ESU. concurrent with the public comment who have been supportive of these period following a proposed rule (59 FR actions. These individuals were not Critical Habitat involved in producing the scientific 34270; July 1, 1994). In December 2004 We solicited public comment on the information for our determinations and the Office of Management and Budget proposed critical habitat designation for were not employed by the agency. We (OMB) issued a Final Information Oregon Coast coho for a total of 105 received comments from four of these Quality Bulletin for Peer Review (Peer days (69 FR 74578, December 14, 2004; Review Bulletin), establishing minimum experts. In addition to these solicited 70 FR 6394; February 7, 2005). We also peer review standards, a transparent reviews, several independent scientific contacted the appropriate Federal, state, process for public disclosure, and panels and academic societies provided and local agencies, scientific opportunities for public input. The technical review of the proposals and organizations, and other interested OMB Peer Review Bulletin, the supporting documentation. With parties and invited them to comment on implemented under the Information respect to the Peer Review Bulletin’s the proposed rule. To facilitate public Quality Act (Pub. L. 106–554), is requirements for ‘‘adequate [prior] peer participation, we made the proposed intended to ensure the quality of agency review,’’ we believe the independent rule available via the Internet as soon as information, analyses, and regulatory expert review under the 1994 it was signed by the AA of NMFS activities and provide for a more Independent Review Policy, and the (approximately 2 weeks prior to actual transparent review process. comments received from several publication). In addition, we held four academic societies and expert advisory public hearings in the Pacific Northwest Listing Determination and Protective panels, collectively satisfy the Peer between January 11, 2005, and January Regulations Review Bulletin’s requirements (NMFS, 25, 2005. We received 5,230 written We solicited public comment on the 2005b). comments (5,111 of these were ‘‘form proposed listing determination and ESA In response to our requests for e-mails’’ with nearly identical verbiage) section 4(d) regulations for the Oregon information and comments on the June during the comment period on the Coast coho ESU for a total of 208 days 2004 proposed listing determinations, proposed rule. Eight comments (69 FR 33102, June 14, 2004; 69 FR we received over 28,250 comments by addressed specifically, or in part, the 53031, August 31, 2004; 69 FR 61348, fax, standard mail, and e-mail. The proposed critical habitat designation for October 18, 2004; 70 FR 6840, February majority of the comments received were the Oregon Coast coho ESU. 9, 2005; 70 FR 37217, June 28, 2005). In from interested individuals who In compliance with the Peer Review addition, we held eight public hearings submitted form letters or form e-mails Bulletin, prior to publishing the in the Pacific Northwest concerning the that addressed general issues not proposed rule we submitted the initial June 2004 West Coast salmon and specific to the Oregon Coast coho ESU. biological assessments of our Critical steelhead proposed 4(d) regulations and Comments were also submitted by state Habitat Analytical Review Teams proposed listing determinations, and tribal natural resource agencies, (CHARTs) to state and tribal comanagers including the proposed determination fishing groups, environmental and asked them to review those for the Oregon Coast coho ESU (69 FR organizations, home builder findings. These comanager reviews 53031, August 31, 2004; 69 FR 61348, associations, academic and professional resulted in several changes to the October 18, 2004). In compliance with societies, expert advisory panels, CHARTs’ preliminary assessments (for

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example, revised fish distribution as (ODFW stock #99). ODFW noted that Coos Basin (ODFW stock #37), and the well as conservation value ratings) and both stocks, although founded using Coquille River (ODFW stock #44) helped ensure that the CHARTs’ revised local natural-origin fish, are presently hatchery coho programs were findings incorporated the best available managed as isolated broodstocks. considered part of the Oregon Coast scientific data. Consistent with the 1994 Although the level of divergence coho ESU. The latter three of these Independent Review Policy, we later between these hatchery stocks and the programs have been discontinued since solicited technical review of the entire local wild populations is not known, our 2006 final determination (NMFS, critical habitat proposal (including the ODFW noted that our hatchery reviews 2007a). The last year of returns for these underlying biological and economic (NMFS, 2003b, 2004a, 2004b) programs is 2007. Given that the North reports) from 45 independent experts acknowledged that the level of Umpqua River, Coos Basin, and selected from the academic and divergence may be substantial. ODFW Coquille River hatchery programs have scientific community, Native American recommended that both the North Fork been terminated, and this winter (2007) tribal groups, Federal and state agencies, Nehalem River and Fishhawk Lake is the last year of returns, these stocks and the private sector. We also solicited hatchery stocks be excluded from the will not be considered part of the opinions from three individuals with ESU. Oregon Coast coho ESU. economics expertise to review the draft ODFW also noted that the recently Comment 2: A comment submitted by economics analysis supporting the founded Calapooya Creek (Umpqua the Pacific Rivers Council (PRC) proposed rule. All three of the River basin, Oregon) hatchery coho included a July 2003 report economics reviewers and three of the stock was not included in our hatchery investigating the potential benefits of a biological reviewers submitted written reviews. The Calapooya Creek program modeled conservation hatchery program opinions on our proposal. We have was a small, short-term (in operation in supplementing Oregon Coast coho determined that the independent expert from 2001–2003), research hatchery (Oosterhout and Huntington, 2003). PRC review and comments received program conducted to evaluate the use asserted that the report supports their regarding the science involved in this of hatchery-reared fish in the position that hatchery fish should be rulemaking constitute adequate prior supplementation of a wild coho considered as only a threat to wild review under section II.2 of the OMB population. The program is no longer salmonid populations, and that any Peer Review Bulletin (NMFS, 2005c) releasing fish, and had adults returning potential short-term benefits of artificial and satisfy the 1994 Independent through 2006. ODFW suggested that, propagation are outweighed by the long- Review Policy. had we included this stock in our initial term damaging genetic and ecological We reviewed all comments received evaluations, the progeny expected to effects on wild populations. The from the peer reviewers and the public return through 2006 would have been Oosterhout and Huntington (2003) for substantive issues and new considered as part of the Oregon Coast report modeled an ‘‘idealized information regarding critical habitat for coho ESU. conservation hatchery’’ program and all 13 ESUs addressed in the proposed Response: We agree with ODFW’s evaluated the success of rule. The reader is referred to the final comments that the North Fork Nehalem supplementation efforts under different critical habitat designations for 12 River and Fishhawk Lake stocks scenarios of habitat quality and marine Pacific Northwest ESUs (70 FR 52685; propagated by the Nehalem hatchery survival. The authors conclude from September 2, 2005) for a summary and coho program are substantially their modeling study that discussion of general issues, or issues reproductively isolated from the local supplementation, even under optimized specific to other ESUs. The comments natural populations, and diverged model assumptions, poses long-term addressing the proposed critical habitat substantially from the evolutionary ecological and genetic risks, and any designation for the Oregon Coast coho legacy of the ESU. Moreover, since our short-term gains in salmon abundance ESU are summarized below. 2006 final determination these two are temporary. programs have been discontinued, with Response: The use of artificial Comments Specific to Oregon Coast the last adults returning in 2007 (NMFS, propagation represents a broad Coho 2007a). We conclude that the North spectrum of hatchery practices and Below we address the comments Fork Nehalem River and Fishhawk Lake facilities, as well as a variety of received that directly pertain to: (1) The hatchery coho stocks are not part of the ecological settings into which hatchery- listing determination for the Oregon Oregon Coast coho ESU. origin fish are released. For this reason Coast coho ESU, and (2) the designation We did not include the Calapooya it is essential to assess hatchery of critical habitat for the Oregon Coast Creek coho hatchery stock in our programs on a case-by-case basis. Our coho ESU. (Copies of the full text of hatchery reviews as the program is no assessment of the benefits, risks, and comments received are available upon longer collecting fish for broodstock or uncertainties of artificial propagation request, see ADDRESSES and FOR FURTHER releasing smolts. We agree with ODFW concluded that the specific hatchery INFORMATION CONTACT, above.) that returns from Calapooya Creek programs considered to be part of the hatchery stock, having been derived Oregon Coast coho ESU collectively do Comments Regarding the Listing from local natural-origin fish, likely not substantially reduce the extinction Determination were no more than moderately diverged risk of the ESU in-total (NMFS, 2004b). Comment 1: The Oregon Department from the local natural populations. We noted that these hatchery programs of Fish and Wildlife (ODFW) expressed However, given that the program has likely contribute to an increased concern regarding the proposed been terminated, and 2006 was the last abundance of total natural spawners in inclusion of the North Fork Nehalem year of returns, the Calapooya Creek the short term, although their River coho hatchery program in the hatchery stock will not be considered contribution to the productivity of the Oregon Coast coho ESU. ODFW part of the Oregon Coast coho ESU. supplemented populations is unknown. explained that the hatchery program At the time of the 2004 proposed rule Our assessment is consistent with the propagates two different stocks: The and our January 2006 final findings of Oosterhout and Huntington North Fork Nehalem River hatchery determination not to list the ESU, Cow (2003). The findings of scientific coho stock (ODFW stock #32) and the Creek (ODFW stock #37), the North studies, such as the subject study on Fishhawk Lake hatchery coho stock Umpqua River (ODFW stock #18), the simulated conservation hatchery

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programs and their impacts on natural in hatchery management practices have of restoring stream complexity and coho populations, inform our limited the potential for adverse riparian habitats and improving water consideration of the benefits and risks to ecological interactions between quality, though it is unclear how much be expected from artificial propagation. hatchery-origin and natural fish, and restoration is likely to occur in the However, it would be inappropriate to have markedly reduced risks to the future, given funding uncertainties. rely on theoretical conclusions about genetic diversity and reproductive Forest practices on state and private the effectiveness of hatchery programs fitness for the majority of naturally land include some improvements over while ignoring program-specific spawned populations in the ESU. It is historically harmful practices, such as information regarding broodstock origin, also unlikely those reforms will be the establishment of riparian hatchery practices, and performance of weakened in the future. management areas under revisions to hatchery- and natural-origin fish. Comment 5: One commenter was Oregon forest practice rules in the Comment 3: Douglas County Board of critical of the Oregon Forest Practices 1990s. However, there are also offsetting Commissioners (Oregon) submitted a Act, and argued that it is inadequate to practices that are expected to degrade report (Cramer et al., 2004) that prevent the future degradation of habitat conditions and complexity, such concludes that NMFS’ earlier viability riparian habitats, particularly on private as shorter harvest rotations, road analyses overstate the risks to Oregon non-industrial forestlands. The construction, and logging on unstable Coast coho populations, and that the commenter noted that the Forest slopes and along debris flow paths 2003 BRT’s findings warrant Practices Act applies only to the (NMFS, 2005a). reconsideration. The Cramer et al. commercial harvest of trees, and that For agricultural lands, riparian (2004) report asserts that previous non-commercial land owners may cut management is governed by agricultural viability assessments failed to riparian trees without restriction if they water quality management plans under adequately consider connectivity among do not sell the wood. The commenter Oregon Senate Bill 1010, as well as by spawner aggregations, underestimated noted that this unregulated practice is subsequently developed riparian rules juvenile over-winter survival in smaller particularly evident in areas with which synthesize elements of individual stream reaches, and underestimated increased rural residential development Senate Bill 1010 plans for a given basin. coho population stability. The report along streambanks. These agricultural plans and rules do asserts that sharp reductions in ocean Other commenters doubted whether not specify the vegetation composition harvest rates since 1994, declining regulations, restoration programs, and or size of the riparian areas to be influence of hatchery-origin fish, and other protective efforts would improve established. The lack of specificity of improved monitoring and evaluation habitat conditions in the foreseeable these agricultural plans makes the under the Oregon Plan confer a very low future. One commenter noted that there enforcement and effectiveness of these risk of extinction even if future marine is an insufficient data record to evaluate plans uncertain (NMFS, 2005a). Any survival rates are low and remain low. the success of protective efforts aimed at modest improvements in riparian Response: The Cramer et al. (2004) restoring riparian habitats, particularly vegetation on agricultural lands under report does not present any substantial in increasing the recruitment of large current rules that might be expected new information, other than including woody debris. Several other may be offset by habitat declines an additional year of abundance data commenters doubted whether forest resulting from urban and rural that was not available to the BRT. The management under the Oregon Plan has development (NMFS, 2005a). On report emphasizes selective aspects of resulted, or will result, in an increased balance, habitat conditions on the available data including: reduction amount of large-diameter trees agricultural lands are not likely to show of threats by changes in fishery and (important for the recruitment of large significant improvement or decline. harvest management; and improved woody debris in coho rearing areas). Future urbanization and development biological status evidenced by The commenters argued that the shorter within the range of the ESU is projected increasing spawning escapements and rotations being implemented on private at approximately 20 percent population successful juvenile rearing throughout industrial forest lands reduce the size of growth, representing slightly more than the ESU. These observations and trees delivered to streams in landslides, 30,000 people over the next 40 years analyses were fully considered in the and thus may result in diminished (NMFS, 2005a). Most of this BRT’s review (Good et al., 2005; NMFS, stream complexity in important coho development is expected to be 2003a). The Cramer et al. (2004) report rearing habitats. concentrated in lowland areas with high does not, by itself, add to our Response: Our review suggests that intrinsic potential for rearing coho. consideration of the BRT’s findings. there are likely to be improvements in Current urban or rural growth Comment 4: Several commenters felt some aspects of habitat condition, boundaries encompass approximately that effective regulatory controls and declines in others, and a continuation of nine percent of high intrinsic potential monitoring programs are in place to current conditions in still others riparian habitat areas, so future ensure that harvest and hatchery (NMFS, 2005a). For example, the urbanization and development activities practices no longer threaten the ESU. Northwest Forest Plan instituted could have significant implications for Response: Many noteworthy and riparian habitat buffers and other some coho populations. The degree of important regulatory changes have been measures on Federal lands that potential impacts on coho habitat (both made that adequately address improved many of the historical forestry positive and negative) is highly historically harmful practices. Changes practices that led to the loss and uncertain and depends largely on the in ocean and freshwater fisheries degradation of riparian habitats. spatial distribution of future management have resulted in sharp Development and implementation of urbanization and development reductions in fishing mortality in Total Maximum Daily Loads under the activities, their proximity to riparian Oregon Coast coho populations, and Federal Clean Water Act are likely to areas, and the kinds of development likely have contributed to recent result in improved water quality. activities undertaken and the land population increases. It is unlikely that Restoration efforts have treated management practices used. those harvest controls will weaken in approximately seven percent of the Comment 6: Several commenters the future, in light of Federal stream miles within the range of the expressed concern that inadequate management of ocean fisheries. Reforms ESU over the last 7 years with the intent funding has limited the ability of many

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Oregon agencies to monitor non- Lake/Moolack Frontal watershed. The Another commenter felt that protections permitted habitat-affecting activities, commenters cited recent genetic data under the Oregon Plan have effectively enforce regulations, and establishing that coho from Rock Creek/ demonstrated conservation benefits that ensure proper reporting of permitted Devils Lake are genetically distinct from warrant the exclusion of affected areas activities. The commenters felt that other populations in the ESU. The from designation as critical habitat. these inadequacies should be commenters believed that the coho in Another commenter felt that existing considered evidence of uncertainty that Devils Lake possess a unique and regulatory and other mechanisms under some as yet, unproven elements under distinct genetic heritage warranting a these conservation measures are the Oregon Plan will be implemented. ‘‘high’’ conservation value rating. inadequate to protect the ESU and its Response: The commenters are correct Response: The CHART considered habitats. The commenter argued that it that the availability of necessary these comments along with recent is essential to designate critical habitat funding and staffing resources is an population identification work (Lawson in these areas where existing regulatory important consideration in evaluating et al., 2007) and genetic analyses by mechanisms do not prevent or alter how likely it is that a given protective Johnson and Banks (2007). The team certain activities that would adversely effort will be implemented. Our review maintained that the Devils Lake/ modify habitat. has noted that funding declines have led Moolack Frontal watershed (which Response: The comments imply that if to the loss of staff at the Oregon contains Devils Lake) was still of an area is covered by a management Department of Environmental Quality, medium conservation value, noting that plan, it either does not meet the ESA Department of Forestry, and ODFW Devil’s Lake coho are one of ten small section 3(5)(a) definition of critical (NMFS, 2005a). The reduced funding and dependent populations in this habitat or it must be excluded from has slowed the completion of Total watershed and appear to be most closely critical habitat under ESA section Maximum Daily Load water quality related to coho in the nearby Siletz 4(b)(2). Neither assertion is correct. standards, and reduced the ability to River. The team acknowledged that Section 3(5)(a) of the ESA defines monitor water quality, habitat structure Devils Lake was the most productive of critical habitat as occupied areas and complexity, and fish populations. these ten populations but that the containing physical or biological overall watershed did not warrant a features that are (1) essential to the Comments Regarding the Designation of high conservation value relative to other conservation of the species and (2) Critical Habitat adjacent watersheds with more which may require special management Comment 7: One Federal commenter extensive habitat areas and functionally considerations or protections. provided information recommending independent populations (e.g., the Siletz Consistent with the statute, in changes to designated stream reaches in River and Yaquina River watersheds). identifying areas meeting the definition several watersheds due to errors in Regardless, Devils Lake and all other of critical habitat for this ESU, we interpreting existing salmon distribution habitat areas in the Devils Lake/Moolack identified the physical or biological maps, recent field surveys, and the Frontal watershed are designated as features essential to the conservation of location of impassible barriers. This critical habitat for Oregon Coast coho the ESU, identified the occupied areas commenter also questioned the salmon. where these features are present, and inclusion of Jackson and Josephine Comment 9: One tribal government then determined whether these features counties as within the range of areas expressed support of the proposed in each area may require special designated as critical habitat for Oregon exclusion of Indian lands from the area management considerations and Coast coho salmon. eligible for critical habitat designation. protections. The bases for these Response: In light of the specific The tribe agreed with our proposal that conclusions are described further below comments received, we have reviewed designating Indian lands as critical and in a separate report (NMFS, 2007b). all the data regarding habitat areas habitat would adversely impact tribal Section 4(b)(2) of the ESA gives the occupied by coho salmon and the partnerships with us and limit the Secretary discretion to exclude areas location of impassible barriers. This benefits that result from collaboration. from critical habitat if he determines review included discussions with local Additionally, the tribe felt that the that benefits of exclusion outweigh the ODFW biologists familiar with the areas proposal to not designate Indian lands benefits of designation. Exercising the in question. The majority of suggested as critical habitat appropriately discretion to exclude an area from revisions were found to be warranted, acknowledges tribal sovereignty and critical habitat requires evidence of a and, as a result, we have updated the authority in managing natural resources benefit of exclusion. Section 4(b)(2) and endpoints delineating areas occupied by on their lands. the supporting legislative history make coho salmon, including those Response: This final rule maintains clear that the consideration and weight designated as critical habitat, in ten the exclusion of Indian lands for the given to impacts are within the watersheds (see ‘‘Summary of Changes reasons described in the Exclusions Secretary’s (H.R. 95–1625) discretion from the Proposed Critical Habitat Based on Impacts to Tribes section and that exclusion is not required even Designation’’). We have also removed below. when the benefits of exclusion outweigh Josephine and Jackson counties from the Comment 10: Several commenters the benefits of designation. In other relevant critical habitat table in our argued that the conservation benefits critical habitat designations for Pacific regulations. These counties overlap provided by certain conservation salmon and steelhead, the Secretary slightly with upland areas in watersheds measures on non-Federal lands provide excluded areas from critical habitat on occupied by Oregon Coast coho salmon, sufficient protections so that there private lands covered by habitat but they do not contain stream reaches would be minimal benefit of designating conservation plans because there was designated as critical habitat for this the affected areas as critical habitat. One evidence in the record that exclusion ESU. commenter felt that existing forest would enhance the relationship Comment 8: Two commenters protections under the Oregon Forest between the landowner and the agency. questioned the ‘‘medium’’ conservation- Protection Act and associated best That improved relationship was value rating assigned by the CHART to management practices adequately expected to result in improved the habitat area for Devils Lake coho. protect the PCEs found on private and implementation of the plan and These areas are within a larger Devils state forest lands in the State of Oregon. incentives for the development of other

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plans, increasing conservation benefits for the bull trout. In the final rule lands at this time, we will work with the for fish (70 FR 52630; September 2, designating critical habitat for 12 Pacific land management agencies to develop 2005). Regarding private and state lands Northwest ESUs (70 FR 52630; the information and consider exclusion subject to Oregon’s forest practice laws, September 2, 2005), we considered of Federal lands, as well as alternative there is no conservation agreement in extensive comments supporting and approaches to designation, where the place between landowners and NMFS, opposing the exclusion of Federal lands, analysis provides appropriate support. nor any evidence in the record as well as comments concerning We anticipate that further analyses supporting a conclusion that alternative approaches for assessing the using principles such as those above can conservation actions of landowners benefits of exclusion versus inclusion of result in additional data to inform the subject to these laws would improve as lands as critical habitat. That final rule ESA Section 4(b)(2) analysis regarding a result of exclusion. The same is true also stated the following with regard to possible exclusion of Federal lands from for lands generally covered by the the potential exclusion of Federal lands critical habitat designations. Oregon Plan. Based on our review of and alternative approaches to Comment 12: One commenter and a available information, we found there designation: peer reviewer expressed concern that were insufficient data and analysis to the economic analysis failed to consider We will continue to study this issue and conclude that there is a benefit of alternative approaches in future rulemakings the full range of economic benefits of exclusion. Absent evidence of a benefit designating critical habitat. In particular, we salmon habitat conservation and, of exclusion, we could not conclude intend to analyze the planning and therefore, provided a distorted picture that the benefits of exclusion outweigh management framework for each of the of the economic consequences of the benefits of inclusion. ownership categories proposed for designating versus excluding eligible Comment 11: Two Federal consideration for exclusion. In each case, we habitat areas. The commenter expressed commenters felt that all Federal lands envision that the planning and management concern that the economic impact of not merited exclusion from designation as framework would be evaluated against a set designating particular areas would critical habitat. They contended that of criteria, which could include at least some impede recovery efforts, and this cost or all of the following: conservation benefits under PACFISH, 1. Whether the land manager has specific should be considered in the economic the Northwest Forest Plan, and National written policies that create a commitment to analysis. The commenter cited the lack Forest Land and Resource Management protection or appropriate management of the of consideration in the economic Plans (LRMPs) provide necessary physical or biological features essential to analysis of the potential benefits of protection and special management that long-term conservation of ESA-listed salmon critical habitat designation to: (1) Other eliminates the need to designate habitats and steelhead. aquatic and riparian species; (2) water on Federal lands as critical. These 2. Whether the land manager has quality; (3) recreation; and (4) increased commenters contended that designating geographically specific goals for protection or recreational, commercial, and tribal critical habitat on these Federal lands appropriate management of the physical or harvest opportunities that would be was unnecessarily duplicative of biological features essential to long-term available with recovery. conservation of ESA-listed salmon and Response: As described in the existing ESA section 7 consultation steelhead. processes, inefficient (e.g., citing costs 3. Whether the land manager has guidance economic analysis (NMFS, 2007c) and of re-initiating consultation), while for land management activities designed to ESA section 4(b)(2) report (NMFS, offering no additional conservation achieve goals for protection or appropriate 2007d), we did not have information benefit to the listed species. They management of the physical or biological available at the scale of this designation believed that excluding Federal lands features essential to long-term conservation that would allow us to quantify the would be consistent with our exclusion of ESA-listed salmon and steelhead. benefits of designation in terms of of military lands that are subject to 4. Whether the land manager has an increased fisheries. Such an estimate Integrated Natural Resource effective monitoring system to evaluate would have required us to estimate the Management Plans, which they felt progress toward goals for protection or additional number of fish likely to be appropriate management of the physical or produced as a result of the designation, contain similar provisions for the biological features essential to long-term protection and restoration of listed conservation of ESA-listed salmon and and would have required us to species. steelhead. determine how to allocate the economic Response: ESA section 4(b)(2) 5. Whether the land manager has a benefit from those additional fish to a provides the Secretary with discretion management framework that will adjust particular watershed. Instead, we to exclude areas from the designation of ongoing management to respond to considered the ‘‘benefits of designation’’ critical habitat if the Secretary monitoring results and/or external review in terms of conservation value ratings determines that the benefits of exclusion and validation of progress toward goals for for each particular area (see ‘‘Methods outweigh the benefits of designation, protection or appropriate management of the and Criteria Used to Designate Critical and the Secretary finds that exclusion of physical or biological features essential to Habitat’’ section below). We also lacked the area will not result in extinction of long-term conservation of ESA-listed salmon information to quantify and include in and steelhead. the species. In the proposed rule, and 6. Whether the land manager has effective the economic analysis the economic the reports supporting it, we explained arrangements in place for periodic and timely benefit that might result from such the policies that guided us and provided communications with NOAA on the things as improved water quality or supporting analysis for a number of effectiveness of the planning and flood control, or improved condition of proposed exclusions. We also noted a management framework in reaching mutually other species. number of additional potential agreed goals for protection or appropriate Moreover, we did not have exclusions, including those associated management of the physical or biological information at the scale of this with the Oregon Coast coho salmon due features essential to long-term conservation designation that would allow us to to conservation measures within the of ESA-listed salmon and steelhead. consider the relative ranking of these Northwest Forest Plan on Federal lands, NMFS has continued dialogue with the types of benefits on the ‘‘benefits of explaining that we were considering Federal land management agencies designation’’ side of the ESA section them because the Secretary of the since that time. Although we have not 4(b)(2) balancing process. Our primary Interior had recently made similar yet developed the type of information focus was to determine, consider, and exclusions in designating critical habitat that would allow us to exclude Federal balance the benefits of designating these

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areas to the conservation of the listed BRT’s conclusions are made available to food availability, or the relationship species. Given the uncertainties the decision maker for consideration. between juvenile survival and the involved in quantifying or even ranking Typically, the BRT’s review takes about supply of carcasses. Our current record these ancillary types of benefits, we did 3–6 months to complete. lacks the information and analyses not include them in our analysis. At the same time, regulatory staff necessary to assess the present status of gather updated information about the freshwater habitat conditions and Final Species Determination status and trends for other related functional processes in the ESU. Oregon The Oregon Coast coho ESU includes factors, including the potential has aggressively implemented habitat all naturally spawned populations of contributions (both positive and conservation efforts, yet we lack the coho salmon in Oregon coastal streams negative) from hatchery programs, the data necessary to resolve the benefits south of the Columbia River and north condition of the habitat, and the realized from these efforts by coho of Cape Blanco (63 FR 42587; August expected implementation and populations given the considerable 10, 1998). One hatchery stock is effectiveness of conservation efforts. variability in other environmental considered part of the ESU: The Cow This information is considered together processes. In short, the recently Creek (ODFW stock # 37) hatchery coho with the BRT’s recommendations in available abundance information is not stock. forming a final determination and necessarily indicative of degraded On June 14, 2004, we proposed that preparing a written explanation of that freshwater habitat conditions, nor is it five artificial propagation programs determination. convincingly suggestive of a declining should be considered part of the ESU While the above steps were conducted long-term trend for the ESU. Given the (69 FR 33102), including the North Fork for Oregon Coast coho prior to the opportunity for further scientific review, Nehalem River (ODFW stock # 32), the issuance of the 2004 proposed rule, the it is possible that an improved North Umpqua River (ODFW stock # court order in Trout Unlimited requiring understanding of the roles marine 18), Coos Basin (ODFW stock # 37), and a final determination and the time conditions and stream-nutrient supply the Coquille River (ODFW stock # 44) allowed for making that final play in determining coho population coho hatchery programs. Informed by determination do not permit us to dynamics, might require revision of this our analysis of the comments received follow our typical practice anew for determination. In summary, if we had from ODFW, and other recently Oregon Coast coho. The available record been permitted to consider all the available information (see Comment 1 contains a BRT recommendation and scientific information in the record, and and response, above), we conclude that report made in 2003, based on status if we had been allowed more time to do these four hatchery programs are not information through 2002. The a complete scientific review of new part of the Oregon Coast coho ESU. information in the record about the information in a manner consistent with Assessment of the Species’ Status condition of the habitat and the our typically thorough and effectiveness of conservation efforts is comprehensive analytical processes, The steps we follow in making a also mostly data collected prior to 2003. there is a reasonable possibility that we listing determination are to: Review the We have also considered draft reports of would have reached a different final status of the species, analyze the factors the Technical Recovery Team for the listing determination. listed in section 4(a)(1) of the ESA to Oregon Coast. These draft reports are identify threats facing the species, directed primarily at the population Consideration of Information in the assess whether certain protective efforts structure of and recovery criteria for the January 2006 Record mitigate these threats, and predict the Oregon Coast coho ESU, rather than the Biological Review Team Findings— species’ future persistence. Below we determination required for a listing The 2003 BRT considered data available summarize the information we decision. through 2002. The abundance and evaluated in reviewing the status of the Quantitative information available to productivity of Oregon Coast coho since Oregon Coast coho ESU. We considered us for this determination also includes the previous status review (NMFS, the information included in the record numerical information on the 1997a) represented some of the best and for our January 2006 determination in a abundance of Oregon Coast coho worst years on record. Yearly adult manner consistent with the Court’s through 2006, preliminary spawner returns for the Oregon Coast coho ESU ruling in Trout Unlimited. We also survey information for 2007, and were in excess of 160,000 natural considered additional status estimates of the ocean survival for coho spawners in 2001 and 2002, far information that was readily available through 2006. Comparison of the exceeding the abundance observed for since our January 2006 decision, to abundance of the naturally-produced the past several decades. These determine if this new information is coho with the marine survival index encouraging increases in spawner consistent with our conclusion based on suggests the possibility that much of the abundance in 2000–2002 were the January 2006 (as the Court has variability in coho numbers over the last preceded, however, by three ordered us to consider it). decade or so may be due to fluctuations consecutive brood years (the 1994–1996 We begin a typical listing in the availability of food in the near- brood years returning in 1997–1999, determination for a salmon ESU by shore ocean (NMFS, 2007k). In addition, respectively) exhibiting recruitment gathering the most recent available and there is some indication that juvenile failure (recruitment failure is when a relevant biological information and survival is limited by the supply of given year class of natural spawners appointing a panel of Federal scientists nutrients from the carcasses of fails to replace itself when its offspring (the BRT) familiar with the biology and spawning adult coho (Bilby et al., 2001). return to the spawning grounds 3 years population dynamics of salmon. This It is possible that existing freshwater later). These 3 years of recruitment panel reviews the status information, habitat is adequate to support a viable failure were the only such instances considers and discusses various ESU, and that the fluctuations observed observed thus far in the entire 55-year possible interpretations of the in Oregon Coast coho populations are abundance time series for Oregon Coast information, and prepares a written partially driven by the supply of coho salmon (although comprehensive report containing its recommendations carcasses. The 2003 BRT did not population-level survey data have only as well as the basis for them. In explicitly consider the relationship been available since 1980). The addition, the documents underlying the between coho abundance and marine encouraging 2000–2002 increases in

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natural spawner abundance occurred in that this ESU was not ‘‘in danger of ‘‘persistent’’ ESU as one that is able to many populations in the northern extinction’’ or ‘‘likely to become persist (i.e., not go extinct) over a 100- portion of the ESU, populations that endangered within the foreseeable year period without artificial support, were the most depressed at the time of future.’’ Furthermore, the minority relating the term to ‘‘the simple risk of the last review (NMFS, 1997a). believed that recent strong returns extinction, which is the primary Although encouraged by the increase in following 3 years of recruitment failure determination of endangered status spawner abundance in 2000–2002, the demonstrated that populations in this under the ESA’’). The TRT further stated BRT noted that the long-term trends in ESU are resilient. that ‘‘our evaluation of biological ESU productivity were still negative due Consideration of Artificial viability based on current and recent to the low abundances observed during Propagation—Our review of the five past conditions shows a high degree of the 1990s. hatchery programs that were proposed uncertainty with respect to the The majority of the BRT felt that the to be listed as part of the ESU concluded statement that the ESU is sustainable’’ recent increases in coho returns were that they collectively do not (the TRT defines a ‘‘sustainable’’ ESU as most likely attributable to favorable substantially reduce the extinction risk ‘‘one that, in addition to being ocean conditions and reduced harvest of the ESU (NMFS, 2003a, 2004a, 2004b; persistent, is able to maintain its genetic rates. The BRT was uncertain as to see proposed rule for a more detailed legacy and long-term adaptive potential whether such favorable marine explanation of this assessment, 69 FR for the foreseeable future * * * so that conditions would continue into the 33102; June 14, 2004). Our final risk of extinction will not increase in future. Despite the likely benefits to determination that the North Umpqua the future,’’ relating the term to spawner abundance levels gained by the River, Coos Basin, Coquille River, North ‘‘threatened status under the ESA’’). dramatic reduction of harvest rates on Fork Nehalem River, and Fishhawk Biological Implications of Ocean- Oregon Coast coho populations (PFMC, Lake coho hatchery programs are not Climate Conditions—In an August 12, 1998), harvest cannot be significantly part of the ESU does not alter our 2005, memorandum, NMFS’ Northwest further reduced in the future to previous conclusion that artificial Fisheries Science Center (NWFSC) compensate for declining productivity propagation does not contribute summarized the most recent due to other factors. The BRT was appreciably to the viability of the ESU. information available on West Coast concerned that if the long-term decline In Trout Unlimited v. Lohn (Civ. No. ocean conditions, described in productivity reflected deteriorating 06–0483–JCC (W. D. Wash., June 13, observations of impacts on marine conditions in freshwater habitat, this 2006), the U.S. District Court for the ESU could face very serious risks of Western District of Washington set aside communities, and offered predictions of local extirpations if ocean conditions our 2005 Hatchery Listing Policy, the implications of recent ocean reverted back to poor productivity finding that the Policy’s consideration conditions on West Coast salmon stocks, conditions. Approximately 30 percent of of both natural and hatchery fish in ESA including the Oregon Coast coho ESU the ESU has suffered habitat listing determinations departs from the (NMFS, 2005e). The memorandum fragmentation by culverts and thermal ESA’s central purpose to promote and described recent observations of barriers, generating concerns about ESU conserve naturally self-sustaining anomalous ocean conditions that may spatial structure. Additionally, the lack populations. Although the extinction portend lower returns of coho salmon of response to favorable ocean risk assessment in the 2006 record for the fall of 2005 and the next several conditions for some populations in evaluated the status of the ESU in-total years. The memorandum noted that smaller streams and the different (including both within-ESU natural and indices of ocean-climate variation are patterns between north and south coast hatchery fish), we found that suggestive of a regime shift in ocean- populations may indicate compromised consideration of artificial propagation climate conditions that in the past have connectivity among populations. The does not reduce the risk of extinction of been associated with warmer water degradation of many lake habitats and the ESU. Therefore, the above described temperature, poor primary productivity, the resultant impacts on several lake assessment of extinction risk does not and generally less favorable conditions populations in the Oregon Coast coho require revision in light of the ruling in for coho marine survival. The recent in- ESU also pose risks to ESU diversity. the above case. situ observations confirm delayed The BRT noted that hatchery closures, Preliminary Results of Oregon Coast coastal upwelling, anomalously warm reductions in the number of hatchery Coho Recovery Planning—NMFS’ sea surface temperatures, altered smolt releases, and improved marking Technical Recovery Team (TRT) for the zooplankton community structure, and rates of hatchery fish have significantly Oregon and Northern California Coast is low survey abundances of juvenile reduced risks to diversity associated charged with describing the historical salmon, possibly indicating low marine with artificial propagation. population structure, developing survival. Strong upwelling occurred in The BRT found high risk to the ESU’s biological recovery criteria with which mid-July 2005 resulting in cooler sea productivity, and comparatively lower to evaluate the status of an ESU relative surface temperatures, increased primary risk to the ESU’s abundance, spatial to recovery, and identifying those productivity, and generally more structure, and diversity. Informed by factors limiting or impeding recovery. favorable conditions for salmon this risk assessment, a slight majority of Prior to our 2006 determination not to survival. It was unclear whether this the BRT concluded that the Oregon list the Oregon Coast coho ESU, the TRT delayed onset of coastal upwelling Coast coho ESU was ‘‘likely to become provided a preliminary report on its would compensate for earlier endangered within the foreseeable progress in developing these products unfavorable conditions which occurred future.’’ However, a substantial minority for the Oregon Coast coho ESU (NMFS, during critical life-history stages for of the BRT concluded that the ESU was 2005d). The TRT’s preliminary report coho salmon. The memorandum noted ‘‘not in danger of extinction or likely to underscored the uncertainty associated that model projections indicate that fish become endangered within the with assessing the future status of the populations that prey on juvenile coho foreseeable future.’’ The minority ESU. The TRT stated that ‘‘at this time salmon may be reduced, possibly believed that the large number of our evaluation indicates, with a compensating somewhat for unfavorable spawners in 2001–2002 and a high moderate degree of uncertainty, that the marine survival conditions for coho projected abundance for 2003 suggested ESU is persistent’’ (the TRT defines a returns in 2006. The memorandum

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concluded that the NWFSC was number of spawning recruits resulting observed thus far in the 2007–2008 relatively confident that the negative from spawners 3 years earlier) was spawning season. biological implications of recent ocean above replacement (approximately 3.2 Our review of the above new conditions for the Oregon Coast coho recruits per spawner). ESU-level abundance and productivity ESU would be dramatic over the next productivity was essentially at information and the TRT’s 2007 draft few years. replacement in 2004 (approximately report does not indicate that the status 0.99 recruits per spawner), but below of the Oregon Coast coho ESU has Conclusions Regarding the Status of the replacement in 2005 and 2006. The improved since the 2003 BRT report. Oregon Coast Coho ESU productivity observed in 2006 The recent 5-year geometric mean We conclude, after considering the (approximately 0.49 recruits per abundance (2002–2006) of above information contained in the spawner) is the lowest observed since approximately 152,960 total natural record of our January 2006 1991. From 2003–2006 harvest rates spawners remains well above that of a determination (in a manner consistent remained low, averaging approximately decade ago (approximately 52,845 from with the Court’s order), that the Oregon 12 percent of the total run. Marine 1992–1996). However, the decline in Coast coho ESU is likely to become an survival from 2003–2006 (estimated in productivity from 2003 to 2006, despite endangered species in the foreseeable terms of the number of returning generally favorable marine survival future throughout all or a significant hatchery adults resulting from the conditions and low harvest rates, is of portion of its range. This finding is number of hatchery smolts released 2 concern. based, in part, on the BRT’s slight years earlier) was generally at or above After reviewing the scientific and majority conclusion that the ESU is the average during 1990–2006. The commercial information available in the ‘‘likely to become endangered in the decline in ESU productivity from 2003– record concerning the status of the foreseeable future.’’ The TRT’s 2006, while marine survival conditions Oregon Coast Coho (in a manner subsequent preliminary assessment of were generally favorable, suggests that consistent with the Court’s order) and ESU viability (NMFS, 2005d) was factors other than ocean conditions are adding to the record the Draft 2007 TRT consistent with the BRT’s assessment, responsible for the decline. report, 2003–2006 abundance and finding a high degree of uncertainty In August 2007, the Oregon and marine survival information, and whether the ESU is sustainable for the Northern California Coast TRT released preliminary spawner survey information foreseeable future. Although returns in a draft report entitled ‘‘Biological for 2007, we conclude that this 2001 and 2002 were extremely Recovery Criteria for the Oregon Coast information requires a conclusion that encouraging, there remained concern coho Salmon Evolutionarily Significant the ESU is likely to become an whether future ocean conditions would Unit’’ (Wainwright et al., 2007). This endangered species in the foreseeable favor such high levels of recruitment. draft report presents biological criteria future throughout all or a significant The NWFSC’s August 2005 for assessing the ESU’s progress toward portion of its range. The recent declines memorandum describing the recovery, and also applies these criteria in the ESU’s abundance and implications of recent ocean-climate in assessing the current biological status productivity are not necessarily conditions (NMFS, 2005e) did not of the ESU. The TRT considered the indicative of a substantial degradation assuage this concern, concluding that population data available through 2004. of the ESU’s status. Similar interannual recent ocean conditions portended This draft report thus represents a more variability in abundance and unfavorable marine survival conditions recent assessment of the ESU’s status productivity has been observed for Oregon Coast coho in the near term. relative to the 2003 BRT’s review. The previously for the Oregon Coast coho Consideration of New Information Since results of the recent draft report are ESU, and similar variability is expected the January 2006 Determination consistent with the TRT’s preliminary to occur in the future. The principal progress report described above (NMFS, inquiry in determining if the ESU The ESA requires that listing 2005d), finding that there is low to determinations be made solely on the warrants listing is whether present moderate certainty that the ESU is habitat conditions are sufficient to basis of the best scientific and sustainable for the foreseeable future. commercial data available. To that end, support a viable ESU, and whether The recent draft report considered the future freshwater habitat conditions are we also considered new status and trend population data available through 2004, information made available since the expected to degrade. The present and and thus does not reflect the declining future status of freshwater habitat for 2003 BRT report, and since our January abundance and productivity observed in 2006 ‘‘not warranted’’ determination to the Oregon Coast coho ESU remains 2005 and 2006. uncertain. As noted above, we believe ensure that our present listing Preliminary spawner survey data for that if we had been permitted to determination for the Oregon Coast coho 2007 (the average peak number of consider all the scientific information in ESU has considered the best spawners per mile observed during the record, and if we had been allowed information available. We evaluated random coho spawning surveys in 41 more time for a complete scientific these new data to determine whether streams) suggest that the 2007–2008 they supported our risk assessment return of Oregon Coast coho is either (1) review of new information in a manner based on the information contained in much reduced from abundance levels in consistent with our typically thorough the January 2006 record alone. 2006, or (2) exhibiting delayed run and comprehensive analytical Since the BRT convened in January timing from previous years. As of processes, there is a reasonable 2003, the total abundance of natural December 13, 2007, the average peak possibility that we would have reached spawners in the Oregon Coast coho ESU number of spawners per mile was below a different final listing determination. has declined each year (i.e., 2003–2006). 2006 levels in 38 of 41 surveyed streams Final Listing Determination The abundance of total natural (ODFW, 2007). It is possible that the spawners in 2006 (111,025 spawners) timing of peak spawner abundance is Consideration of ESA Section 4(a)(1) was approximately 43 percent of the delayed relative to previous years, and Factors recent peak abundance in 2002 (255,372 that increased spawner abundance in Section 4(a)(1) of the ESA and NMFS’ spawners). In 2003, ESU-level late December 2007 and January 2008 implementing regulations (50 CFR part productivity (evaluated in terms of the will compensate for the low levels 424) requires us to add a species to the

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List of Endangered and Threatened whether current habitat conditions are freshwater habitat conditions will be Species if it is endangered or threatened adequate to support the ESU’s adequate to support a viable coho ESU, because of any one or a combination of persistence (that is, whether the species particularly during periods of the following factors: (1) The present or is endangered or threatened because of unfavorable ocean conditions and poor threatened destruction, modification, or present destruction, modification, or marine survival. curtailment of its habitat or range; (2) curtailment of its habitat or range) and B. Overutilization for Commercial, overutilization for commercial, whether habitat conditions are likely to Recreational, Scientific or Educational recreational, scientific, or educational worsen in the future (that is, whether Purposes purposes; (3) disease or predation; (4) the species is endangered or threatened inadequacy of existing regulatory because of threatened destruction, Harvest rates on Oregon Coast coho mechanisms; or (5) other natural or modification, or curtailment of its populations ranged between 60 and 90 human-made factors affecting its habitat or range). Regarding the first percent between the 1960s and 1980s continued existence. We have issue, the 2003 BRT noted uncertainty (Good et al., 2005). Modest harvest previously detailed the impacts of about the adequacy of current habitat restrictions were imposed in the late various factors contributing to the conditions, and this uncertainty 1980s, but harvest rates remained high decline of Pacific salmonids as part of contributed to the slight majority until most directed coho salmon harvest our prior listing determinations for 27 finding that the ESU was likely to was prohibited in 1994. These ESUs, as well as in supporting technical become an endangered species within restrictive harvest regulations, reports (e.g., NMFS, 1997b, ‘‘Coastal the foreseeable future. developed concurrently with the Oregon Plan and subsequently revised, have coho habitat factors for decline and Regarding the second issue, the threat protective efforts in Oregon;’’ NMFS, imposed conservative restrictions on of future habitat declines, the 2003 BRT directed and incidental fishery 1997c, ‘‘Factors Contributing to the noted that ‘‘if the long-term decline in Decline of Chinook Salmon—An mortality, and appropriately consider productivity [of the Oregon Coast coho marine survival conditions and the Addendum to the 1996 West Coast ESU] reflects deteriorating conditions in Steelhead Factors for Decline Report;’’ biological status of naturally produced freshwater habitat, this ESU could face coho populations. Under these revised NMFS, 1996a, ‘‘Factors for Decline—A very serious risks of local extinction Supplement to the Notice of regulations, harvest rates are stipulated during the next cycle of poor ocean Determination for West Coast Steelhead to be between 0 and 8 percent during conditions.’’ The BRT thus identified Under the Endangered Species Act’’). critically low spawner abundance, and potential future habitat declines as a Our prior listing determinations and may increase to a maximum potential concern. As part of our technical reports concluded that all of exploitation rate of 45 percent under January 2006 determination we the factors identified in section 4(a)(1) high survival and abundance conditions evaluated the likely future trend of of the ESA have played a role in the (Oregon, 2005). Empirical data over the various habitat elements and the likely decline of West Coast salmon and last 10 years show that harvest mortality impact of future population growth steelhead. In our 1998 threatened listing for Oregon Coast coho has been (NMFS, 2005a). With respect to determination for the Oregon Coast coho maintained below 15 percent since the ESU (63 FR 42588; August 10, 1998), we population growth and urbanization, we adoption of the revised regulations concluded that the decline of Oregon found that approximately 3.4 percent of (Oregon, 2005). We agree with the 2003 Coast coho populations is the result of ‘‘high intrinsic potential’’ habitat areas BRT’s finding that overutilization has several longstanding, human-induced for coho (e.g., lowland stream reaches been effectively addressed for Oregon factors (e.g., habitat degradation, water particularly important to juvenile coho Coast coho populations. rearing and overwintering survival) are diversions, harvest, and artificial C. Disease or Predation propagation) that exacerbate the adverse within currently designated urban effects of natural environmental growth areas, suggesting that future Past species introductions and habitat variability (e.g., floods, drought, and human population growth may not modifications have resulted in increased poor ocean conditions). The following represent a significant threat to the ESU non-native predator populations, discussion briefly summarizes our (NMFS, 2005a). With respect to lowland notably in coastal lake habitats. findings regarding the threats currently and upland habitat areas under various Predation by increased populations of facing the Oregon Coast coho ESU. types of land use and ownership, we marine mammals (principally sea lions) While these threats are treated in found that some areas are likely to may influence salmon abundance in general terms, it is important to improve, some are likely to decline, and some local populations when other prey underscore that impacts from certain others are likely to remain in their species are absent and where physical threats are more acute for some current condition. Overall, there is a conditions lead to the concentration of populations in the ESU. high level of uncertainty associated with adults and juveniles (e.g., Cooper and projections of future habitat conditions Johnson, 1992). However, the extent to A. The Present or Threatened due to underlying economic and which marine mammal predation Destruction, Modification, or sociopolitical factors influencing forest threatens the persistence of Oregon Curtailment of Its Habitat or Range harvest and restoration rates, urban coast coho populations is unknown. In many Oregon coastal streams, past conversion of agricultural and forest Infectious disease is one of many human activities (e.g., logging, lands, and the enforcement and factors that can influence adult and agriculture, gravel mining, urbanization) implementation of land-use plans and juvenile salmon survival. Salmonids are have resulted in impediments to fish regulations. Based on our analysis, we exposed to numerous bacterial, passage, degradation of stream found that there is insufficient evidence protozoan, viral, and parasitic complexity, increased sedimentation, to conclude that the Oregon Coast coho organisms in spawning and rearing reduced water quality and quantity, loss ESU was more likely than not to become areas, hatcheries, migratory routes, and and degradation of riparian habitats, an endangered species because of the the marine environment. Specific and loss and degradation of lowland, ‘‘threatened destruction, modification, diseases such as bacterial kidney estuarine, and wetland coho rearing or curtailment of its habitat or range.’’ disease, ceratomyxosis, columnaris, habitats. The relevant issues are It remains uncertain whether future furunculosis, infectious hematopoietic

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necrosis virus, redmouth and black spot predicting ocean-climate conditions into 2004, proposed rule for a summary of disease, erythrocytic inclusion body the foreseeable future and their efforts, including those under the syndrome, and whirling disease, among biological impacts on the Oregon Coast Oregon Plan, being made to protect others, are present and known to affect coho ESU. Variability in ocean-climate Oregon Coast coho populations (69 FR West Coast salmonids (Rucker et al., conditions is expected, and coho 33102, at 33142). Harvest reductions 1953; Wood, 1979; Leek, 1987; Foott et productivity and abundance are and improvements in hatchery al., 1994; Gould and Wedemeyer, similarly expected to fluctuate in management are noteworthy in that they undated). In general, very little current response to this natural environmental have been fully implemented and their or historical information exists to variability. It is unknown whether effectiveness is manifested in the quantify trends over time in infection unfavorable ocean conditions will improved status of Oregon Coast coho levels and disease mortality rates. predominate in the foreseeable future. populations. The benefits of these However, studies have shown that Prior to the 1990s, coho hatchery accomplishments in hatchery and naturally spawned fish tend to be less programs along the Oregon coast posed harvest management under the Oregon susceptible to pathogens than hatchery- substantial risks to the survival, Plan, however, were fully considered in reared fish (Buchanon et al., 1983; reproductive fitness, and diversity of the 2003 BRT’s assessment of ESU Sanders et al., 1992). Native salmon natural populations. High numbers of extinction risk. In our June, 14, 2004, populations have co-evolved with hatchery coho were released in most of proposed listing for the Oregon Coast specific communities of these the basins in the ESU, most programs coho ESU (69 FR 33102), we evaluated organisms, but the widespread use of propagated non-native broodstocks, and all other relevant protective efforts and artificial propagation has introduced naturally spawning hatchery-origin determined that they did not exotic organisms not historically present strays were common in most natural substantially alter our finding that the in a particular watershed. Habitat production areas. Oregon’s aggressive ESU is likely to become an endangered conditions such as low water flows and hatchery reform efforts have resulted in species within the foreseeable future high temperatures can exacerbate substantial reductions of this threat. throughout all or a significant portion of susceptibility to infectious diseases. Hatchery coho are released in less than its range. Aggressive hatchery reform efforts half of the populations in the ESU, and Since our January 2006 implemented by the State of Oregon the magnitude of releases has declined determination, the State of Oregon have reduced the magnitude and from a peak of 35 million smolts in released a draft Coho Conservation Plan distribution of hatchery fish releases in 1981, to approximately 800,000 in 2005. for Oregon Coast coho. The draft the ESU, and, consequently, the Hatchery programs are currently Conservation Plan culminated a 2-year interactions between hatchery- and constrained to releasing no more than development process including natural-origin fish and the potential 200,000 smolts in any basin. The significant input and involvement from transmission of infectious diseases. reduction in the number of hatchery fish local stakeholders. The draft Additionally, regulations controlling released has reduced the potential for conservation plan establishes ambitious hatchery effluent discharges into competition with, and predation on, conservation goals and is an important streams have reduced the potential of natural coho. The proportion of step in describing limiting factors and pathogens being released into coho hatchery-origin fish in natural spawning threats, identifying specific habitats. areas has been reduced to below 10 conservation actions to address these percent in all but two populations in the factors and threats, and designing a D. The Inadequacy of Existing ESU. All hatchery coho releases in the robust research and monitoring program Regulatory Mechanisms ESU are now marked, affording to evaluate the effectiveness of Existing regulations governing coho improved monitoring and assessment of conservation actions that contribute to harvest have dramatically improved the the co-existing naturally produced coho rebuilding the Oregon Coast coho ESU. ESU’s likelihood of persistence. These populations. Broodstock management As reflected in the comments that we regulations are unlikely to be weakened practices have been modified to provided on the draft Conservation Plan in the future. Of the wide range of land minimize the potential for hatchery- (NMFS, 2007e), the plan lacks the uses and other activities affecting origin fish to pose risks to the genetic necessary detail, specificity, and salmon habitat, however, some are more diversity of local natural populations. commitment of resources to provide amenable to regulation than others. In We conclude the ESU is not in danger sufficient certainty of implementation the range of Oregon Coast coho, the of extinction or likely to become and effectiveness to alter our assessment regulation of some activities and land endangered in the foreseeable future that the ESU is likely to become an uses will alter past harmful practices, because of hatchery practices. endangered species within the resulting in habitat improvements; the foreseeable future throughout all or a Efforts Being Made To Protect the regulation of other activities is significant portion of its range. Species inadequate to alter past harmful Final Listing Determination practices, resulting in habitat conditions Section 4(b)(1)(A) of the ESA requires continuing in their present state; and the Secretary to make listing The ESA defines an endangered the regulation of still other activities determinations solely on the basis of the species as any species in danger of and land uses will lead to further best scientific and commercial data extinction throughout all or a significant degradation (NMFS, 2005a). available after taking into account portion of its range, and a threatened efforts being made to protect a species. species as any species likely to become E. Other Natural or Manmade Factors In making listing determinations we an endangered species within the Affecting Its Continued Existence first assess the species’ level of foreseeable future throughout all or a Natural variability in ocean and extinction risk, identify factors that significant portion of its range. Section freshwater conditions has at different threaten its continued existence, and 4(b)(1) of the ESA requires that the times exacerbated or mitigated the assess existing efforts being made to listing determination be based solely on effects on Oregon Coast coho protect the species to determine if those the best scientific and commercial data populations of habitat limiting factors. measures ameliorate the risks it faces. available, after conducting a review of There is considerable uncertainty in The reader is referred to the June 14, the status of the species and taking into

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account those efforts, if any, being made the conservation and recovery of the specified period from the notice’s to protect such species. listed species. publication (70 FR 37160). The limit The information included in the The June 2005 amended ESA section was again modified in February 2006 record of our January 2006 4(d) regulations simplified the when the 4(d) regulations were determination (as the Court has ordered previously promulgated 4(d) rules by extended to the Upper Columbia River us to consider it) indicates that the applying the same set of 14 ‘‘limits’’ to steelhead DPS (71 FR 5178; February 1, Oregon Coast coho ESU is likely to all threatened salmon and steelhead. 2006). The deadlines associated with become an endangered species within These limits allow us to exempt certain this exemption have expired. Consistent the foreseeable future throughout all or activities from the take prohibitions, with the 2004 proposed rule to list a significant portion of its range. New provided that the applicable programs Oregon Coast coho and extend 4(d) abundance and productivity data do not and regulations meet specific conditions regulations to the ESU (69 FR 33102; suggest that the ESU’s biological status to adequately protect the listed species. June 14, 2004), we believe it is has improved since our January 2006 In this final rule we are applying this necessary and advisable for the determination. Efforts being made to same set of 14 limits to the Oregon Coast conservation and recovery of Oregon protect the species, at present, do not coho ESU. Comprehensive descriptions Coast coho to allow research and provide sufficient certainty of of each 4(d) limit are contained in ‘‘A enhancement activities to continue implementation or effectiveness to Citizen’s Guide to the 4(d) Rule’’ uninterrupted while we process the mitigate the assessed level of extinction (available on the Internet at http:// necessary permits and approvals. risk. Therefore, we conclude that the www.nwr.noaa.gov), and in previously Provided we receive a complete Oregon Coast coho ESU warrants listing published Federal Register notices (65 application by June 10, 2008, the take under the ESA as a threatened species. FR 42422, July 10, 2000; 65 FR 42485, prohibitions will not apply to research July 10, 2000; 69 FR 33102; June 14, and enhancement activities which affect Prohibitions and Protective Regulations 2004; 70 FR 37160, June 28, 2005). Oregon Coast coho until the application These ‘‘limits’’ include: activities On June 28, 2005, as part of the final is rejected as insufficient, a permit or conducted in accordance with ESA listing determinations for 16 ESUs of 4(d) approval is issued, or until March section 10 incidental take authorization West Coast salmon, we amended and 31, 2009, whichever occurs earliest. The (50 CFR 223.203(b)(1)); scientific or streamlined the previously promulgated length of this ‘‘grace period’’ is artificial propagation activities with ESA section 4(d) regulations for necessary because we process pending permit applications at the time threatened salmon and steelhead (70 FR applications for 4(d) approval annually. of rulemaking (§ 223.203(b)(2)); 37160). We finalized an amendment to emergency actions related to injured, Other Protective ESA Provisions provide the necessary flexibility to stranded, or dead salmonids ensure that fisheries and artificial (§ 223.203(b)(3)); fishery management Section 7(a)(4) of the ESA requires propagation programs are managed activities (§ 223.203(b)(4)); hatchery and that Federal agencies confer with NMFS consistently with the conservation genetic management programs on any actions likely to jeopardize the needs of threatened salmon and (§ 223.203(b)(5)); activities in continued existence of a species steelhead. Under this change the section compliance with joint tribal/state plans proposed for listing and on actions 4(d) protections apply to natural and developed within United States (U.S.) v. likely to result in the destruction or hatchery fish with an intact adipose fin, Washington or U.S. v. Oregon adverse modification of proposed but not to listed hatchery fish that have (§ 223.203(b)(6)); scientific research critical habitat. For listed species, had their adipose fin removed prior to activities permitted or conducted by the section 7(a)(2) requires Federal agencies release into the wild. Additionally, we states (§ 223.203(b)(7)); state, local, and to ensure that activities they authorize, made several simplifying and clarifying private habitat restoration activities fund, or conduct are not likely to changes to the 4(d) regulations, (§ 223.203(b)(8)); properly screened jeopardize the continued existence of a including updating an expired limit water diversion devices listed species or to destroy or adversely (section 223.203(b)(2)), providing a (§ 223.203(b)(9)); routine road modify its critical habitat. If a proposed temporary exemption for ongoing maintenance activities Federal action may affect a listed research and enhancement activities, (§ 223.203(b)(10)); certain park pest species or its critical habitat, the and applying the same set of 14 limits management activities responsible Federal agency must enter to all threatened salmon and steelhead. (§ 223.203(b)(11)); certain municipal, into consultation with NMFS or the FWS, as appropriate. Examples of Description of Protective Regulations residential, commercial, and industrial Federal actions likely to affect salmon Being Afforded Oregon Coast Coho development and redevelopment activities (§ 223.203(b)(12)); include authorized land management Consistent with the June 2005 management activities on state and activities of the USFS and the BLM, as amended ESA section 4(d) regulations, private lands within the State of well as operation of hydroelectric and this final rule applies the ESA section Washington (§ 223.203(b)(13)); and storage projects of the Bureau of 9(a)(1) take and other prohibitions activities undertaken consistent with an Reclamation (BOR) and the U.S. Army (subject to the ‘‘limits’’ discussed below) approved tribal resource management Corps of Engineers (USACE). Such to unmarked members of the Oregon plan (§ 223.204). activities include timber sales and Coast coho ESU with an intact adipose Limit § 223.203(b)(2) exempts harvest, permitting livestock grazing, fin. (The clipping of adipose fins in scientific or artificial propagation hydroelectric power generation, and juvenile hatchery fish just prior to activities with pending applications for flood control. Federal actions, including release into the natural environment is ESA section 4(d) approval. The limit the USACE section 404 permitting a commonly employed method for the was amended as part of the June 28, activities under the Clean Water Act, marking of hatchery production). We 2005, final rule to temporarily exempt USACE permitting activities under the believe this approach provides needed such activities from the take River and Harbors Act, Federal Energy flexibility to appropriately manage the prohibitions during a ‘‘grace period,’’ Regulatory Commission (FERC) licenses artificial propagation and directed take provided that a complete application for for non-Federal development and of threatened salmon and steelhead for 4(d) approval was received within a operation of hydropower, and Federal

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salmon hatcheries, may also require 2. Federally funded or approved These lists are not exhaustive. They consultation. projects that involve activities such as are intended to provide some examples Sections 10(a)(1)(A) and 10(a)(1)(B) of silviculture, grazing, mining, road of the types of activities that might or the ESA provide NMFS with authority construction, dam construction and might not be considered by NMFS as to grant exceptions to the ESA’s ‘‘take’’ operation, discharge of fill material, constituting a take of fish in the Oregon prohibitions. Section 10(a)(1)(A) stream channelization or diversion for Coast coho ESU under the ESA and its scientific research and enhancement which section 7 consultation has been regulations. Questions regarding permits may be issued to entities completed, and when activities are whether specific activities would (Federal and non-Federal) conducting conducted in accordance with any terms constitute a violation of the section 9 research that involves a directed take of and conditions provided by NMFS in an take and other prohibitions, and general listed species. A directed take refers to incidental take statement accompanying inquiries regarding prohibitions and the intentional take of listed species. We a biological opinion. permits, should be directed to NMFS have issued section 10(a)(1)(A) research/ There are many activities that we (see ADDRESSES). believe could potentially take salmon by enhancement permits for currently Designating Critical Habitat listed ESUs for a number of activities, harming them. ‘‘Harm’’ is defined by including trapping and tagging, our regulations as ‘‘an act which Methods and Criteria Used to Designate electroshocking to determine population actually kills or injures fish or wildlife. Critical Habitat presence and abundance, removal of Such an act may include significant The following paragraphs and fish from irrigation ditches, and habitat modification or degradation sections describe the relevant collection of adult fish for artificial which actually kills or injures fish or definitions and guidance found in the propagation programs. Section wildlife by significantly impairing ESA and our implementing regulations, 10(a)(1)(B) incidental take permits may essential behavioral patterns, including, and the key methods and criteria we be issued to non-Federal entities breeding, spawning, rearing, migrating, used to designate critical habitat after performing activities which may feeding or sheltering’’ (50 CFR 222.102 incorporating, as appropriate, comments incidentally take listed species. The (harm)). Activities that may harm the and information received on the types of activities potentially requiring Oregon Coast coho ESU resulting in a proposed rule. a section 10(a)(1)(B) incidental take violation of the section 9 take and other Section 4 of the ESA (16 U.S.C. permit include the operation and release prohibitions, include, but are not 1533(b)(2) and our regulations at 50 CFR of artificially propagated fish by state or limited to: 424.12(a) require that we designate 1. Land-use activities that degrade privately operated and funded critical habitat, and make revisions habitats for the Oregon Coast coho ESU hatcheries, state or academic research thereto, ‘‘on the basis of the best (e.g., logging, grazing, farming, urban that may incidentally take listed scientific data available.’’ Section 3 of development, road construction in species, the implementation of state the ESA (16 U.S.C. 1532(5)) defines riparian areas and areas susceptible to fishing regulations, logging, road critical habitat as ‘‘(i) the specific areas mass wasting and surface erosion); building, grazing, and diverting water within the geographical area occupied into private lands. 2. Destruction/alteration of the habitats for the Oregon Coast coho ESU, by the species, at the time it is listed Identification of Those Activities That such as removal of large woody debris * * * on which are found those Would Constitute a Violation of Section and ‘‘sinker logs’’ or riparian shade physical or biological features (I) 9 of the ESA canopy, dredging, discharge of fill essential to the conservation of the material, draining, ditching, diverting, species and (II) which may require NMFS and the FWS published in the special management considerations or Federal Register on July 1, 1994 (59 FR blocking, gravel mining, or altering stream channels or surface or ground protection; and (ii) specific areas 34272), a policy that NMFS shall outside the geographical area occupied identify, to the maximum extent water flow; 3. Discharges or dumping of toxic by the species at the time it is listed practicable at the time a species is chemicals or other pollutants (e.g., upon a determination by the Secretary listed, those activities that would or sewage, oil, gasoline) into waters or that such areas are essential for the would not constitute a violation of riparian areas supporting the Oregon conservation of the species.’’ Section 3 section 9 of the ESA. The intent of this Coast coho ESU; of the ESA (16 U.S.C. 1532(3)) also policy is to increase public awareness of 4. Violation of discharge permits; defines the terms ‘‘conserve,’’ the effect of this listing on proposed and 5. Application of pesticides affecting ‘‘conserving,’’ and ‘‘conservation’’ to ongoing activities within the species’ water quality or riparian areas for the mean ‘‘to use, and the use of, all range. At the time of the final rule, we Oregon Coast coho ESU; methods and procedures which are must identify to the extent known 6. Interstate and foreign commerce of necessary to bring any endangered specific activities that will not be fish from the Oregon Coast coho ESU species or threatened species to the considered likely to result in violation and import/export of fish from the point at which the measures provided of section 9, as well as activities that Oregon Coast coho ESU without a pursuant to this chapter are no longer will be considered likely to result in threatened or endangered species necessary.’’ violation. We believe that, based on the permit; Pursuant to our regulations, when best available information, the following 7. Collecting or handling of fish from identifying physical or biological actions will not result in a violation of the Oregon Coast coho ESU. Permits to features essential to conservation, we section 9: conduct these activities are available for consider the following requirements of 1. Possession of fish from the Oregon purposes of scientific research or to the species: (1) Space for individual and Coast coho ESU that are acquired enhance the conservation or survival of population growth, and for normal lawfully by permit issued by NMFS the species; and behavior; (2) food, water, air, light, pursuant to section 10 of the ESA, or by 8. Introduction of non-native species minerals, or other nutritional or the terms of an incidental take statement likely to prey on fish from the Oregon physiological requirements; (3) cover or issued pursuant to section 7 of the ESA; Coast coho ESU or displace them from shelter; (4) sites for breeding, or their habitat. reproduction, or rearing of offspring;

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and, generally, (5) habitats that are is not likely to result in the destruction and ‘‘particular areas’’ (ESA section protected from disturbance or are or adverse modification of critical 4(b)(2)) at a finer scale than in 2000. representative of the historical habitat. Since 2000, various Federal agencies geographical and ecological have mapped fifth field hydrologic units Identifying the Geographical Area distributions of the species (see 50 CFR (referred to as ‘‘HUC5s’’ or Occupied by the Species and Specific 424.12(b)). In addition to these factors, ‘‘watersheds’’) throughout the Pacific Areas Within the Geographical Area we also focus on the more specific Northwest using USGS mapping primary constituent elements (PCEs) In past critical habitat designations, conventions (Seaber et al., 1986). This within the occupied areas that are we had concluded that the limited information is now generally available essential to the conservation of the availability of species distribution data via the internet (NMFS, 2007b), and we species. The regulations identify PCEs prevented mapping salmonid critical have expanded our GIS resources to use as including, but not limited to: ‘‘roost habitat at a scale finer than occupied these data. As in the 2000 designations sites, nesting grounds, spawning sites, river basins (65 FR 7764; February 16, (in which we used larger fourth field feeding sites, seasonal wetland or 2000). Therefore, the 2000 designations hydrologic units), we used the HUC5s to dryland, water quality or quantity, host defined the ‘‘geographical area occupied organize critical habitat information species or plant pollinator, geological by the species, at the time of listing’’ as systematically and at a scale that is formation, vegetation type, tide, and all accessible river reaches within the applicable to the spatial distribution of specific soil types.’’ For an area current range of the listed species. salmon. Organizing information at this containing PCEs to meet the definition In the 2004 proposed rule to designate scale is especially relevant to salmonids, of critical habitat, we must conclude critical habitat for 13 ESUs of Pacific since their innate homing ability allows that the PCEs in that area ‘‘may require salmon and steelhead (69 FR 74572; them to return to the watersheds where special management considerations or December 14, 2004) we described in they were born. Such site fidelity results protection.’’ Our regulations define greater detail that, since the previous in spatial aggregations of salmonid special management considerations or designations in 2000, we can now be populations that generally correspond to protection as ‘‘any methods or more precise about the ‘‘geographical the area encompassed by subbasins or procedures useful in protecting physical area occupied by the species’’ because HUC5 watersheds (Washington and biological features of the Federal, state, and tribal fishery Department of Fisheries et al., 1992; environment for the conservation of biologists have made progress Kostow, 1995; McElhany et al., 2000). listed species.’’ Both the ESA and our documenting and mapping actual As noted above regarding our use of regulations, in recognition of the species distribution at the level of finer scale data, none of the comments divergent biological needs of species, stream reaches. Moreover, much of the received provided us with a specific establish criteria that are species available data can now be accessed and alternative methodology that would specific rather than a ‘‘one size fits all’’ analyzed using Geographic Information yield a better approach than the approach. System (GIS) software to produce watershed-scale approach we adopted. Our regulations state that, ‘‘[t]he consistent and fine-scale maps (NMFS, The USGS maps watershed units as Secretary shall designate as critical 2007b; StreamNet, 2005). The current polygons, bounding a drainage area habitat areas outside the geographic area maps document fish presence by from ridge-top to ridge-top, presently occupied by the species only identifying occupied stream reaches encompassing streams, riparian areas when a designation limited to its where the species has been observed. It and uplands. Within the boundaries of present range would be inadequate to also identifies stream reaches where the any watershed, there are stream reaches ensure the conservation of the species’ species is presumed to occur based on not occupied by the species. Land areas (50 CFR 424.12(e)). Accordingly, when the professional judgment of biologists within the HUC5 boundaries are also the best available scientific data do not familiar with the watershed (although in generally not ‘‘occupied’’ by the species demonstrate that the conservation needs some cases there are streams classified (though certain areas such as flood of the species so require, we will not as occupied based on professional plains or side channels may be occupied designate critical habitat in areas judgment when in fact the species has at some times of some years). We used outside the geographic area occupied by been observed but the GIS data have not the watershed boundaries as a basis for the species. been updated). We made use of these aggregating occupied stream reaches, for Section 4 of the ESA (16 U.S.C. finer-scale data for the final critical purposes of delineating ‘‘specific’’ areas 1533(b)(2)) requires that, before habitat designations for 12 Pacific at a scale that often corresponds well to designating critical habitat, we consider Northwest ESUs (70 FR 52630; salmonid population structure and the economic impacts, impacts on September 2, 2005), as well as for the ecological processes. Although we are national security, and other relevant current critical habitat designation. We designating only the streams and not the impacts of specifying any particular area believe that this approach enables a entire watershed, our documents as critical habitat, and the Secretary may more accurate delineation of the frequently refer to the ‘‘specific areas’’ exclude any area from critical habitat if ‘‘geographical area occupied by the as ‘‘watersheds’’ because that is the term the benefits of exclusion outweigh the species’’ referred to in the ESA often used as a convenient shorthand. benefits of designation, unless definition of critical habitat. We We also refer to the stream reaches as excluding an area from critical habitat received some comments on this ‘‘habitat areas.’’ Each watershed was will result in the extinction of the approach, some in support and some reviewed by the CHART to verify species. This exercise of discretion must against it (see comments in final critical occupation, PCEs, and special be based upon the best scientific and habitat designations for 12 Pacific management considerations (see commercial data. Once critical habitat Northwest ESUs, 70 FR 52630, ‘‘Critical Habitat Analytical Review for a salmon or steelhead ESU is September 2, 2005). However, none of Team’’ section below). designated, section 7(a)(2) of the ESA the latter comments described a specific The watershed-scale aggregation of requires that each Federal agency, in methodology that would yield a better stream reaches also allowed us to consultation with and with the approach than what we used. analyze the impacts of designating a assistance of NMFS, ensure that any We are now also able to identify ‘‘particular area,’’ as required by ESA action they authorize, fund, or carry out ‘‘specific areas’’ (ESA section 3(5)(a)) section 4(b)(2). As a result of watershed

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processes, many activities occurring in such as the designation of Essential Fish of PCEs was a decision matrix we riparian or upland areas and in non- Habitat under the Magnuson-Stevens developed for use in ESA section 7 fish-bearing streams may affect the Fishery Conservation and Management consultations (NMFS, 1996b) which physical or biological features essential Act. We believe that forage species are describes general parameters and to conservation in the occupied stream a feature in the Pacific Ocean that are characteristics of most of the essential reaches. The watershed boundary thus essential for salmon conservation and features under consideration in this describes an area in which Federal that may require special management critical habitat designation. We activities have the potential to affect considerations or protection, at least for identified these PCEs and requested critical habitat (Spence et al., 1996). those forage species that are a target of comment on them in the advance notice Using watershed boundaries for the human harvest. However, because of proposed rulemaking (ANPR)(68 FR economic analysis ensured that all salmonids are opportunistic feeders we 55931; September 29, 2003) and potential economic impacts were could not identify ‘‘specific areas’’ proposed rule (69 FR 74636; December considered. Section 3(5) defines critical beyond the nearshore marine zone 14, 2005) but did not receive habitat in terms of ‘‘specific areas,’’ and where these or other essential features information to support changing them. section 4(b)(2) requires the agency to are found within this vast geographic These PCEs include sites essential to consider certain factors before area occupied by salmon and steelhead. support one or more life stages of the designating ‘‘particular areas.’’ In the In contrast to estuarine and nearshore ESU (sites for spawning, rearing, case of West Coast salmon and areas, we conclude that it is not possible migration and foraging). These sites in steelhead, the biology of the species, the to identify ‘‘specific areas’’ in the Pacific turn contain physical or biological characteristics of their habitat, the Ocean that contain essential features for features essential to the conservation of nature of the impacts, and the limited salmonids, and, therefore, we are not the ESU (for example, spawning gravels, information currently available at finer designating critical habitat in offshore water quality and quantity, side geographic scales made it appropriate to marine areas. We requested comment on channels, forage species). The specific consider ‘‘specific areas’’ and this issue in our proposed rule but did PCEs include: ‘‘particular areas’’ as the same unit for not receive comments or information 1. Freshwater spawning sites with purposes of economic exclusions. that would change our conclusion (70 water quantity and quality conditions Occupied estuarine and marine areas FR 52630, September 2, 2005). and substrate supporting spawning, were also considered in the context of Primary Constituent Elements incubation, and larval development. defining ‘‘specific areas.’’ In our These features are essential to In determining what areas are critical proposed rule (69 FR 74572; December conservation because without them the habitat, agency regulations at 50 CFR 14, 2004) we noted that estuarine areas species cannot successfully spawn and 424.12(b) require that we ‘‘consider are crucial for juvenile salmonids, given produce offspring. their multiple functions as areas for those physical or biological features that 2. Freshwater rearing sites with water rearing/feeding, freshwater-saltwater are essential to the conservation of a quantity and floodplain connectivity to acclimation, and migration (Simenstad given species * * *, including space for et al., 1982; Marriott et al., 2002). individual and population growth and form and maintain physical habitat Within the geographic range of the for normal behavior; food, water, air, conditions and support juvenile growth Oregon Coast coho ESU all estuaries fall light, minerals, or other nutritional or and mobility; water quality and forage within the boundaries of a HUC5 and so physiological requirements; cover or supporting juvenile development; and were assessed along with upstream shelter; sites for breeding, reproduction, natural cover such as shade, submerged freshwater habitats within the and rearing of offspring; and habitats and overhanging large wood, log jams watershed. In all occupied estuarine that are protected from disturbance or and beaver dams, aquatic vegetation, areas we were able to identify physical are representative of the historical large rocks and boulders, side channels, or biological features essential to the geographical and ecological distribution and undercut banks. These features are conservation of the species, and that of a species.’’ The regulations further essential to conservation because may require special management direct us to ‘‘focus on the principal without them juveniles cannot access considerations or protection. For those biological or physical constituent and use the areas needed to forage, estuarine areas designated as critical elements * * * that are essential to the grow, and develop behaviors (e.g., habitat we are again delineating them in conservation of the species,’’ and predator avoidance, competition) that similar terms to our past designations, specify that the ‘‘known primary help ensure their survival. as being defined by a line connecting constituent elements shall be listed with 3. Freshwater migration corridors free the furthest land points at the estuary the critical habitat description.’’ The of obstruction with water quantity and mouth. regulations identify PCEs as including, quality conditions and natural cover In previous designations of salmonid but not limited to: ‘‘roost sites, nesting such as submerged and overhanging critical habitat we did not designate grounds, spawning sites, feeding sites, large wood, aquatic vegetation, large offshore marine areas (with the seasonal wetland or dryland, water rocks and boulders, side channels, and exception of deep waters in Puget quality or quantity, host species or plant undercut banks supporting juvenile and Sound (65 FR 7764, February 16, 2000; pollinator, geological formation, adult mobility and survival. These 70 FR 52630, September 2, 2005). In the vegetation type, tide, and specific soil features are essential to conservation Pacific Ocean, we concluded that there types.’’ because without them juveniles cannot may be essential habitat features, but we NMFS biologists developed a list of use the variety of habitats that allow could not identify any special PCEs that are essential to the species’ them to avoid high flows, avoid management considerations or conservation and based on the unique predators, successfully compete, begin protection associated with them as life history of salmon and steelhead and the behavioral and physiological required under section 3(5)(A)(I) of the their biological needs (Hart, 1973; changes needed for life in the ocean, ESA (65 FR 7776; February 16, 2000). Beauchamp et al., 1983; Laufle et al., and reach the ocean in a timely manner. Since that time we have carefully 1986; Pauley et al., 1986, 1988, and Similarly, these features are essential for considered the best available scientific 1989; Groot and Margolis, 1991; Spence adults because they allow fish in a non- information, and related agency actions, et al., 1996). Guiding the identification feeding condition to successfully swim

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upstream, avoid predators, and reach future (in which case any revision to management activity (Pacific Fishery spawning areas on limited energy stores. this designation would be subject to Management Council, 1999). 4. Estuarine areas free of obstruction separate rulemaking). with water quality, water quantity, and The occupied habitat areas designated Unoccupied Areas salinity conditions supporting juvenile in this final rule contain PCEs required ESA section 3(5)(A)(ii) defines critical and adult physiological transitions to support the biological processes for habitat to include ‘‘specific areas between fresh- and saltwater; natural Oregon Coast coho using the habitat. outside the geographical area occupied’’ cover such as submerged and The CHART verified this for each if the areas are determined by the overhanging large wood, aquatic watershed/nearshore zone by relying on Secretary to be ‘‘essential for the vegetation, large rocks and boulders, the best available scientific data conservation of the species.’’ NMFS and side channels; and juvenile and (including species distribution maps, regulations at 50 CFR 424.12(e) adult forage, including aquatic watershed analyses, and habitat emphasize that we ‘‘shall designate as invertebrates and fishes, supporting surveys) during its review of occupied critical habitat areas outside the growth and maturation. These features areas and resultant assessment of area geographical area presently occupied by are essential to conservation because conservation values (NMFS, 2007b). The a species only when a designation without them juveniles cannot reach the contribution of the PCEs varies by site limited to its present range would be ocean in a timely manner and use the and biological function such that the inadequate to ensure the conservation of variety of habitats that allow them to quality of the elements may vary within the species.’’ For the Oregon Coast coho avoid predators, compete successfully, a range of acceptable conditions. The ESU we are not designating unoccupied and complete the behavioral and CHART took this variation into account areas at this time. The CHART did not physiological changes needed for life in when it assessed the conservation value identify any unoccupied areas that may the ocean. Similarly, these features are of an area. be essential for the conservation of the essential to the conservation of adults Oregon Coast coho ESU. Thus, we are Special Management Considerations or because they provide a final source of not designating any unoccupied areas at Protections abundant forage that will provide the this time. Any future designation of energy stores needed to make the An occupied area meets the definition unoccupied areas would be based on the physiological transition to fresh water, of critical habitat only if it contains required determination that such area is migrate upstream, avoid predators, and physical and biological features that essential for the conservation of the ESU develop to maturity upon reaching ‘‘may require special management and would be subject to separate spawning areas. considerations or protection.’’ Agency rulemaking with the opportunity for 5. Nearshore marine areas free of regulations at 50 CFR 424.02(j) define notice and comment. obstruction with water quality and ‘‘special management considerations or Lateral Extent of Critical Habitat quantity conditions and forage, protection’’ to mean ‘‘any methods or including aquatic invertebrates and procedures useful in protecting physical In past designations we have fishes, supporting growth and and biological features of the described the lateral extent of critical maturation; and natural cover such as environment for the conservation of habitat in various ways, ranging from submerged and overhanging large wood, listed species.’’ fixed distances to ‘‘functional’’ zones aquatic vegetation, large rocks and As part of the biological assessment defined by important riparian functions boulders, and side channels. As in the described below under ‘‘Critical Habitat (65 FR 7764; February 16, 2000). Both case with freshwater migration corridors Analytical Review Team,’’ a team of approaches presented difficulties, and and estuarine areas, nearshore marine biologists examined each habitat area to this was highlighted in several features are essential to conservation determine whether the physical or comments (most of which requested that because without them juveniles cannot biological features may require special we focus on aquatic areas only) received successfully transition from natal management consideration. These in response to the ANPR (68 FR 55926; streams to offshore marine areas. We determinations are identified for each September 29, 2003). Designating a set have focused our designation on area in the final CHART report for the riparian zone width will (in some nearshore areas in Puget Sound because Oregon Coast coho ESU (NMFS, 2007b). places) accurately reflect the distance of its unique and relatively sheltered Consistent with the final critical habitat from the stream on which PCEs might fjord-like setting (as opposed to the designations for 12 Pacific Northwest be found, but in other cases may over- more open coastlines of Washington and ESUs (70 FR 52630; September 2, 2005), or understate the distance. Designating Oregon). the CHART identified a variety of a functional buffer avoids that problem, 6. Offshore marine areas with water activities that threaten the physical and but makes it difficult for Federal quality conditions and forage, including biological features essential to listed agencies to know in advance what areas aquatic invertebrates and fishes, salmon and steelhead (see review by are critical habitat. To address these supporting growth and maturation. Spence et al., 1996), including: (1) issues we have defined the lateral extent These features are essential for Forestry; (2) grazing; (3) agriculture; (4) of designated critical habitat as the conservation because without them road building/maintenance; (5) channel width of the stream channel defined by juveniles cannot forage and grow to modifications/diking; (6) urbanization; the ordinary high-water line as defined adulthood. However, for the reasons (7) sand and gravel mining; (8) mineral by the USACE in 33 CFR 329.11. This stated previously in this document, it is mining; (9) dams; (10) irrigation approach is consistent with the specific difficult to identify specific areas impoundments and withdrawals; (11) mapping requirements described in containing this PCE as well as human river, estuary, and ocean traffic; (12) agency regulations at 50 CFR 424.12(c)). activities that may affect the PCE wetland loss/removal; (13) beaver In areas for which ordinary high-water condition in those areas. Therefore, we removal; and (14) exotic/invasive has not been defined pursuant to 33 have not designated any specific areas species introductions. In addition to CFR 329.11, the width of the stream based on this PCE but instead have these, the harvest of salmonid prey channel shall be defined by its bankfull identified it because it is essential to the species (e.g., forage fishes such as elevation. Bankfull elevation is the level species’ conservation, and specific herring, anchovy, and sardines) may at which water begins to leave the offshore areas may be identified in the present another potential habitat-related channel and move into the floodplain

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(Rosgen, 1996) and is reached at a public comments and any new likelihood of a consultation occurring discharge which generally has a information regarding the ESU and its and the improvements in species’ recurrence interval of 1 to 2 years on the habitat. Its work and determinations are conservation that may result from annual flood series (Leopold et al., documented in a final CHART report changes to proposed Federal actions. To 1992). Such an interval is (NMFS, 2007b). address this concern, we asked the commensurate with the juvenile The CHART examined each habitat CHART to develop a profile for a ‘‘low freshwater life phases of coho salmon. area within a watershed to determine leverage’’ watershed—that is, a Therefore, it is reasonable to conclude whether the stream reaches or lakes watershed where it was unlikely there that for an occupied stream reach this occupied by the Oregon Coast coho would be a section 7 consultation, or lateral extent is regularly ‘‘occupied.’’ contain the physical or biological where a section 7 consultation, if it did Moreover, the bankfull elevation can be features essential to conservation. As occur, would yield few conservation readily discerned for a variety of stream noted previously, the CHART also relied benefits. For watersheds not meeting the reaches and stream types using on its experience conducting ESA ‘‘low leverage’’ profile, we considered recognizable water lines (e.g., marks on section 7 consultations and existing their conservation rating to be a fair rocks) or vegetation boundaries (Rosgen, management plans and protective assessment of the benefit of designation. 1996). measures to determine whether these For watersheds meeting the ‘‘low As underscored in previous critical features may require special leverage’’ profile, we considered the habitat designations, the quality of management considerations or benefit of designation to be an aquatic habitat within stream channels protection. In addition to occupied increment lower than the conservation is intrinsically related to the adjacent areas, the definition of critical habitat rating. For example, a watershed with a riparian zones and floodplain, to also includes unoccupied areas if we ‘‘high’’ conservation value but ‘‘low surrounding wetlands and uplands, and determine the area is essential for leverage’’ was considered to have a to non-fish-bearing streams above conservation. Accordingly, the CHART ‘‘medium’’ benefit of designation, and occupied stream reaches. Human was next asked whether there were any so forth (NMFS, 2007b). activities that occur outside the stream unoccupied areas within the historical As discussed earlier, the scale chosen can modify or destroy physical and range of the ESU that may be essential for the ‘‘specific area’’ referred to in biological features of the stream. In for conservation. The CHART did not section 3(5)(a) was a watershed, as addition, human activities that occur identify any such unoccupied areas. delineated by USGS methodology. within and adjacent to reaches upstream The CHART was next asked to There were some complications with (e.g., road failures) or downstream (e.g., determine the relative conservation this delineation that required us to culverts and dams) of designated stream value of each area for each ESU. The adapt the CHARTs’ approach for some reaches can also have demonstrable CHART scored each habitat area based areas. In particular, a large stream or effects on physical and biological on several factors related to the quantity river might serve as a rearing and features of designated reaches. and quality of the physical and migration corridor to and from many In the relatively few cases where we biological features. It next considered watersheds, yet be embedded itself in a are designating lake habitats (e.g., each area in relation to other areas and watershed. In any given watershed Devils, Siltcoos, Tahkenitch, Sand, and with respect to the population through which it passes, the stream may Tenmile lakes), we believe that the occupying that area. Based on a have a few or several tributaries. For lateral extent may best be defined as the consideration of the raw scores for each rearing/migration corridors embedded perimeter of the water body as area, and a consideration of that area’s in a watershed, the CHART was asked displayed on standard 1:24,000 scale contribution in relation to other areas to rate the conservation value of the topographic maps or the elevation of and in relation to the overall population watershed based on the tributary ordinary high water, whichever is structure of the ESU, the CHART rated habitat. We assigned the rearing/ greater. In estuarine areas we believe each habitat area as having a ‘‘high,’’ migration corridor the rating of the that extreme high water is the best ‘‘medium,’’ or ‘‘low’’ conservation highest-rated watershed for which it descriptor of lateral extent. As noted value. The preliminary CHART ratings served as a rearing/migration corridor. above for stream habitat areas, human were reviewed by several state and The reason for this treatment of activities that occur outside the area tribal comanagers in advance of the migration corridors is the role they play inundated by extreme or ordinary high proposed rule, and the CHART made in the salmon’s life cycle. Salmon are water can modify or destroy physical needed changes prior to that rule. State anadromous—born in fresh water, and biological features of the estuarine and tribal comanagers also evaluated migrating to salt water to feed and grow, habitat areas, and Federal agencies must our proposed rule (69 FR 74572; and returning to fresh water to spawn. be aware of these important habitat December 14, 2004) and provided Without a rearing/migration corridor to linkages as well. comments and new information which and from the sea, salmon cannot were also reviewed and incorporated as complete their life cycle. It would be Critical Habitat Analytical Review Team needed by the CHART in the illogical to consider a spawning and To assist in the designation of critical preparation of this final designation. rearing area as having a particular habitat, we convened a CHART for the The rating of habitat areas as having conservation value and not consider the Oregon Coast domain. The CHART a high, medium, or low conservation associated rearing/migration corridor as consisted of eight Federal biologists and value provided information useful to having a similar conservation value. habitat specialists from NMFS, USFS, inform the Secretary’s exercise of and BLM, with demonstrated expertise discretion in determining whether the Application of ESA Section 4(b)(2) (16 regarding salmonid habitat and related benefits of exclusion outweigh the U.S.C. 1533(b)(2)) protective efforts within the domain. benefits of designation (i.e., ESA section The foregoing discussion describes The CHART was tasked with assessing 4(b)(2)). The higher the conservation those areas that are eligible for biological information pertaining to value for an area, the greater the likely designation as critical habitat—the areas under consideration for benefit of the ESA section 7 protections. specific areas that fall within the ESA designation as critical habitat. The We recognized that the ‘‘benefit of section 3(5)(A) definition of critical CHART also reconvened to review the designation’’ would also depend on the habitat. However, specific areas eligible

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for designation are not automatically habitat we first examined our potential conservation value of an area designated as critical habitat. Section voluminous section 7 consultation and thereby focus and contribute to 4(b)(2) of the ESA requires the Secretary record for Oregon Coast coho as well as conservation efforts by clearly to first consider the economic impact, other ESUs of salmon and steelhead. delineating areas of high conservation impact on national security, and any (For thoroughness, we examined the value for certain species. It is unknown other relevant impact of designation. consultation record for other ESUs to to what extent this process actually The Secretary has the discretion to see if it provided information relevant to occurs for Oregon Coast coho, and what exclude an area from designation if he Oregon Coast coho.) That record the actual benefit is to Oregon Coast determines the benefits of exclusion includes consultations on habitat- coho, as there are also concerns, noted (that is, avoiding the impact that would modifying Federal actions both where above, that a critical habitat designation result from designation) outweigh the critical habitat has been designated and may discourage such conservation benefits of designation based upon best where it has not. We could not discern efforts. scientific and commercial data. The a distinction between the impacts of The balancing test in ESA section Secretary may not exclude an area from applying the jeopardy provision versus 4(b)(2) contemplates weighing benefits designation if exclusion will result in the adverse modification provision in that are not directly comparable—the the extinction of the species. Because occupied critical habitat. Given our benefit associated with species the authority to exclude is discretionary, inability to detect a measurable conservation balanced against the exclusion is not required for any areas. difference between the impacts of economic benefit, benefit to national In this rulemaking, the Secretary has applying these two provisions, the only security, or other relevant benefit that applied his statutory discretion to reasonable alternative seemed to be to results if an area is excluded from exclude areas from critical habitat for follow the recommendation of the Tenth designation. Section 4(b)(2) does not several different reasons (NMFS, Circuit, approved by the NAHB court— specify a method for the weighing 2007d). to measure the coextensive impacts; that process. Agencies are frequently In this exercise of discretion, the first is, measure the entire impact of required to balance benefits of issue we must address is the scope of applying the adverse modification regulations against impacts; Executive impacts relevant to the ESA section provision of section 7, regardless of Order (E.O.) 12866 established this 4(b)(2) evaluation. We proposed new whether the jeopardy provision alone requirement for Federal agency critical habitat designations for 13 would result in the identical impact. regulations. Ideally such a balancing Pacific Northwest ESUs, including the The Tenth Circuit’s opinion only would involve first translating the Oregon Coast coho ESU (69 FR 74572; addressed ESA section 4(b)(2)’s benefits and impacts into a common December 14, 2004), because the requirement that economic impacts be metric. Executive branch guidance from previous designations were vacated considered. The court did not address the OMB suggests that benefits should following a Court ruling that we had how ‘‘other relevant impacts’’ were to be first be monetized (i.e., converted into inadequately considered the economic considered, nor did it address the dollars). Benefits that cannot be impacts of designating critical habitat. benefits of designation. Because section monetized should be quantified (for (National Association of Homebuilders 4(b)(2) requires a consideration of other example, numbers of fish saved). Where v. Evans, 2002 WL 1205743 No. 00–CV– relevant impacts of designation, and the benefits can neither be monetized nor 2799 (D.D.C.) (NAHB)). The NAHB court benefits of designation, and because our quantified, agencies are to describe the had agreed with the reasoning of the record did not support a distinction expected benefits (OMB, 2003). Court of Appeals for the Tenth Circuit between impacts resulting from It may be possible to monetize in New Mexico Cattle Growers application of the adverse modification benefits of critical habitat designation Association v. U.S. Fish and Wildlife provision versus the jeopardy provision, for a threatened or endangered species Service, 248 F.3d 1277 (10th Cir. 2001). we are uniformly considering in terms of willingness-to-pay (OMB, In that decision, the Tenth Circuit stated coextensive impacts and coextensive 2003). However, we are not aware of any ‘‘[t]he statutory language is plain in benefits, without attempting to available data that would support such requiring some kind of consideration of distinguish the benefit of a critical an analysis for salmon. In addition, ESA economic impact in the critical habitat habitat consultation from the benefit section 4(b)(2) requires analysis of designation phase.’’ The court that would otherwise result from a impacts other than economic impacts concluded that, given the FWS’ failure jeopardy consultation that would occur that are equally difficult to monetize, to distinguish between ‘‘adverse even if critical habitat were not such as benefits to national security of modification’’ and ‘‘jeopardy’’ in its designated. To do otherwise would excluding areas from critical habitat. In 4(b)(2) analysis, the FWS must analyze distort the balancing test contemplated the case of salmon designations, impacts the full impacts of critical habitat by section 4(b)(2). to Northwest tribes are an ‘‘other designation, regardless of whether those The principal benefit of designating relevant impact’’ that also may be impacts are coextensive with other critical habitat is that Federal activities difficult to monetize. impacts (such as the impact of the that may affect such habitat are subject An alternative approach, approved by jeopardy requirement). to consultation pursuant to section 7 of OMB (OMB, 2003), is to conduct a cost- In redesignating critical habitat for the the ESA. Such consultation requires effectiveness analysis. A cost- 13 Pacific Northwest ESUs, we followed every Federal agency to ensure that any effectiveness analysis ideally first the Tenth Circuit Court’s directive action it authorizes, funds or carries out involves quantifying benefits, for regarding the statutory requirement to is not likely to result in the destruction example, percent reduction in consider the economic impact of or adverse modification of critical extinction risk, percent increase in designation. Areas designated as critical habitat. This complements the section 7 productivity, or increase in numbers of habitat are subject to ESA section 7 provision that Federal agencies ensure fish. Given the state of the science, it requirements, which provide that that their actions are not likely to would be difficult to quantify reliably Federal agencies ensure that their jeopardize the continued existence of a the benefits of including particular areas actions are not likely to destroy or listed species. Another benefit is that in the critical habitat designation. adversely modify critical habitat. To the designation of critical habitat can Although it is difficult to monetize or evaluate the economic impact of critical serve to educate the public regarding the quantify benefits of critical habitat

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designation, it is possible to tribal governments is defined by United States for any Indian Tribe or differentiate among habitat areas based treaties, statutes, executive orders, individual subject to restrictions by the on their relative contribution to judicial decisions, and agreements, United States against alienation; (3) fee conservation. For example, habitat areas which differentiate tribal governments lands, either within or outside the can be rated as having a high, medium, from the other entities that deal with, or reservation boundaries, owned by the or low conservation value. The are affected by, the Federal Government. tribal government; and (4) fee lands qualitative ordinal evaluations can then This relationship has given rise to a within the reservation boundaries be combined with estimates of the special Federal trust responsibility owned by individual Indians. We have economic costs of critical habitat involving the legal responsibilities and determined that these exclusions, designation in a framework that obligations of the United States toward together with the other exclusions arguably moves the designation to a Indian Tribes and the application of described in this rule, will not result in more efficient outcome. Individual fiduciary standards of due care with extinction of the species (NMFS, habitat areas are assessed using both respect to Indian lands, tribal trust 2007d). their biological evaluation and resources, and the exercise of tribal Exclusions Based on Economic Impacts economic cost, so that areas with high rights. Pursuant to these authorities, conservation value and lower economic Indian lands are recognized as unique Our assessment of economic impact cost might be considered to have a and have been retained by Indian Tribes generated considerable interest from higher priority for designation, while or have been set aside for tribal use. commenters on the ANPR (68 FR 55926; areas with a low conservation value and These lands are managed by Indian September 29, 2003) and the proposed higher economic cost might have a Tribes in accordance with tribal goals rule (69 FR 74572; December 14, 2004). higher priority for exclusion. While this and objectives within the framework of Based on new information and approach can provide useful applicable treaties and laws. comments received on the proposed information to the decision-maker, there In addition to the distinctive trust rule we have updated our estimates of is no rigid formula through which this relationship, for salmon and steelhead economic impacts of designating each of information translates into exclusion in the Northwest, there is a unique the particular areas found to meet the decisions. Every geographical area partnership between the Federal definition of critical habitat (NMFS, containing habitat eligible for Government and Indian tribes regarding 2007d). This report is available from designation is different, with a unique salmon management. Two of the four NMFS (see ADDRESSES). set of ‘‘relevant impacts’’ that may be tribes with land in Oregon coast coho The first step in the overall economic considered in the exclusion process. critical habitat are active participants in analysis was to identify existing legal Regardless of the analytical approach, local watershed restoration and and regulatory constraints on economic ESA section 4(b)(2) makes clear that management aimed at coho activity that are independent of critical what weight the agency gives various conservation (NMFS, 2007f). habitat designation, such as Clean Water impacts and benefits, and whether the The benefits of excluding Indian Act (CWA) requirements. Coextensive agency excludes areas from the lands from designation include: (1) The impacts of the ESA section 7 designation, is discretionary. furtherance of established national requirement to avoid jeopardy were not policies, our Federal trust obligations, considered part of the baseline. Exclusions Based on Impacts to Tribes and our deference to the tribes in Next, from the consultation record, A broad array of activities on Indian management of natural resources on we identified Federal activities that lands may trigger section 7 consultation their lands; (2) the maintenance of might affect habitat and that might under the ESA. For this analysis, we effective long-term working result in an ESA section 7 consultation. considered what those activities may be relationships to promote the (We did not consider Federal actions, and what the likely effect would be on conservation of Oregon coast coho; and such as the approval of a fishery, that conservation of the Oregon Coast coho (3) continued respect for tribal might affect the species directly but not ESU if the activities were not subject to sovereignty over management of natural affect its habitat.) We identified ten section 7 consultation. (We realize that resources on Indian lands through types of activities including: the activities in question would still be established tribal natural resource Hydropower dams; non-hydropower subject to section 7 consultation and to programs. Regarding benefits of dams and other water supply structures; the requirement that Federal agencies designation, many actions on Indian Federal lands management, including not jeopardize species’ continued lands involve the Bureau of Indian grazing (considered separately); existence. However, as described above, Affairs (BIA), triggering a section 7 transportation projects; utility line because we cannot discern a difference consultation. This means the benefit of projects; instream activities, including in the application of the jeopardy and designating Indian land is potentially dredging (considered separately); adverse modification requirements in high. However, coho habitat on Indian activities permitted under the our consultations for Oregon coast coho, lands represents a tiny proportion of Environmental Protection Agency’s we are considering coextensive impacts overall habitat—2.7 stream miles (4.35 (EPA’s) National Pollution Discharge and coextensive benefits.) To determine km) out of a total of 6,652. Accordingly, Elimination System; sand and gravel the benefit of designation, we we find the benefits of promoting tribal mining; residential and commercial considered the number of stream miles sovereignty and the trust responsibility development; and agricultural pesticide within Indian lands, whether those outweigh the benefits of applying ESA applications. Based on our consultation stream miles were located in high, section 7 to Federal activities on these record and other available information, medium, or low conservation value 2.7 miles (4.35 km) of coho habitat we determined the modifications each areas, and the number of expected (NMFS, 2007f). type of activity was likely to undergo as section 7 consultations in those areas The Indian lands specifically a result of section 7 consultation (NMFS, 2007f). excluded from critical habitat are those (regardless of whether the modification There are several benefits to defined in the Secretarial Order, might be required by the jeopardy or the excluding Indian lands. The including: (1) Lands held in trust by the adverse modification provision). We longstanding and distinctive United States for the benefit of any developed an expected direct cost for relationship between the Federal and Indian tribe; (2) land held in trust by the each type of action and projected the

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likely occurrence of each type of project giving priority to excluding habitat areas economic analysis do not have obvious in each watershed, using existing spatial with a relatively lower benefit of break points that would lead to a logical databases (e.g., the USACE 404(d) designation and a relatively higher division between ‘‘high,’’ ‘‘medium,’’ permit database). Finally, we aggregated economic impact (NMFS, 2007d). and ‘‘low’’ costs. Given these factors, a the costs from the various types of The circumstances of the Oregon judgment that any particular dollar actions and estimated an annual impact, Coast coho ESU are well suited to this threshold is objectively ‘‘right,’’ would taking into account the probability of approach. Coho salmon is a wide- be neither necessary nor possible. consultation occurring and the likely ranging species that occupies numerous Rather, what economic impact is rate of occurrence of that project type. habitat areas with thousands of stream ‘‘high,’’ and therefore might outweigh This analysis allowed us to estimate miles. Not all occupied areas, however, the benefit of designating a medium or the coextensive economic impact of are of equal importance to conserving low conservation value habitat area, is designating each ‘‘particular area’’ (that the ESU. Within the currently occupied a matter of agency discretion and policy. is, each habitat area, or aggregated range there are areas that support highly In the second step of the process, we occupied stream reaches in a productive populations, areas that asked the CHART whether any of the watershed). Expected annual economic support less productive populations, habitat areas eligible for exclusion make impacts in the Oregon Coast coho ESU and areas that support production in an important contribution to ranged from zero to $869,861 per habitat only some years. Some populations conservation. The CHART considered area, with a median of $222,419. Where within the ESU may be more important this question in the context of all of the a watershed included both tributaries to long-term conservation of the ESU areas eligible for exclusion as well as and a migration corridor that served than other populations. Therefore, in the information they had developed in other watersheds, we estimated the many cases it may be possible to providing the initial conservation separate impacts of designating the construct different scenarios for ratings. The following section describes tributaries and the migration corridor. achieving conservation. Different the results of applying the two-step We did this by identifying those scenarios might have more or less process to the Oregon Coast coho ESU. categories of activities most likely to certainty of achieving conservation, and The results are discussed in greater affect tributaries and those most likely more or less economic impact. detail in a separate report that is to affect larger migration corridors. Our first step in constructing an available for public review and Because of the methods we selected exclusion scenario was to identify all comment (NMFS, 2007d). We have and the data limitations, portions of our areas we would consider for an determined that the exclusions, together analysis both under- and over-estimate economic exclusion, based on dollar with the other exclusions described in the coextensive economic impact of thresholds. The next step was to this rule (i.e., Indian lands), will not ESA section 7 requirements. For examine whether any of the areas result in extinction of the species example, we lacked complete data on eligible for exclusion make an important (NMFS, 2007d). the likely impact on flows at non- contribution to conservation, in the Federal hydropower projects, which context of the areas that remained (that Summary of Changes From the would increase economic impacts. Also, is, those areas not identified as eligible Proposed Critical Habitat Designation we did not have information about for exclusion). We did not consider We evaluated the comments and new potential changes in irrigation flows habitat areas for exclusion if they had a information received on the proposed associated with section 7 consultation. high conservation value rating. Based on rule to ensure that they represented the These impacts would increase the the rating process used by the CHART best scientific data available and made estimate of coextensive costs. On the we judged that all of the high value a number of general types of changes to other hand, we estimated an impact on areas make an important contribution to the critical habitat designations, all activities occurring within the conservation. including: geographic boundaries of a watershed, In developing criteria for the first (1) We revised habitat maps and even though in some cases activities step, we chose dollar thresholds that we related biological assessments based on would be far removed from occupied anticipated would lead most directly to a final CHART assessment (NMFS, stream reaches and so might not require a more cost-effective scenario. We 2007b) of information provided by modification (or even consultation). In considered for exclusion low value commenters, peer reviewers, and agency addition, we were unable to document habitat areas with an economic impact biologists (including CHART members). significant costs of critical habitat greater than $91,556 and medium value We also evaluated watersheds to designation that occur outside the habitat areas with an economic impact determine how well the conservation section 7 consultation process, greater than $323,138. These criteria we value rating corresponded to the benefit including costs resulting from state or selected for identifying habitat areas as of designation, in particular the local regulatory burdens imposed on eligible for exclusion do not represent likelihood of an ESA section 7 developers and landowners as a result an objective determination that, for consultation occurring in that area and of a Federal critical habitat designation. example, a given low value area is whether the consultation would yield In determining whether the economic worth a certain dollar amount and no conservation benefits if it was likely to benefit of excluding a habitat area might more. The statute directs us to balance occur. outweigh the benefit of designation to dissimilar values under a statutorily- (2) We revised our economic analysis the species, we took into account many limited time frame. The statute based on information provided by data limitations, including those emphasizes the discretionary nature of commenters and peer reviewers as well described above. The ESA requires that the section 4(b)(2) balancing task. as our own efforts as referenced in the we make critical habitat designations Moreover, while our approach follows proposed rule and described in the final within a short time frame ‘‘with such the Tenth Circuit’s direction to consider economic analysis (NMFS, 2007c). data as may be available’’ at the time. coextensive economic impacts, we Major changes included assessing new Moreover, the approach we adopted nevertheless must acknowledge that not impacts associated with pesticide accommodated many of these data all of the costs will be avoided by consultations, revising Federal land limitations by considering the relative exclusion from designation. Finally, the management costs to take into account benefits of designation and exclusion, cost estimates developed by our wilderness areas, and modifying the

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analysis of Federal grazing land impacts confusion with the concept of ‘‘recovery independent populations. We made to more accurately reflect the likely units’’ as described in our section 7 several changes to the delineation of geographic extent of ESA section 7 handbook. occupied habitat areas based on implementation. We also documented The following section summarizes the comments and field surveys indicating the economic costs of changes in flow changes to the proposed critical habitat that our original coho distribution regimes for some hydropower projects. rule. These changes are also reflected in maps/data were in error. As a result of To account for inflationary changes in final agency reports pertaining to the revised economic data for this ESU and the economic impacts, we adjusted the biological, economic, and policy our final 4(b)(2) assessment, we are no assessments supporting these cost estimates based on changes in a longer excluding habitat areas in three producer price index over the period designations (NMFS, 2007b; NMFS, watersheds that were previously 2005 to 2007 (NMFS 2007c). 2007c; and NMFS, 2007d). We conclude proposed for designation. We have also (3) We conducted a new ESA section that these changes are warranted based 4(b)(2) analysis based on economic on new information and analyses that removed Josephine and Jackson impacts to take into account the above constitute the best scientific data counties from the relevant critical revisions. This resulted in the final available. habitat table in our regulations. These exclusion of many of the same counties overlap slightly with upland watersheds proposed for exclusion. It Description of Specific Changes areas in watersheds occupied by Oregon also resulted in some areas originally The CHART elevated the conservation Coast coho salmon, but they do not proposed for exclusion not being value rating for five watersheds within contain stream reaches designated as excluded. The analysis is described the Umpqua River basin. The changes critical habitat for this ESU. Table 1 further in the 4(b)(2) report (NMFS, were made as a result of recent summarizes the changes made for 2007d). population identification work (Lawson specific watersheds in the range of this (4) In the regulations, we’ve removed et al., 2007) that further subdivides this ESU. reference to ‘‘units’’ to avoid possible basin into four (versus two)

TABLE 1.—CHANGES TO CRITICAL HABITAT DESIGNATION FOR OREGON COAST COHO

Watershed Changes from Subbasin code Watershed name proposed rule

NEHALEM ...... 1710020206 Lower Nehalem River/Cook Added 1.3 miles (2.1 km) of occupied habitat areas. Creek. WILSON/TRASK/NESTUCCA 1710020302 Nestucca River ...... Added 4.2 miles (6.8 km) of occupied habitat areas and re- moved 3 miles (4.8 km) of unoccupied stream reaches. NORTH UMPQUA ...... 1710030106 Boulder Creek ...... No longer excluded from designation. NORTH UMPQUA ...... 1710030110 Rock Creek/North Umpqua Added 1.8 miles (2.9 km) of occupied habitat areas. River. SOUTH UMPQUA ...... 1710030202 Jackson Creek ...... Elevated HUC5 conservation value from Low to Medium. No longer excluded from designation. SOUTH UMPQUA ...... 1710030204 Elk Creek/South Umpqua ...... Elevated HUC5 conservation value from Low to Medium. No longer excluded from designation. SOUTH UMPQUA ...... 1710030205 South Umpqua River ...... Removed 2 miles (3.2 km) of unoccupied stream reaches. SOUTH UMPQUA ...... 1710030207 Middle Cow Creek ...... Elevated HUC5 conservation value from Medium to High. SOUTH UMPQUA ...... 1710030209 Lower Cow Creek ...... Removed 3 miles (4.8 km) of unoccupied stream reaches. SOUTH UMPQUA ...... 1710030211 Myrtle Creek ...... Elevated HUC5 conservation value from Medium to High. UMPQUA ...... 1710030301 Upper Umpqua River ...... Removed 2 miles (3.2 km) of unoccupied stream reaches. UMPQUA ...... 1710030303 Elk Creek ...... Removed 1 mile (1.6 km) of unoccupied stream reaches and elevated HUC5 conservation value from Medium to High. UMPQUA ...... 1710030304 Middle Umpqua River ...... Removed 1.5 mile (2.4 km) of unoccupied stream reaches. UMPQUA ...... 1710030305 Lake Creek ...... Removed 5.3 mile (8.5 km) of unoccupied stream reaches. COQUILLE ...... 1710030504 East Fork Coquille ...... Removed 1.5 mile (2.4 km) of unoccupied stream reaches.

Final Critical Habitat Designation within the geographical area presently domain, so the areas designated as We are designating approximately occupied by the Oregon Coast coho ESU critical habitat do not overlap with 6,568 stream miles (10,570 km) and 15 (see Table 2). The Oregon Coast coho critical habitat areas designated for square miles (38.8 sq km) of lake habitat ESU is the only listed species in this other listed ESUs.

TABLE 2.—APPROXIMATE QUANTITY OF HABITAT AND OWNERSHIP WITHIN WATERSHEDS CONTAINING HABITAT AREAS DESIGNATED AS CRITICAL HABITAT FOR THE EVOLUTIONARILY SIGNIFICANT UNIT OF OREGON COAST COHO SALMON (ONCORHYNCHUS KISUTCH)

Land ownership type Streams Lakes Nearshore (percent) mi sq mi marine (km) (sq km) mi (km) Federal Tribal State Private

6,568 (10,570) 15 (38.8) n/a 32.9 <0.1 9.1 58.0

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The areas designated, summarized range of this ESU. Eight watersheds approximately 84 stream miles (135 km) below, are all occupied and contain received a low conservation value or 1.3 percent are being excluded physical and biological features rating, 27 received a medium rating, and because the economic benefits of essential to the conservation of the 45 received a high rating to the ESU exclusion outweigh the benefits of species and that may require special (NMFS, 2007b). As a result of the designation. Total potential estimated management considerations or balancing process for economic impacts economic impact, with no exclusions, protection. No unoccupied areas were described above, the Secretary is would be $22.2 million. The exclusions identified that are considered essential excluding from the designation the five identified in Table 3 would reduce the for the conservation of the species. watersheds listed in Table 3. Of the total estimated economic impact to There are 80 watersheds within the habitat areas eligible for designation, $20.1 million (NMFS, 2007d).

TABLE 3.—HABITAT AREAS WITHIN THE GEOGRAPHICAL RANGE OF THE EVOLUTIONARILY SIGNIFICANT UNIT OF OREGON COAST COHO SALMON (ONCORHYNCHUS KISUTCH) AND EXCLUDED FROM CRITICAL HABITAT

Area Subbasin Watershed Watershed name proposed for code exclusion

North Fork Umpqua River subbasin ...... 1710030108 Steamboat Creek ...... Entire watershed. North Fork Umpqua River subbasin ...... 1710030109 Canton Creek ...... Entire watershed. South Fork Umpqua River subbasin ...... 1710030201 Upper South Umpqua River ...... Entire watershed. Umpqua River subbasin ...... 1710030305 Lake Creek ...... Entire watershed. Coquille River subbasin ...... 1710030501 Coquille South Fork, Lower ...... Entire watershed.

Effects of Critical Habitat Designation adverse modification of critical habitat. Activities Affected by Critical Habitat Reasonable and prudent alternatives can Designation ESA Section 7 Consultation vary from slight project modifications to Section 7(a) of the ESA requires extensive redesign or relocation of the Section 4(b)(8) of the ESA requires Federal agencies, including NMFS, to project. Costs associated with that we evaluate briefly and describe, in evaluate their actions with respect to implementing a reasonable and prudent any proposed or final regulation that any species that is proposed or listed as alternative are similarly variable. designates critical habitat, those endangered or threatened and with Regulations at 50 CFR 402.16 require activities involving a Federal action that respect to its critical habitat, if any is Federal agencies to reinitiate may adversely modify such habitat or proposed or designated. Regulations consultation on previously reviewed that may be affected by such implementing this provision of the ESA actions in instances where critical designation. A wide variety of activities are codified at 50 CFR 402. habitat is subsequently designated and may affect critical habitat and, when If a species is listed or critical habitat the Federal agency has retained carried out, funded, or authorized by a is designated, ESA section 7(a)(2) discretionary involvement or control Federal agency, require that an ESA requires Federal agencies to ensure that over the action or such discretionary section 7 consultation be conducted. activities they authorize, fund, or carry involvement or control is authorized by Generally these include water and land out are not likely to jeopardize the law. Consequently, some Federal management actions of Federal agencies continued existence of such a species or agencies may request reinitiation of (e.g., USFS, BLM, USACE, BOR, the to destroy or adversely modify its consultation or conference with us on FHA, the National Resource critical habitat. If a Federal action may actions for which formal consultation Conservation Service (NRCS), National affect a listed species or its critical has been completed, if those actions Park Service (NPS), BIA, and FERC) and habitat, the responsible Federal agency may affect designated critical habitat or related or similar actions of other (action agency) must enter into adversely modify or destroy proposed Federally regulated projects and lands, consultation with us. Through this critical habitat. including livestock grazing allotments consultation, we would review actions Activities on Federal lands that may by the USFS and BLM; hydropower to determine if they would destroy or affect these ESUs or their critical habitat sites licensed by the FERC; dams built adversely modify critical habitat. will require ESA section 7 consultation. or operated by the USACE or BOR; If we issue a biological opinion Activities on private or state lands timber sales and other vegetation concluding that a project is likely to requiring a permit from a Federal management activities conducted by the result in the destruction or adverse agency, such as a permit from the USFS, BLM, and BIA; irrigation modification of critical habitat, we will USACE under section 404 of the CWA, diversions authorized by the USFS and also provide reasonable and prudent a section 10(a)(1)(B) permit from NMFS, BLM; road building and maintenance alternatives to the project, if any are or some other Federal action, including activities authorized by the FHA, USFS, identifiable. Reasonable and prudent funding (e.g., Federal Highway BLM, NPS, and BIA; and mining and alternatives are defined at 50 CFR Administration (FHA) or Federal road building/maintenance activities 402.02 as alternative actions identified Emergency Management Agency authorized by the states of Washington, during consultation that can be (FEMA) funding), will also be subject to Oregon, and Idaho. Other actions of implemented in a manner consistent the section 7 consultation process. concern include dredge and fill, mining, with the intended purpose of the action, Federal actions not affecting listed diking, and bank stabilization activities that are consistent with the scope of the species or critical habitat and actions on authorized or conducted by the USACE, Federal agency’s legal authority and non-Federal and private lands that are habitat modifications authorized by the jurisdiction, that are economically and not Federally funded, authorized, or FEMA, and approval of water quality technologically feasible, and that we permitted do not require section 7 standards and pesticide labeling and use believe would avoid destruction or consultation. restrictions administered by the EPA.

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The Federal agencies that will most Classification protective regulations for the Oregon Coast coho ESU which are being likely be affected by this critical habitat Administrative Procedure Act designation include the USFS, BLM, finalized in this notice. We solicited BOR, USACE, FHA, NRCS, NPS, BIA, The proposed listing determination, comment on the EAs as part of the FEMA, EPA, and the FERC. This proposed protective regulations, and proposed rules, as well as during a designation will provide these agencies, proposed critical habitat designation subsequent comment period following addressing 27 ESUs generated private entities, and the public with formal notice in the Federal Register of substantial public interest. In addition clear notification of critical habitat the availability of the draft EAs for to comments received during 12 public designated for listed salmonids and the review. We have reviewed new hearings, we received 33,480 written information available since the 2000 boundaries of the habitat. This comments. Many of the comments and 2005 analyses and determined that designation will also assist these addressing the critical habitat none of the new information would agencies and others in evaluating the designation expressed concerns about change the earlier analyses, nor would potential effects of their activities on how the rule would be implemented. it change our conclusion that adoption listed salmon and their critical habitat Our experience in implementing of the 4(d) rule will have no significant and in determining if ESA section 7 previous listing determinations, impacts on the human environment consultation with NMFS is needed. protective regulations, and critical (NMFS, 2007g). habitat designations suggests that As noted above, numerous private Regulatory Flexibility Act entities also may be affected by this neither the Administrative Procedure critical habitat designation because of Act (APA) and ESA implementing Under the Regulatory Flexibility Act the direct and indirect linkages to an regulations’ minimum of a 30-day delay (5 U.S.C. 601 et seq., as amended by the in effective date, nor the 60-day delay in Small Business Regulatory Enforcement array of Federal actions, including effective date required by the Fairness Act (SBREFA) of 1996), Federal projects, permits, and funding. Congressional Review Act for a ‘‘major whenever an agency is required to For example, private entities may rule,’’ are sufficient for this final rule. In publish a notice of rulemaking for any harvest timber or graze livestock on order to provide for efficient proposed or final rule, it must prepare Federal land or have special use permits administration of the rule once effective, and make available for public comment to convey water or build access roads we are providing a 90-day delay in a regulatory flexibility analysis that across Federal land; they may require effective date. As a result this rule will describes the effects of the rule on small Federal permits to armor stream banks, be effective on May 12, 2008. This will entities (i.e., small businesses, small construct irrigation withdrawal allow us the necessary time to provide organizations, and small government facilities, or build or repair docks; they for outreach to and interaction with the jurisdictions). For the proposed may obtain water from Federally funded public, to minimize confusion and designation of critical habitat for 13 and operated irrigation projects; or they educate the public about activities that ESUs, including Oregon coast coho, we may apply pesticides that are only may be affected by the rule, and to work published an Initial Regulatory available with Federal agency approval. with Federal agencies and applicants to Flexibility Act Analysis for public These activities will need to be analyzed provide for an orderly implementation comment. We received comments with respect to their potential to destroy of the rule. specific to some of the ESUs, but not to Oregon Coast coho. We received one or adversely modify critical habitat. In National Environmental Policy Act general comment, stating that our some cases, proposed activities may (NEPA) require modifications that may result in analysis should include more ESA listing decisions are exempt from decreases in activities such as timber references. We have prepared a final the requirement to prepare an regulatory flexibility analysis for the harvest and livestock and crop environmental assessment or designation of critical habitat, which is production. The transportation and environmental impact statement under available upon request (see ADDRESSES) utilities sectors may need to modify the the NEPA. See NOAA Administrative and which includes additional placement of culverts, bridges, and Order 216–6.03(e)(1) and Pacific Legal references. This analysis estimates that utility conveyances (e.g., water, sewer Foundation v. Andrus, 657 F.2d 825 the number of regulated small entities and power lines) to avoid barriers to fish (6th Cir. 1981). Thus, we have potentially affected by the final critical migration. Developments occurring in or determined that the final listing habitat designation for the Oregon Coast near salmon streams (e.g., marinas, determination for Oregon Coast coho coho salmon ESU is 920, and the residential, or industrial facilities) that described in this notice is exempt from estimated coextensive costs of section 7 require Federal authorization or funding the requirements of the NEPA. consultation incurred by small entities may need to be altered or built in a Similarly, we have determined that we is $5,072,840. As described in the manner that ensures that critical habitat need not prepare environmental analysis, we considered various is not destroyed or adversely modified analyses for critical habitat designations alternatives for designating critical as a result of the construction, or made pursuant to the ESA. See Douglas habitat for this ESU. We considered and subsequent operation, of the facility. County v. Babbitt, 48 F.3d 1495 (9th Cir. rejected the alternative of not These are just a few examples of 1995), cert. denied, 516 U.S. 1042 designating critical habitat for the ESU potential impacts, but it is clear that the (1996). because such an approach did not meet effects will encompass numerous We conducted Environmental the legal requirements of the ESA. We sectors of private and public activities. Assessments (EAs) under the NEPA also examined and rejected an If you have questions regarding whether analyzing the ESA section 4(d) alternative in which all the eligible regulations promulgated in 2000 for habitat areas in the ESU are designated specific activities will constitute Pacific salmonids (65 FR at 42422 and (i.e., no areas are excluded) because destruction or adverse modification of 42481; July 10, 2000) and the many of the areas considered to have a critical habitat, contact NMFS (see amendments to the 4(d) regulations low conservation value also had ADDRESSES and FOR FURTHER promulgated in 2005 (70 FR 37160; June relatively high economic impacts that INFORMATION CONTACT). 28, 2005). Both EAs analyzed the might be mitigated by excluding those

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areas from designation. A third among the available alternative designate sufficient critical habitat to alternative we examined and rejected approaches, the one adopted here meet the biological goal of the ESA would exclude all habitat areas with a minimizes economic costs, disruptions, while imposing the least burden on low or medium conservation value. and burdens, for the reasons expressed society, as called for by E.O. 12866. While this alternative furthers the goal in the 2000 analysis (attached to NMFS, The annual total coextensive of reducing economic impacts, we could 2007i) and summarized at 65 FR 42422, economic impact of the critical habitat not make a determination that the 42473 (July 10, 2000). The economic designations is approximately $15.7 benefits of excluding all habitat areas assessment and analysis (NMFS, 2007i) million (in contrast to a $18.4 million with low and medium conservation are available upon request (see annual economic impact from value outweighed the benefits of ADDRESSES). designating all eligible areas considered designation. Moreover, for some habitat in the 4(b)(2) process for this ESU). This Paperwork Reduction Act (PRA) areas the incremental economic benefit amount includes impacts that are from excluding that area is relatively Notwithstanding any other provision coextensive with the implementation of small. Therefore, after considering these of the law, no person is required to the jeopardy requirement of section 7 alternatives in the context of the section respond to, nor shall any person be (NMFS, 2007c). 4(b)(2) process of weighing benefits of subject to a penalty for failure to comply We did not estimate the economic exclusion against benefits of with, a collection of information subject impacts associated solely with the designation, we determined that the to the requirements of the PRA, unless listing of Oregon Coast coho ESU under current approach to designation (i.e., that collection of information displays a the ESA. currently valid OMB Control Number. designating some but not all areas with E.O. 13084—Consultation and low or medium conservation value) This final rule does not contain a collection-of-information requirement Coordination With Indian Tribal provides an appropriate balance of Governments conservation and economic mitigation for purposes of the PRA. and that excluding the areas identified E.O. 13084 requires that, if we issue Regulatory Planning and Review—E.O. a regulation that significantly or in this rulemaking would not result in 12866 extinction of the ESU. It is estimated uniquely affects the communities of that small entities will save $281,687 in We prepared a Regulatory Impact Indian tribal governments and imposes compliance costs due to the exclusions Review in 2000 when the ESA section substantial direct compliance costs on made in the final designation. 4(d) regulations were initially adopted those communities, we must consult ESA section 4(d) regulations for and concluded that among the with those governments or the Federal Oregon Coast coho were originally alternative regulatory approaches, the Government must provide the funds proposed on December 30, 1999 (64 FR proposed 4(d) rule would maximize net necessary to pay the direct compliance 73479). The rule adopted here is benefits and minimize costs, within the costs incurred by the tribal substantially the same as that proposed constraints of the ESA. We have governments. The final listing in 1999. At that time we published an reviewed that analysis and new determination and protective Initial Regulatory Flexibility Act information available since the analysis regulations included in this rule do not analysis, which considered four was initially prepared, including OMB impose substantial direct compliance alternative approaches to protective Circular A–4 (2003). We have costs on the communities of Indian regulations. We concluded that there determined that none of the new tribal governments. Accordingly, the were no legally viable alternative to the information would change the earlier requirements of section 3(b) of E.O. one we proposed in 1999 that would analysis or conclusion (NMFS, 2007i). 13084 do not apply to the listing and have less impact on small entities and The critical habitat component of this protective regulations components of still fulfill agency obligations to protect notice is a significant rule and has been this final rule. Nonetheless, we intend listed salmonids. We received five reviewed by the OMB. As noted above, to inform potentially affected tribal public comments on the Initial we have prepared several reports to governments and to solicit their input Regulatory Flexibility Act analysis and support the exclusion process under and coordinate on future management the economic impacts of the proposed section 4(b)(2) of the ESA. The actions. 4(d) rule. When the rule was adopted in economic costs of the critical habitat The Departments of Commerce and 2000, we completed a Final Regulatory designations are described in our Interior Secretarial Order ‘‘American Flexibility Act analysis, which economic report (NMFS, 2007c). The Indian Tribal Rights, Federal-Tribal responded to public comments, and benefits of the designations are Trust Responsibilities, and the reached the same conclusion as the described in the CHART report (NMFS, Endangered Species Act’’ (June 5, 1997) initial analysis. The 2000 4(d) 2007b) and the 4(b)(2) report (NMFS, provides that the Services * * * ‘‘shall regulations for Oregon Coast coho were 2007d). The CHART report uses a consult with the affected Indian tribe(s) invalidated when the underlying listing biologically-based ranking system for when considering the designation of was vacated in 2001. In 2004 when we gauging the benefits of applying section critical habitat in an area that may proposed to again list Oregon Coast 7 of the ESA to particular watersheds. impact tribal trust resources, tribally coho, we also proposed to reinstate the Because data are not available to owned fee lands, or the exercise of tribal 4(d) regulations. We did not conduct a monetize these benefits, we have rights. Critical habitat shall not be new Regulatory Flexibility Act analysis adopted a framework that implicitly designated in such areas unless it is at that time because there were no new evaluates the benefits and costs based determined essential to conserve a listed issues to consider. on a biological metric as outlined in the species.’’ Pursuant to the Secretarial In preparing the final ESA section section 4(b)(2) report (NMFS, 2007b). Order and in response to written and 4(d) regulations adopted here, we This approach is consistent with the oral comments provided by various determined it was advisable to update spirit of OMB’s Circular A–4 in that it tribes in Washington, Oregon, and our Regulatory Flexibility Act analysis, attempts to assess the benefits and costs Idaho, we met and corresponded with to ensure that we were considering even when limitations in data may not many of the affected tribes concerning current information. Our updated allow quantification or monetization. By the inclusion of Indian lands in final analysis led us to again conclude that taking this approach, we seek to critical habitat designations. These

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discussions resulted in significant will not produce a Federal mandate. In Federal entities are indirectly impacted clarifications regarding the tribes’ general, a Federal mandate is a because they receive Federal assistance general position to exclude their lands, provision in legislation, statute, or or participate in a voluntary Federal aid as well as specific issues regarding our regulation that would impose an program, the Unfunded Mandates interpretation of Indian lands under the enforceable duty upon state, local, tribal Reform Act would not apply; nor would Secretarial Order. governments, or the private sector and the listing or critical habitat shift the As described above (see Exclusions includes both ‘‘Federal costs of the large entitlement programs Based on Impacts to Tribes) and in our intergovernmental mandates’’ and listed above to state governments. assessment of Indian lands associated ‘‘Federal private sector mandates.’’ (b) The ESA section 4(d) regulations with this final rulemaking (NMFS, These terms are defined in 2 U.S.C. prohibit any person from taking a listed 2007f), we have determined that Indian 658(5)–(7). ‘‘Federal intergovernmental member of the Oregon Coast coho ESU, lands should be excluded from the final mandate’’ includes a regulation that except under certain circumstances. critical habitat designations for the ‘‘would impose an enforceable duty This prohibition applies to state and Oregon Coast coho ESU. The Indian upon State, local, or tribal governments’’ local government actions as well as lands specifically excluded from critical with two exceptions. It excludes ‘‘a private individuals. The 4(d) regulations habitat are those defined in the condition of Federal assistance.’’ It also prohibit certain activities, but do not Secretarial Order, including: (1) Lands excludes ‘‘a duty arising from impose an ‘‘enforceable duty’’ with held in trust by the United States for the participation in a voluntary Federal associated costs to implement. As such, benefit of any Indian tribe; (2) land held program,’’ unless the regulation ‘‘relates the 4(d) regulations are not considered in trust by the United States for any to a then-existing Federal program an unfunded mandate for the purposes Indian Tribe or individual subject to under which $500,000,000 or more is of the Unfunded Mandates Reform Act. restrictions by the United States against provided annually to State, local, and alienation; (3) fee lands, either within or tribal governments under entitlement Takings outside the reservation boundaries, authority,’’ if the provision would The final threatened listing owned by the tribal government; and (4) ‘‘increase the stringency of conditions of determination is a non-discretionary fee lands within the reservation assistance’’ or ‘‘place caps upon, or action and therefore is not subject to the boundaries owned by individual otherwise decrease, the Federal requirements of E.O. 12630. In Indians. We have determined that these Government’s responsibility to provide accordance with E.O. 12630, this final exclusions, together with the other funding’’ and the state, local, or tribal rule does not have significant takings exclusions described in this final rule, governments ‘‘lack authority’’ to adjust implications. Under E.O. 12630, will not result in extinction of the accordingly. (At the time of enactment, ‘‘Actions undertaken by governmental species (NMFS, 2007d). these entitlement programs were: officials that result in a physical E.O. 13211 Medicaid; Aid to Families with invasion or occupancy of private Dependent Children work programs; property, and regulations imposed on On May 18, 2001, the President issued Child Nutrition; Food Stamps; Social private property that substantially affect an Executive Order on regulations that Services Block Grants; Vocational its value or use, may constitute a taking significantly affect energy supply, Rehabilitation State Grants; Foster Care, of property’’ [emphasis added]. Neither distribution, and use. E.O. 13211 Adoption Assistance, and Independent the critical habitat designation nor 4(d) requires agencies to prepare Statements Living; Family Support Welfare regulations can be expected to of Energy Effects when undertaking Services; and Child Support substantially affect the value or use of certain actions. This rule may be a Enforcement). ‘‘Federal private sector property. A takings implication significant regulatory action under E.O. mandate’’ includes a regulation that assessment is not required. 12866. We have determined, however, ‘‘would impose an enforceable duty that the energy effects of the regulatory The designation of critical habitat upon the private sector, except (i) a confers the ESA section 7 protection action are unlikely to exceed the energy condition of Federal assistance; or (ii) a impact thresholds identified in E.O. against ‘‘the destruction or adverse duty arising from participation in a modification of [critical] habitat.’’ The 13211. voluntary Federal program.’’ The available data do not allow us to designation of critical habitat in this separate precisely these incremental ESA listing and the designation of rule affects only Federal agency actions, impacts from the impacts of all critical habitat do not impose a legally and will not increase or decrease the conservation measures on energy binding duty on non-Federal current restrictions on private property production and costs. There is historical government entities or private parties. concerning take of salmon. While it is evidence, however, that the ESA section Under the ESA, the only regulatory possible that real estate market values 7 jeopardy standard alone is capable of effect is that Federal agencies must may temporarily decline following imposing all of these costs (NMFS, ensure that their actions do not designation, due to the perception that 2007j). While this evidence is indirect, jeopardize the continued existence of critical habitat designation may impose it is sufficient to draw the conclusion the species or destroy or adversely additional regulatory burdens on land that the designation of critical habitat modify critical habitat under section 7. use, our experience is that such impacts for this one ESU does not significantly While non-Federal entities who receive do not occur or are short lived (NMFS, affect energy supply, distribution, or Federal funding, assistance, permits or 2007d). Owners of areas that are use. otherwise require approval or included in the designated critical authorization from a Federal agency for habitat will continue to have the Unfunded Mandates Reform Act (2 an action may be indirectly impacted by opportunity to use their property in U.S.C. 1501 et seq.) the listing or designation of critical ways consistent with the survival of In accordance with the Unfunded habitat, the legally binding duty to listed salmon. Therefore, the Mandates Reform Act, we make the avoid jeopardy and the destruction or designation of critical habitat does not following findings: adverse modification of critical habitat substantially affect the value or use of (a) This final rule listing Oregon Coast rests squarely on the Federal agency. private property, and does not coho and designating critical habitat Furthermore, to the extent that non- constitute a taking.

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The adoption of ESA section 4(d) direct compliance costs on state and of the E.O. We are designating critical regulations includes a prohibition local governments (unless required by habitat in accordance with the against ‘‘take’’ of a listed species (the statute). Neither of those circumstances provisions of the ESA. This final rule definition of ‘‘take’’ is to ‘‘harass, harm, is applicable to this final rule. In fact, uses standard property descriptions and pursue, hunt, shoot, wound, kill, trap, the adopted ESA section 4(d) identifies the PCEs within the capture, or collect, or to attempt to regulations provide mechanisms by designated areas to assist the public in engage in any such conduct.’’). The take which NMFS, in the form of limits to understanding the habitat needs of the prohibition applies to any person take prohibitions, may defer to state and Oregon Coast coho ESU. subject to the jurisdiction of the United local governments where they provide References States, and may be perceived as adequate protections for threatened affecting the value or use of property. salmonids. A list of the referenced materials is However, the 4(d) regulations do not With respect to the designation of available on the Internet at http:// substantially affect the value or use of critical habitat, this final rule does not www.nwr.noaa.gov, or upon request (see property for the following reasons. First, have significant federalism effects. In ADDRESSES section above). private property is already subject to keeping with Department of Commerce List of Subjects in 50 CFR Parts 223 and state and local land-use regulations. policies, we requested information from, 226 Second, any action on private property and coordinated development of, this authorized, funded, or carried out by a critical habitat designation with Endangered and threatened species, Federal agency that may take listed appropriate state resource agencies in Exports, Reporting and recordkeeping species is already subject to the section the State of Oregon. The designation requirements. 7 ‘‘no jeopardy’’ protection by virtue of may have some benefit to the State and Dated: February 1, 2008. the listing determination. Third, our local resource agencies in that the areas Samuel Rauch, III, experience with Pacific salmonid 4(d) essential to the conservation of the Deputy Assistant Administrator for regulation since 1997 is that any species are more clearly defined, and Regulations, National Marine Fisheries declines in property value are either in the PCEs of the habitat essential to the Service. perception only or short lived. Land conservation of the species are owners quickly realize that the 4(d) specifically identified. While making I For the reasons set out in the regulations do not impose restrictions in these clarifications does not alter where preamble, 50 CFR parts 223 and 226 are addition to pre-existing land-use laws and what federally sponsored activities amended as follows: and the listing itself, or they conduct may occur, it may assist local actions on their property in ways governments in long-range planning PART 223—THREATENED MARINE consistent with the survival of listed (rather than waiting for case-by-case AND ANADROMOUS SPECIES salmon by availing themselves to the section 7 consultations to occur). I 1. The authority citation for part 223 exceptions provided under the 4(d) Civil Justice Reform continues to read as follows: limits. One commenter asserted that we Authority: 16 U.S.C. 1531–1543. E.O. 13132—Federalism failed to properly conduct and provide I 2. In § 223.102, the table heading is E.O. 13132 requires agencies to take a Civil Justice Reform analysis pursuant revised and paragraph (c)(24) of the into account any Federalism impacts of to E.O. 12988. The Department of table is added to read as follows: regulations under development. It Commerce has determined that this includes specific consultation directives final rule does not unduly burden the § 223.102 Enumeration of threatened for situations where a regulation will judicial system and meets the marine and anadromous species. preempt state law, or impose substantial requirements of sections 3(a) and 3(b)(2) * * * * *

Species 1 Where listed Citation(s) for listing Citation(s) for critical Common name Scientific name determination(s) habitat designation(s)

******* (c) * * * (24) Oregon Coast Oncorhynchus kisutch U.S.A., OR, all naturally spawned popu- 73 FR [Insert FR page 73 FR [Insert FR page Coho. lations of coho salmon in Oregon coastal number where the number where the streams south of the Columbia River and document begins]; document begins]; north of Cape Blanco, including the Cow 2/11/08. 2/11/08. Creek (ODFW stock #37) coho hatchery program.

*******

I 3. In § 223.203, paragraph (b)(2) is (2) The prohibitions of paragraph (a) the application has been received by the revised to read as follows: of this section relating to Oregon Coast Assistant Administrator for Fisheries, coho salmon, listed in § 223.102(a)(24), NOAA (AA), no later than June 10, § 223.203 Anadromous fish. do not apply to activities specified in an 2008. The prohibitions of this section * * * * * application for a permit for scientific apply to these activities upon the (b) * * * purposes or to enhance the conservation Assistant Administrator’s rejection of or survival of the species, provided that the application as insufficient, upon

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issuance or denial of a permit, or March paragraphs (a)(13) and (u) are added to descriptions of critical habitat for each 31, 2009, whichever occurs earliest. read as follows: ESU are included in paragraphs (i) * * * * * through (u) of this section, and these § 226.212 Critical habitat for 13 descriptions are the definitive source for PART 226—DESIGNATED CRITICAL Evolutionarily Significant Units (ESUs) of determining the critical habitat salmon and steelhead (Oncorhynchus spp.) HABITAT in Washington, Oregon and Idaho. boundaries. General location maps are provided at the end of each ESU I 4. The authority citation of part 226 Critical habitat is designated in the description (paragraphs (i) through (u) continues to read as follows: following states and counties for the of this section) and are provided for Authority: 16 U.S.C. 1533. following ESUs as described in general guidance purposes only, and not paragraph (a) of this section, and as as a definitive source for determining I 5. In § 226.212, the section’s heading further described in paragraphs (b) critical habitat boundaries. and introductory text are revised and through (g) of this section. The textual (a) * * *

ESU State—Counties

******* (13) Oregon Coast coho salmon ...... OR—Benton, Clatsop, Columbia, Coos, Curry, Douglas, Lane, Oregon Lincoln, Polk, Tillamook, Washington, and Yamhill.

* * * * * Necanicum River (45.8760,¥123.8122); (45.7225,¥123.3857); Dog Creek (u) Oregon Coast Coho Salmon Shangrila Creek (45.9706,¥123.8778); (45.8957,¥123.0741); Elk Creek (Oncorhynchus kisutch). Critical habitat Short Sand Creek (45.7763,¥123.9406); (45.8256,¥123.1290); Fall Creek is designated to include the areas Thompson Creek (46.0108,¥123.8951); (45.8626,¥123.3247); Ginger Creek defined in the following subbasins: Tolovana Creek (45.8581,¥123.9370); (45.8520,¥123.3511); Ivy Creek (1) Necanicum Subbasin 17100201— Unnamed (45.8648,¥123.9371); (45.8938,¥123.3160); Jim George Creek Necanicum River Watershed Unnamed (45.8821,¥123.9318); (45.8009,¥123.1041); Kenusky Creek 1710020101. Outlet(s) = Arch Cape Unnamed (45.8881,¥123.7436); (45.8859,¥123.0422); Kist Creek ¥ ¥ Creek (Lat 45.8035, Long 123.9656); Unnamed (45.8883, 123.9366); (45.7826,¥123.2507); Lousignont Creek ¥ ¥ Asbury Creek (45.815, 123.9624); Unnamed (45.8906, 123.7460); (45.7424,¥123.3722); Lousignont Creek, ¥ ¥ Ecola Creek (45.8959, 123.9649); Unnamed (45.8912, 123.9433); North Fork (45.7463,¥123.3576); Necanicum River (46.0113,¥123.9264); ¥ Unnamed (45.8950, 123.8715); Martin Creek (45.8474,¥123.4025); Short Sand Creek (45.7595,¥123.9641) ¥ Unnamed (45.9026, 123.9540); Maynard Creek (45.8556,¥123.3038); upstream to endpoint(s) in: Arch Cape ¥ Unnamed (45.9046, 123.9578); Military Creek (45.8233,¥123.4812); Creek (45.8044,¥123.9404); Asbury ¥ Unnamed (45.9050, 123.9585); Nehalem River (45.7269,¥123.4159); Creek (45.8150,¥123.9584); Beerman Unnamed (45.9143,¥123.8656); ¥ ¥ Nehalem River, East Fork Creek (45.9557, 123.8749); Bergsvik Unnamed (45.9161, 123.9000); ¥ ¥ ¥ (45.8324, 123.0502); Olson Creek Creek (45.8704, 123.7650); Brandis Unnamed (45.9210, 123.8668); ¥ Creek (45.8894,¥123.8529); Charlie ¥ (45.8129, 123.3853); Pebble Creek Unnamed (45.9273, 123.8499); ¥ Creek (45.9164,¥123.7606); Circle ¥ (45.7661, 123.1357); Pebble Creek, Unnamed (45.9292, 123.8900); ¥ Creek (45.9248,¥123.9436); Circle ¥ West Fork (45.7664, 123.1899); Unnamed (45.9443, 123.9038); ¥ Creek Trib A (45.9335,¥123.9457); ¥ Robinson Creek (45.7363, 123.2512); Unnamed (45.9850, 123.8999); ¥ North Fork Ecola Creek ¥ Rock Creek (45.8135, 123.5201); Rock Unnamed (46.0018, 123.8998); Volmer ¥ (45.8705,¥123.9070); West Fork Ecola Creek (45.9049,¥123.9139); Warner Creek, North Fork (45.8616, 123.4560); Creek (45.8565,¥123.9424); Grindy Creek (45.8887,¥123.7801); Williamson Rock Creek, South Fork ¥ Creek (45.9179,¥123.7390); Hawley Creek (45.9522,¥123.9060). (45.7598, 123.4249); Rock Creek Trib C Creek (45.9259,¥123.8864); Joe Creek (2) Nehalem Subbasin 17100202—(i) (45.7957,¥123.4882); South Fork Rock (45.8747,¥123.7503); Johnson Creek Upper Nehalem River Watershed Creek Trib A (45.7753,¥123.4586); (45.8885,¥123.8816); Klootchie Creek 1710020201. Outlet(s) = Nehalem River South Fork Nehalem River (45.9450,¥123.8413); Klootchie Creek (Lat 45.9019, Long ¥123.1442) (45.7073,¥123.4017); Selder Creek Trib A (45.9250,¥123.8447); Lindsley upstream to endpoint(s) in: Bear Creek (45.8975,¥123.3806); South Fork Clear Creek (45.9198,¥123.8339); Little (45.7781,¥123.4252); Bear Creek Creek (45.8141,¥123.3484); South Humbug Creek (45.9235,¥123.7653); (45.8556,¥123.2205); Beaver Creek Prong Clear Creek (45.7832,¥123.2975); Little Joe Creek (45.8781,¥123.7852); (45.7624,¥123.2073); Beaver Creek Trib Step Creek (45.6824,¥123.3348); Little Muddy Creek A (45.8071,¥123.2143); Beaver Creek Swamp Creek (45.8217,¥123.2004); (45.9551,¥123.9559); Mail Creek Trib B (45.7711,¥123.2318); Carlson Unnamed (45.7270,¥123.3419); (45.8887,¥123.8655); Meyer Creek Creek (45.7173,¥123.3425); Castor Unnamed (45.8095,¥123.0908); (45.9279,¥123.9135); Mill Creek Creek (45.7103,¥123.2698); Cedar Unnamed (45.7558,¥123.2630); (46.0245,¥123.8905); Mill Creek Trib 1 Creek (45.8528,¥123.2928); Clear Unnamed (45.7938,¥123.3847); (46.0142,¥123.8967); Neacoxie Creek Creek, Lower North Fork Unnamed (45.7943,¥123.4059); (46.0245,¥123.9157); Neawanna Creek (45.8229,¥123.3111); Clear Creek Unnamed (45.8197,¥123.0679); (45.9810,¥123.8809); Necanicum River (45.8239,¥123.3531); Coal Creek Trib B Unnamed (45.8477,¥123.0734); (45.9197,¥123.7106); North Fork (45.8149,¥123.1174); Coal Creek Unnamed (45.8817,¥123.1266); Necanicum River (45.9308,¥123.7986); (45.7978,¥123.1293); Coon Creek Unnamed (45.8890,¥123.3817); North Fork Necanicum River Trib A (45.8211,¥123.1446); Dell Creek Unnamed (45.9019,¥123.1346); Weed (45.9398,¥123.8109); South Fork (45.7919,¥123.1559); Derby Creek Creek (45.8707,¥123.4049); Wolf Creek,

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South Fork (45.7989,¥123.4028); Wolf South Fork (45.7456,¥123.5596); (45.8492,¥123.6796); Rackheap Creek Creek (45.7768,¥123.3556). Destruction Creek (45.8750,¥123.6571); (45.7677,¥123.8008); Sally Creek (ii) Middle Nehalem River Watershed East Humbug Creek (45.8294,¥123.7468); Soapstone Creek 1710020202. Outlet(s) = Nehalem River (45.9454,¥123.6358); Fishhawk Creek (45.8498,¥123.7469); Soapstone Creek, (Lat 45.9838, Long ¥123.4214) (45.9666,¥123.5895); Fishhawk Creek Trib A (45.8591,¥123.7616); upstream to endpoint(s) in: Adams (46.0224,¥123.5374); George Creek Sweethome Creek (45.7699,¥123.6616); Creek (46.0263,¥123.2869); Archibald (45.8461,¥123.6226); George Creek Unnamed (45.7457,¥123.8490); Creek (45.9218,¥123.0829); Beaver (45.9118,¥123.5766); Gilmore Creek Unnamed (45.7716,¥123.7691); Creek (46.0554,¥123.2985); Boxler (45.9609,¥123.5372); Hamilton Creek Unnamed (45.7730,¥123.7789); Creek (46.0486,¥123.3521); Calvin (46.0034,¥123.5881); Klines Creek Unnamed (45.7736,¥123.7607); Creek (45.9514,¥123.2976); Cedar (45.8703,¥123.4908); Larsen Creek Unnamed (45.7738,¥123.7534); Creek (45.9752,¥123.1143); Cook Creek (45.8757,¥123.5847); Little Fishhawk Unnamed (45.7780,¥123.7434); (45.9212,¥123.1087); Cow Creek Creek (45.9256,¥123.5501); Little Rock Unnamed (45.7784,¥123.7742); (46.0500,¥123.4326); Crooked Creek Creek (45.8886,¥123.4558); McClure Unnamed (45.7794,¥123.7315); (45.9043,¥123.2689); Deep Creek Creek (45.8560,¥123.6227); Moores Unnamed (45.7824,¥123.7396); (45.9461,¥123.3719); Deep Creek Trib Creek (45.8801,¥123.5178); Nehalem Unnamed (45.7833,¥123.7680); A (45.9127,¥123.3794); Deep Creek River (45.9838,¥123.4214); Quartz Unnamed (45.7841,¥123.7299); Trib B (45.9314,¥123.3809); Deer Creek Creek (45.8414,¥123.5184); Spruce Run Unnamed (45.7858,¥123.7660); (45.9033,¥123.3142); Eastman Creek Creek (45.8103,¥123.6028); Squaw Unnamed (45.7898,¥123.7424); (46.0100,¥123.2262); Fall Creek Creek (45.9814,¥123.4529); Stanley Unnamed (45.7946,¥123.7365); (45.9438,¥123.2012); Fishhawk Creek Creek (45.8861,¥123.4352); Strum Unnamed (45.7966,¥123.7953); (46.0596,¥123.3857); Fishhawk Creek, Creek (45.9321,¥123.4275); Trailover Unnamed (45.8008,¥123.7349); North Fork (46.0907,¥123.3675); Creek (46.0129,¥123.4976); Unnamed Unnamed (45.8193,¥123.7436); Fishhawk Creek, Trib C (45.8083,¥123.6280); Unnamed Unnamed (45.8322,¥123.7789); (46.0808,¥123.3692); Ford Creek (45.8682,¥123.6168); Unnamed Unnamed (45.8359,¥123.7766); (46.0570,¥123.2872); Gus Creek (45.9078,¥123.6630); Unnamed Unnamed (45.8569,¥123.7235); (45.9828,¥123.1453); Johnson Creek (45.9207,¥123.4534); Unnamed Unnamed (45.8629,¥123.7347); (46.0021,¥123.2133); Lane Creek (45.9405,¥123.6338); Unnamed Unnamed (45.8662,¥123.7444); (45.9448,¥123.3253); Little Deer Creek (45.9725,¥123.5544); West Humbug Unnamed (45.8962,¥123.7189). (45.9378,¥123.2780); Lousignont Creek Creek (45.9402,¥123.6726); Walker (vi) Lower Nehalem River/Cook Creek (46.0342,¥123.4186); Lundgren Creek Creek (45.9266,¥123.4423); Walker Watershed 1710020206. Outlet(s) = (46.0240,¥123.2092); McCoon Creek Creek (46.0391,¥123.5142); West Brook Nehalem River (Lat 45.6577, Long (46.0665,¥123.3043); Messing Creek (45.9757,¥123.4638). ¥123.9355) upstream to endpoint(s) in: (46.0339,¥123.2260); Nehalem River (iv) Salmonberry River Watershed Alder Creek (45.7286,¥123.9091); (45.9019,¥123.1442); Northrup Creek 1710020204. Outlet(s) = Salmonberry Anderson Creek (45.6711,¥123.7470); (46.0672,¥123.4377); Oak Ranch Creek River (Lat 45.7507, Long ¥123.6530) Bastard Creek (45.7667,¥123.6943); (45.9085,¥123.0834); Sager Creek upstream to endpoint(s) in: Pennoyer Bob’s Creek (45.7444,¥123.9038); Cook (45.9388,¥123.4020); Unnamed Creek (45.7190,¥123.4366); Creek (45.6939,¥123.6146); Cook Creek, (45.9039,¥123.2044); Unnamed Salmonberry River East Fork (45.6705,¥123.6440); Daniels (45.9067,¥123.0595); Unnamed (45.7248,¥123.4436); Salmonberry Creek (45.6716,¥123.8606); Dry Creek (45.9488,¥123.2220); Unnamed River, North Fork (45.7181,¥123.5204); (45.6449,¥123.8507); Dry Creek (45.9629,¥123.3845); Unnamed Wolf Creek (45.6956,¥123.4485). (45.6985,¥123.7422); East Foley Creek (45.9999,¥123.1732); Unnamed (v) North Fork of Nehalem River (45.6621,¥123.8068); Fall Creek (46.0088,¥123.4508); Unnamed Watershed 1710020205. Outlet(s) = (45.7489,¥123.7778); Foley Creek (46.0208,¥123.4588); Unnamed Nehalem River, North Fork (Lat 45.7317, (45.6436,¥123.8933); Gallagher Slough (46.0236,¥123.2381); Unnamed Long ¥123.8765) upstream to (45.7140,¥123.8657); Hanson Creek (46.0308,¥123.3135); Unnamed endpoint(s) in: Acey Creek (45.6611,¥123.7179); Harliss Creek (46.0325,¥123.4650); Unnamed (45.7823,¥123.8292); Anderson Creek (45.6851,¥123.7249); Helloff Creek (46.0390,¥123.3648); Unnamed (45.7643,¥123.9073); Big Rackheap (45.7545,¥123.7603); Hoevett Creek (46.0776,¥123.3274); Unnamed Creek (45.7546,¥123.8145); Boykin (45.6894,¥123.6276); Jetty Creek (46.0792,¥123.3409); Unnamed Creek (45.8030,¥123.8595); Buchanan (45.6615,¥123.9103); Lost Creek (46.0345,¥123.2956); Warner Creek Creek (45.8270,¥123.7901); Coal Creek (45.7216,¥123.7164); Neahkahnie Creek (46.0312,¥123.3817); Wrong Way Creek (45.7897,¥123.8676); Coal Creek, West (45.7197,¥123.9247); Nehalem River (46.0789,¥123.3142). Fork (45.7753,¥123.8871); Cougar (45.7507,¥123.6530); Peterson Creek (iii) Lower Nehalem River Watershed Creek (45.8064,¥123.8090); Fall Creek (45.6975,¥123.8098); Piatt Canyon 1710020203. Outlet(s) = Nehalem River (45.7842,¥123.8547); Fall Creek (45.6844,¥123.6983); Roy Creek (Lat 45.7507, Long ¥123.6530) (45.8226,¥123.7054); Gods Valley (45.7174,¥123.8038); Snark Creek upstream to endpoint(s) in: Alder Creek Creek (45.7689,¥123.7793); Grassy Lake (45.7559,¥123.6713); Unnamed (45.9069,¥123.5907); Beaver Creek Creek (45.7988,¥123.8193); Gravel (45.6336,¥123.8549); Unnamed (45.8949,¥123.6764); Big Creek Creek (45.7361,¥123.8126); Henderson (45.6454,¥123.8663); Unnamed (45.8655,¥123.6476); Bull Heifer Creek Creek (45.7932,¥123.8548); Jack Horner (45.6483,¥123.8605); Unnamed (45.9908,¥123.5322); Buster Creek Creek (45.8531,¥123.7837); Lost Creek (45.6814,¥123.8786); Unnamed (45.9306,¥123.4165); Cedar Creek (45.7909,¥123.7195); Nehalem River, (45.7231,¥123.9016). (45.8931,¥123.6029); Cow Creek Little North Fork (45.9101,¥123.6972); (3) Wilson/Trask/Nestucca Subbasin (45.8587,¥123.5206); Crawford Creek Nehalem River, North Fork 17100203—(i) Little Nestucca River (45.9699,¥123.4725); Cronin Creek, (45.8623,¥123.7463); Nehalem River, Watershed 1710020301. Outlet(s) = Middle Fork (45.7719,¥123.5747); North Fork, Trib R Little Nestucca River (Lat 45.1827, Long Cronin Creek, North Fork (45.8287,¥123.6625); Nehalem River, ¥123.9543) upstream to endpoint(s) in: (45.7795,¥123.6064); Cronin Creek, North Fork, Trib T Austin Creek (45.1080,¥123.8748);

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Austin Creek, West Fork (45.3405,¥123.8029); Tiger Creek, Trib Creek (45.3910,¥123.5656); Rawe Creek (45.1074,¥123.8894); Baxter Creek A (45.3346,¥123.8547); Tony Creek (45.4395,¥123.6351); Rock Creek (45.1149,¥123.7705); Bear Creek (45.2575,¥123.7735); Turpy Creek (45.3515,¥123.5074); Samson Creek (45.1310,¥123.8500); Bowers Creek (45.2537,¥123.7620); Unnamed (45.4662,¥123.6439); Scotch Creek (45.1393,¥123.9198); Cedar Creek (45.1924,¥123.8202); Unnamed (45.4015,¥123.5873); Steampot Creek (45.0971,¥123.8094); Fall Creek (45.2290,¥123.9398); Unnamed (45.3875,¥123.5425); Stretch Creek (45.1474,¥123.8767); Hiack Creek (45.3018,¥123.4636); Unnamed (45.3483,¥123.5382); Summit Creek (45.0759,¥123.8042); Kautz Creek (45.3102,¥123.6628); Unnamed (45.3481,¥123.6054); Summit Creek, (45.0776,¥123.8317); Kellow Creek (45.3148,¥123.6616); Unnamed South Fork (45.3473,¥123.6145); Trask (45.1271,¥123.9072); Little Nestucca (45.3158,¥123.8679); Unnamed River, North Fork, Middle Fork River (45.0730,¥123.7825); Little (45.3292,¥123.8872); Walker Creek (45.4472,¥123.3945); Trask River, Nestucca River, South Fork (45.2914,¥123.4207); West Beaver North Fork, North Fork (45.0754,¥123.8393); Louie Creek Creek (45.3109,¥123.8840); West Creek (45.5275,¥123.4177); Trask River, (45.1277,¥123.7869); McKnight Creek (45.2899,¥123.8514); Wildcat Creek South Fork (45.3538,¥123.6445); Trib A (45.1124,¥123.8363); Small Creek (45.3164,¥123.8187); Wolfe Creek (45.3766,¥123.5191); Trib B (45.1151,¥123.8227); Sourgrass Creek (45.3113,¥123.7658); Woods Creek (45.3776,¥123.4988); Unnamed (45.0917,¥123.7623); Sourgrass Creek, (45.1691,¥123.8070). (45.3639,¥123.6054); Unnamed Trib A (45.1109,¥123.7664); Squaw (iii) Tillamook River Watershed (45.4105,¥123.7741); Unnamed Creek (45.1169,¥123.8938); Stillwell 1710020303. Outlet(s) = Tillamook (45.4201,¥123.6320); Unnamed ¥ Creek (45.0919,¥123.8141); Unnamed River (Lat 45.4682, Long 123.8802) (45.4220,¥123.7654). (45.1169,¥123.7974). upstream to endpoint(s) in: Bear Creek (v) Wilson River Watershed (45.4213,¥123.8885); Beaver Creek 1710020305. Outlet(s) = Wilson River (ii) Nestucca River Watershed (45.4032,¥123.8861); Bewley Creek (Lat 45.4816, Long ¥123.8708) 1710020302. Outlet(s) = Nestucca Bay (45.3637,¥123.8965); Esther Creek upstream to endpoint(s) in: Beaver (Lat 45.1607, Long ¥123.9678) (45.4464,¥123.9017); Fawcett Creek Creek (45.4894,¥123.7933); Ben Smith upstream to endpoint(s) in: Alder Creek (45.3824,¥123.7210); Joe Creek Creek (45.5772,¥123.5072); Cedar (45.1436,¥123.7998); Alder Creek (45.3754,¥123.8257); Killam Creek Creek (45.5869,¥123.6228); Cedar (45.2436,¥123.7364); Bays Creek (45.4087,¥123.7276); Mills Creek Creek, North Fork (45.6066,¥123.6151); (45.3197,¥123.7240); Bear Creek ¥ ¥ ¥ (45.3461, 123.7915); Munson Creek Deo Creek (45.6000, 123.3716); Drift (45.3188, 123.6022); Bear Creek (45.3626,¥123.7681); Simmons Creek Creek (45.6466,¥123.3944); Elk Creek (45.3345,¥123.7898); Beulah Creek ¥ ¥ ¥ (45.3605, 123.7364); Sutton Creek (45.6550, 123.4620); Elk Creek, West (45.2074, 123.6747); Bible Creek (45.4049,¥123.8568); Tillamook River Fork (45.6208,¥123.4717); Elliott Creek (45.2331,¥123.5868); Boulder Creek ¥ ¥ ¥ (45.3595, 123.9115); Tomlinson Creek (45.5997, 123.3925); Fall Creek (45.2530, 123.7525); Buck Creek (45.4587,¥123.8868); Unnamed (45.4936,¥123.5616); Fox Creek (45.1455,¥123.7734); Cedar Creek ¥ ¥ ¥ (45.3660, 123.8313); Unnamed (45.5102, 123.5869); Hatchery Creek (45.3288, 123.4531); Clarence Creek (45.3602,¥123.8466); Unnamed (45.4835,¥123.7074); Hughey Creek (45.2649,¥123.6395); Clear Creek ¥ ¥ ¥ (45.3654, 123.9050); Unnamed (45.4540, 123.7526); Idiot Creek (45.1725, 123.8660); Crazy Creek (45.3987,¥123.7105); Unnamed (45.6252,¥123.4296); Jones Creek (45.1636,¥123.7595); Dahl Fork ¥ ¥ ¥ (45.4083, 123.8160); Unnamed (45.6028, 123.5702); Jordan Creek (45.2306, 123.7076); East Beaver Creek (45.4478,¥123.8670); Unnamed (45.5610,¥123.4557); Jordan Creek, (45.3579,¥123.6877); East Creek ¥ ¥ ¥ (45.3950, 123.7348). South Fork (45.5099, 123.5279); (45.3134, 123.6348); Elk Creek (iv) Trask River Watershed Kansas Creek (45.4861,¥123.6434); ¥ (45.3134, 123.5645); Elk Creek, Trib A 1710020304. Outlet(s) = Trask River (Lat Morris Creek (45.6457,¥123.5409); ¥ (45.2926, 123.5381); Elk Creek, Trib B 45.4682, Long ¥123.8802) upstream to Tuffy Creek (45.5787,¥123.4702); ¥ (45.2981, 123.5471); Fan Creek endpoint(s) in: Bales Creek Unnamed (45.4809,¥123.8362); ¥ (45.2975, 123.4994); Farmer Creek (45.3712,¥123.5786); Bark Shanty Unnamed (45.5758,¥123.5226); ¥ (45.2593, 123.9074); Foland Creek Creek (45.4232,¥123.5550); Bear Creek Unnamed (45.5942,¥123.4259); ¥ (45.2508, 123.7890); Foland Creek, (45.4192,¥123.7408); Bill Creek Unnamed (45.6002,¥123.5939); ¥ West Fork (45.2519, 123.8025); George (45.3713,¥123.6386); Blue Bus Creek Unnamed (45.6151,¥123.4385); White ¥ Creek (45.2329, 123.8291); Ginger (45.4148,¥123.5949); Boundry Creek Creek (45.5181,¥123.7223); Wilson ¥ Creek (45.3283, 123.4680); Hartney (45.3493,¥123.5470); Clear Creek #1 River, Devil’s Lake Fork Creek (45.2192,¥123.8632); Horn Creek (45.4638,¥123.5571); Clear Creek #2 (45.6008,¥123.3301); Wilson River, (45.2556,¥123.9212); Lawrence Creek (45.5025,¥123.4683); Cruiser Creek North Fork (45.6679,¥123.5138); (45.1861,¥123.7852); Limestone Creek (45.4201,¥123.4753); Dougherty Slough Wilson River, North Fork, Little (45.2472,¥123.7169); Mina Creek (45.4684,¥123.7888); East Fork of (45.5283,¥123.6771); Wilson River, (45.2444,¥123.6197); Moon Creek South Fork Trask River North Fork, West Fork (45.3293,¥123.6762); North Beaver (45.3563,¥123.4752); Edwards Creek (45.6330,¥123.5879); Wilson River, Creek (45.3497,¥123.8961); Nestucca (45.3832,¥123.6676); Elkhorn Creek, North Fork, West Fork, North Fork River (45.3093,¥123.4077); Niagara Trib C (45.4080,¥123.4440); Elkhorn (45.6495,¥123.5779); Wilson River, Creek (45.1898,¥123.6637); Pheasant Creek (45.3928,¥123.4709); Gold Creek South Fork (45.5567,¥123.3965); Wolf Creek (45.2121,¥123.6366); Pollard (45.4326,¥123.7218); Green Creek Creek (45.5683,¥123.6129). Creek (45.1951,¥123.7958); Powder (45.4510,¥123.7361); Hatchery Creek (vi) Kilchis River Watershed Creek (45.2305,¥123.6974); Saling (45.4485,¥123.6623); Headquarters 1710020306. Outlet(s) = Kilchis River Creek (45.2691,¥123.8474); Sanders Camp Creek (45.3317,¥123.5072); (Lat 45.4927, Long ¥123.8615) Creek (45.2254,¥123.8959); Slick Rock Hoquarten Slough (45.4597,¥123.8480); upstream to endpoint(s) in: Clear Creek Creek (45.2683,¥123.6106); Swab Creek Joyce Creek (45.3881,¥123.6386); (45.5000,¥123.7647); Coal Creek (45.2889,¥123.7656); Testament Creek Michael Creek (45.4799,¥123.5119); (45.5004,¥123.8085); Company Creek (45.2513,¥123.5488); Three Rivers Mill Creek (45.4100,¥123.7450); Miller (45.5892,¥123.7370); French Creek (45.1785,¥123.7557); Tiger Creek Creek (45.3582,¥123.5666); Pigeon (45.6318,¥123.6926); Kilchis River,

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Little South Fork (45.5668,¥123.7178); (45.3448,¥123.9156); Sloan Creek endpoint(s) in: Adams Creek Kilchis River, North Fork (45.0718,¥123.8998); Watesco Creek (44.5206,¥123.6349); Baker Creek (45.6044,¥123.6504); Kilchis River, (45.5909,¥123.9353); Whiskey Creek (44.5230,¥123.6346); Bear Creek South Fork (45.5875,¥123.6944); Mapes (45.3839,¥123.9193). (44.5966,¥123.8299); Beaver Creek Creek (45.5229,¥123.8382); Murphy (4) Siletz/Yaquina Subbasin (44.6040,¥123.7999); Beaverdam Creek Creek (45.5320,¥123.8341); Myrtle 17100204–(i) Upper Yaquina River (44.5083,¥123.6337); Bevens Creek Creek (45.5296,¥123.8156); Sam Downs Watershed 1710020401. Outlet(s) = (44.5635,¥123.7371); Bull Creek Creek (45.5533,¥123.7144); Schroeder Yaquina River (Lat 44.6219, Long (44.5408,¥123.8162); Bull Creek Creek (45.6469,¥123.7064); Unnamed ¥123.8741) upstream to endpoint(s) in: (44.5431,¥123.8142); Bull Creek, Trib A (45.5625,¥123.7593). Bales Creek (44.6893,¥123.7503); Bales (44.5359,¥123.8276); Cougar Creek (vii) Miami River Watershed Creek, East Fork (44.6927,¥123.7363); (44.5070,¥123.6482); Cougar Creek 1710020307. Outlet(s) = Miami River Bales Creek, East Fork, Trib A (44.5861,¥123.7563); Deer Creek (Lat 45.5597, Long ¥123.8904) (44.6827,¥123.7257); Bales Creek (44.6020,¥123.7667); Devils Well Creek upstream to endpoint(s) in: Diamond (44.6610,¥123.8749); Bones Creek (44.6324,¥123.8438); Dixon Creek Creek (45.6158,¥123.8184); Hobson (44.6647,¥123.6762); Bryant Creek (44.6041,¥123.8659); Elk Creek Creek (45.5738,¥123.8970); (44.6746,¥123.7139); Buckhorn Creek (44.5075,¥123.6022); Feagles Creek ¥ Illingsworth Creek (44.6676, 123.6677); Buttermilk Creek (44.4880,¥123.7180); Feagles Creek, ¥ ¥ (45.5547, 123.8693); Miami River (44.6338, 123.6827); Buttermilk Creek, Trib B (44.5079,¥123.6909); Feagles ¥ ¥ (45.6362, 123.7533); Miami River, Trib Trib A (44.6518, 123.7173); Carlisle Creek, West Fork (44.5083,¥123.7117); ¥ ¥ S (45.6182, 123.8004); Miami River, Creek (44.6451, 123.8847); Cline Creek Grant Creek (44.5010,¥123.7363); ¥ ¥ Trib T (45.6546, 123.7463); Minich (44.6084, 123.6844); Cook Creek Harve Creek (44.5725,¥123.8025); ¥ ¥ Creek (45.5869, 123.8936); Moss Creek (44.6909, 123.8583); Crystal Creek Jackass Creek (44.5443,¥123.7790); ¥ ¥ (45.5628, 123.8319); Peterson Creek (44.6500, 123.8132); Davis Creek Johnson Creek (44.5466,¥123.6336); ¥ ¥ (45.6123, 123.8996); Prouty Creek (44.6500, 123.6587); Eddy Creek Lake Creek (44.5587,¥123.6826); ¥ ¥ (45.6304, 123.8435); Stuart Creek (44.6388, 123.7951); Felton Creek Leverage Creek (44.5536,¥123.6343); ¥ ¥ (45.6042, 123.8442); Unnamed (44.6626, 123.6502); Haxel Creek Little Creek (44.5548,¥123.6980); Little (45.6317,¥123.7906); Unnamed (44.6781,¥123.8046); Hayes Creek ¥ ¥ ¥ Wolf Creek (44.5590, 123.7165); (45.6341, 123.7900); Waldron Creek (44.6749, 123.7749); Humphrey Creek Peterson Creek (44.5576,¥123.6450); (45.5856,¥123.8483). (44.6697,¥123.6329); Klamath Creek ¥ ¥ Rail Creek (44.5135, 123.6639); Spout (viii) Tillamook Bay Watershed (44.6927, 123.8431); Little Elk Creek Creek (44.5824,¥123.6561); Sugarbowl 1710020308. Outlet(s) = Tillamook Bay (44.6234,¥123.6628); Little Elk ¥ ¥ ¥ Creek (44.5301, 123.5995); Unnamed (Lat 45.5600, Long 123.9366) Creek,Trib A (44.6196, 123.7583); (44.5048,¥123.7566); Unnamed upstream to endpoint(s) in: Douthy Little Yaquina River ¥ ¥ (44.5085, 123.6309); Unnamed Creek (45.5277, 123.8570); Electric (44.6822,¥123.6123); Lytle Creek ¥ ¥ (44.5108, 123.6249); Unnamed Creek (45.5579, 123.8925); Hall Slough (44.6440,¥123.5979); Miller Creek ¥ ¥ (44.5144, 123.6554); Unnamed (45.4736, 123.8637); Jacoby Creek (44.6055,¥123.7030); Oglesby Creek ¥ ¥ (44.5204, 123.6148); Unnamed (45.5297, 123.8665); Kilchis River (44.6421,¥123.7271); Oglesby Creek, ¥ ¥ (44.5231, 123.6714); Unnamed (45.4927, 123.8615); Larson Creek Trib A (44.6368,¥123.7100); Peterson ¥ ¥ (44.5256, 123.6804); Unnamed (45.5366, 123.8849); Miami River Creek (44.6559,¥123.7868); Randall ¥ ¥ ¥ (44.5325, 123.7244); Unnamed (45.5597, 123.8904); Patterson Creek Creek (44.6721, 123.6570); Salmon ¥ ¥ ¥ (44.5332, 123.7211); Unnamed (45.5359, 123.8732); Tillamook Bay Creek (44.6087, 123.7379); Simpson ¥ ¥ ¥ (44.5361, 123.7139); Unnamed (45.4682, 123.8802); Vaughn Creek Creek (44.6775, 123.8780); Sloop ¥ ¥ ¥ (44.5370, 123.7643); Unnamed (45.5170, 123.8516); Wilson River Creek (44.6654, 123.8595); Spilde ¥ ¥ ¥ (44.5376, 123.6176); Unnamed (45.4816, 123.8708). Creek (44.6636, 123.5856); Stony ¥ ¥ (44.5410, 123.8213); Unnamed (ix) Spring Creek/Sand Lake/ Creek (44.6753, 123.7020); Thornton ¥ ¥ (44.5504, 123.8290); Unnamed Neskowin Creek Frontal Watershed Creek (44.6923, 123.8208); Trapp ¥ ¥ (44.5530, 123.8282); Unnamed 1710020309. Outlet(s) = Crescent Lake Creek (44.6455, 123.8307); ¥ (45.6360,¥123.9405); Neskowin Creek (44.5618, 123.8431); Unnamed Twentythree Creek ¥ (45.1001,¥123.9859); Netarts Bay ¥ (44.5687, 123.8563); Unnamed (44.6887, 123.8751); Unnamed ¥ (45.4339,¥123.9512); Rover Creek ¥ (44.5718, 123.7256); Unnamed (44.6074, 123.6738); Unnamed ¥ (45.3290,¥123.9670); Sand Creek ¥ (44.5734, 123.6696); Unnamed (44.6076, 123.7067); Unnamed ¥ (45.2748,¥123.9589); Watesco Creek ¥ (44.5737, 123.6566); Unnamed (44.6077, 123.6633); Unnamed ¥ (45.5892,¥123.9477) upstream to ¥ (44.5771, 123.7027); Unnamed (44.6123, 123.6646); Unnamed ¥ endpoint(s) in: Andy Creek ¥ (44.5821, 123.8123); Unnamed (44.6188, 123.7237); Unnamed ¥ (45.2905,¥123.8744); Butte Creek ¥ (44.5840, 123.6678); Unnamed (44.6202, 123.7201); Unnamed ¥ (45.1159,¥123.9360); Crescent Lake ¥ (44.5906, 123.7871); Unnamed (44.6367, 123.7444); Unnamed ¥ (45.6320,¥123.9376); Davis Creek (44.6415,¥123.6237); Unnamed (44.5990, 123.7808); Unnamed (45.3220,¥123.9254); Fall Creek ¥ (44.5865,¥123.8521); Wolf Creek (44.6472, 123.7793); Unnamed ¥ (45.0669,¥123.9679); Hawk Creek (44.6493,¥123.6789); Unnamed (44.5873, 123.6939); Wolf Creek, Trib (45.1104,¥123.9436); Jackson Creek ¥ A (44.5862,¥123.7188); Wolf Creek, (44.6707, 123.7908); Unnamed ¥ (45.3568,¥123.9611); Jewel Creek (44.6715,¥123.6907); Unnamed Trib B (44.5847, 123.7062). (45.2865,¥123.8905); Jim Creek (44.6881,¥123.6089); Unnamed (iii) Lower Yaquina River Watershed (45.0896,¥123.9224); Lewis Creek (44.6908,¥123.7298); Wakefield Creek 1710020403. Outlet(s) = Yaquina River (45.0835,¥123.8979); Meadow Creek (44.6336,¥123.6963); Yaquina River (Lat 44.6098, Long ¥124.0818) (45.0823,¥123.9824); Neskowin Creek (44.6894,¥123.5907); Young Creek upstream to endpoint(s) in: Abbey Creek (45.0574,¥123.8812); Prospect Creek (44.6372,¥123.6027). (44.6330,¥123.8881); Babcock Creek (45.0858,¥123.9321); Reneke Creek (ii) Big Elk Creek Watershed (44.5873,¥123.9221); Beaver Creek (45.2594,¥123.9434); Rover Creek 1710020402. Outlet(s) = Elk Creek (Lat (44.6717,¥123.9799); Blue Creek (45.3284,¥123.9438); Sand Creek 44.6219, Long ¥123.8741) upstream to (44.6141,¥123.9936); Boone Slough,

VerDate Aug<31>2005 17:30 Feb 08, 2008 Jkt 214001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\11FER3.SGM 11FER3 mstockstill on PROD1PC66 with RULES3 7848 Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 / Rules and Regulations

Trib A (44.6134,¥123.9769); Depot 44.7375, Long ¥123.7917) upstream to (44.8396,¥123.8896); Unnamed Creek, Little (44.6935,¥123.9482); endpoint(s) in: Beaver Creek (44.9035,¥123.8635); Unnamed Depot Creek, Trib A (44.7288,¥123.6773); Big Rock Creek (44.9240,¥123.7913); West Fork Mill (44.6837,¥123.9420); Drake Creek (44.7636,¥123.6969); Brush Creek Creek (44.7119,¥123.9703); Wildcat (44.6974,¥123.9690); East Fork Mill (44.6829,¥123.6582); Cedar Creek Creek (44.8915,¥123.8842). Creek (44.5691,¥123.8834); Flesher (44.7366,¥123.6586); Fisher Creek (vii) Salmon River/Siletz/Yaquina Bay Slough (44.5668,¥123.9803); King (44.7149,¥123.6359); Little Rock Creek Watershed 1710020408. Outlet(s) = Slough (44.5944,¥124.0323); Little (44.7164,¥123.6155); Little Steere Salmon River (Lat 45.0474, Long Beaver Creek (44.6531,¥123.9728); Creek (44.7219,¥123.6368); Rock Creek, ¥124.0031) upstream to endpoint(s) in: McCaffery Slough (44.5659,¥124.0180); Trib A (44.7414,¥123.7508); Steere Alder Brook (45.0318,¥123.8428); Bear Mill Creek (44.5550,¥123.9064); Mill Creek (44.7336,¥123.6313); Unnamed Creek (44.9785,¥123.8580); Boulder Creek, Trib A (44.5828,¥123.8750); (44.7175,¥123.6496); William Creek Creek (45.0428,¥123.7817); Calkins Montgomery Creek (44.7391,¥123.7277). Creek (45.0508,¥123.9615); Crowley ¥ (44.5796, 123.9286); Nute Slough Creek (45.0540,¥123.9819); Curl Creek ¥ (vi) Lower Siletz River Watershed (44.6075, 123.9660); Olalla Creek (45.0150,¥123.9198); Deer Creek ¥ 1710020407. Outlet(s) = Siletz Bay (Lat (44.6810, 123.8972); Olalla Creek, Trib ¥ (45.0196,¥123.8091); Frazer Creek ¥ 44.9269, Long 124.0218) upstream to A (44.6511, 123.9034); Parker Slough (45.0096,¥123.9576); Gardner Creek ¥ endpoint(s) in: Anderson Creek (44.5889, 124.0119); Unnamed ¥ (45.0352,¥123.9024); Indian Creek ¥ (44.9311, 123.9508); Bear Creek (44.5471, 123.9557); Unnamed ¥ (45.0495,¥123.8010); Little Salmon ¥ (44.8682, 123.8891); Bentilla Creek (44.5485, 123.9308); Unnamed ¥ River (45.0546,¥123.7473); McMullen ¥ (44.7745, 123.8555); Butterfield Creek (44.5520, 123.9433); Unnamed ¥ Creek (44.9829,¥123.8682); Panther ¥ (44.8587, 123.9993); Cedar Creek (44.5528, 123.9695); Unnamed ¥ Creek (45.0208,¥123.8878); Panther ¥ (44.8653, 123.8488); Cedar Creek, Trib (44.5552, 123.9294); Unnamed D (44.8606,¥123.8696); Coon Creek Creek, North Fork (45.0305,¥123.8910); (44.5619,¥123.9348); Unnamed ¥ ¥ ¥ (44.7959, 123.8468); Dewey Creek Prairie Creek (45.0535, 123.8129); (44.5662, 123.8905); Unnamed (44.7255,¥123.9724); Drift Creek Rowdy Creek (45.0182,¥123.9751); (44.5827,¥123.9456); Unnamed ¥ ¥ ¥ (44.9385, 123.8211); Erickson Creek Salmon River (45.0269, 123.7224); (44.5877, 123.8850); Unnamed ¥ ¥ ¥ (44.9629, 123.9490); Euchre Creek Slick Rock Creek (44.9903, 123.8158); (44.6444, 123.9059); Unnamed ¥ ¥ ¥ (44.8023, 123.8687); Fowler Creek Sulphur Creek (45.0403, 123.8216); (44.6457, 123.9996); Unnamed ¥ ¥ ¥ (44.9271, 123.8440); Gordey Creek Telephone Creek (45.0467, 123.9348); (44.6530, 123.9914); Unnamed ¥ ¥ ¥ (44.9114, 123.9724); Hough Creek Toketa Creek (45.0482, 123.9088); (44.6581, 123.8947); Unnamed ¥ ¥ ¥ (44.8052, 123.8991); Jaybird Creek Trout Creek (44.9693, 123.8337); (44.6727 123.8942); Unnamed ¥ ¥ ¥ (44.7640, 123.9733); Long Prairie Unnamed (44.9912, 123.8789); (44.6831, 123.9940); West Olalla Creek ¥ ¥ ¥ Creek (44.6970, 123.7499); Long Tom Unnamed (45.0370, 123.7333); (44.6812, 123.9299); West Olalla ¥ ¥ ¥ Creek (44.7037, 123.8533); Mann Unnamed (45.0433, 123.7650); Widow Creek, Trib A (44.6649, 123.9204); ¥ ¥ ¥ Creek (44.6987, 123.8025); Mill Creek Creek (45.0373, 123.8530); Widow Wessel Creek (44.6988, 123.9863); ¥ Creek, West Fork (45.0320,¥123.8643); Wright Creek (44.5506,¥123.9250); (44.6949, 123.8967); Miller Creek ¥ Willis Creek (45.0059,¥123.9391). Wright Creek, Trib A (44.7487, 123.9733); North Creek ¥ (44.9279,¥123.8908); North Roy Creek (viii) Devils Lake/Moolack Frontal (44.5658, 123.9422); Yaquina River ¥ (44.6219,¥123.8741). (44.7916, 123.9897); Ojalla Creek Watershed 1710020409. Outlet(s) = Big (44.7489,¥123.9427); Quarry Creek Creek (Lat 44.6590, Long ¥124.0571); (iv) Middle Siletz River Watershed ¥ ¥ 1710020405. Outlet(s) = Siletz River (Lat (44.8989, 123.9360); Reed Creek Coal Creek (44.7074, 124.0615); D ¥ ¥ 44.7375, Long ¥123.7917) upstream to (44.8020, 123.8835); Reed Creek River (44.9684, 124.0172); Fogarty ¥ ¥ endpoint(s) in: Buck Creek, East Fork (44.8475, 123.9267); Roots Creek Creek (44.8395, 124.0520); Moolack ¥ ¥ (44.8410,¥123.7970); Buck Creek, (44.8300, 123.9351); South Roy Creek Creek (44.7033, 124.0622); North ¥ ¥ South Fork (44.8233,¥123.8095); Buck (44.7773, 123.9847); Sam Creek Depoe Bay Creek (44.8098, 124.0617); ¥ Creek, West Fork (44.8352,¥123.8084); (44.7086, 123.7312); Sampson Creek Schoolhouse Creek ¥ ¥ Cerine Creek (44.7478,¥123.7198); Deer (44.9089, 123.8173); Savage Creek (44.8734, 124.0401); Spencer Creek ¥ ¥ Creek (44.8245,¥123.7268); Deer Creek, (44.8021, 123.8608); Scare Creek (44.7292, 124.0582); Wade Creek ¥ ¥ Trib A (44.8178,¥123.7397); Elk Creek (44.8246, 123.9954); Schooner Creek, (44.7159, 124.0600) upstream to ¥ (44.8704,¥123.7668); Fourth of July North Fork (44.9661, 123.8793); endpoint(s) in: Big Creek Creek (44.8203,¥123.6810); Gunn Creek Schooner Creek, South Fork (44.6558,¥124.0427); Coal Creek (44.7816,¥123.7679); Holman River (44.9401,¥123.8689); Scott Creek (44.7047,¥124.0099); Devils Lake (44.8412,¥123.7707); Mill Creek, North (44.7414,¥123.8268); Sijota Creek (44.9997,¥123.9773); Fogarty Creek Fork (44.7769,¥123.7361); Mill Creek, (44.8883,¥124.0257); Siletz River (44.8563,¥124.0153); Jeffries Creek South Fork (44.7554,¥123.7276); (44.7375,¥123.7917); Skunk Creek (44.6425,¥124.0315); Moolack Creek Palmer Creek (44.7936,¥123.8344); (44.8780,¥123.9073); Smith Creek (44.6931,¥124.0150); North Depoe Bay Siletz River (44.8629,¥123.7323); (44.9294,¥123.8056); Stemple Creek Creek (44.8157,¥124.0510); Rock Creek Sunshine Creek (44.7977,¥123.6963); (44.8405,¥123.9492); Tangerman Creek (44.9869,¥123.9317); South Depoe Bay Unnamed (44.7691,¥123.7851); (44.7278,¥123.8944); Thayer Creek Creek (44.7939,¥124.0126); Salmon Unnamed (44.7747,¥123.7740); (44.7023,¥123.8256); Thompson Creek Creek (44.8460,¥124.0164); Unnamed (44.7749,¥123.7662); (44.7520,¥123.8893); Unnamed Schoolhouse Creek Unnamed (44.8118,¥123.6926); (44.7003,¥123.7669); Unnamed (44.8634,¥124.0151); South Fork Unnamed (44.8188,¥123.6995); (44.8904,¥123.8034); Unnamed Spencer Creek (44.7323,¥123.9974); Unnamed (44.8312,¥123.6983); (44.8927,¥123.8400); Unnamed Spencer Creek, North Fork Unnamed (44.8583,¥123.7573); (44.7034,¥123.7754); Unnamed (44.7453,¥124.0276); Unnamed Whiskey Creek (44.8123,¥123.6937). (44.7145,¥123.8423); Unnamed (44.8290,¥124.0318); Unnamed (v) Rock Creek/Siletz River Watershed (44.7410,¥123.8800); Unnamed (44.9544,¥123.9867); Unnamed 1710020406. Outlet(s) = Rock Creek (Lat (44.7925,¥123.9212); Unnamed (44.9666,¥123.9731); Unnamed

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(44.9774,¥123.9706); Wade Creek (44.2237,¥123.6195); Lord Creek (44.4965,¥123.9113); Trout Creek, East (44.7166,¥124.0057). (44.2411,¥123.7631); Martha Creek Fork (44.4705,¥123.9290); Unnamed (5) Alsea Subbasin 17100205—(i) (44.2822,¥123.6781); Meadow Creek (44.4995,¥123.8488); Unnamed Upper Alsea River Watershed (44.2925,¥123.6591); Phillips Creek (44.4386,¥123.9200); Unnamed 1710020501. Outlet(s) = Alsea River, (44.3398,¥123.7613); Preacher Creek (44.4409,¥123.8738); Unnamed South Fork (Lat 44.3767, Long (44.2482,¥123.7440); Prindel Creek (44.4832,¥123.9570); Unnamed ¥123.6024) upstream to endpoint(s) in: (44.2346,¥123.7849); Ryan Creek (44.4868,¥123.9340); Unnamed Alder Creek (44.4573,¥123.5188); Alsea (44.2576,¥123.7971); Summers Creek (44.4872,¥123.9518); Unnamed River, South Fork (44.3261,¥123.4891); (44.2589,¥123.7627); Swamp Creek (44.4875,¥123.9460); Unnamed Baker Creek (44.4329,¥123.5522); (44.3274,¥123.8407); Unnamed (44.4911,¥123.9227); Unnamed Banton Creek (44.3317,¥123.6020); (44.2845,¥123.7007); Unnamed (44.5187,¥123.7996); Unnamed Brown Creek (44.3151,¥123.6250); (44.2129,¥123.7919); Unnamed (44.5260,¥123.7848); Unnamed Bummer Creek (44.3020,¥123.5765); (44.2262,¥123.7982); Unnamed (44.5263,¥123.8868); Unnamed Cabin Creek (44.4431,¥123.5328); (44.2290,¥123.8559); Unnamed (44.5326,¥123.8453); Unnamed Crooked Creek (44.4579,¥123.5099); (44.2327,¥123.8344); Unnamed (44.5387,¥123.8440); Unnamed Dubuque Creek (44.3436,¥123.5527); (44.2356,¥123.8178); Unnamed (44.5488,¥123.8694); Unnamed ¥ Ernest Creek (44.4234, 123.5275); (44.2447,¥123.6460); Unnamed (44.4624,¥123.8216). ¥ Hayden Creek (44.4062, 123.5815); (44.2500,¥123.8074); Unnamed (iv) Lower Alsea River Watershed Honey Grove Creek (44.2511,¥123.9011); Unnamed ¥ 1710020504. Outlet(s) = Alsea River (Lat (44.3874, 123.5078); North Fork Alsea (44.2551,¥123.8733); Unnamed ¥ ¥ 44.4165, Long 124.0829) upstream to River (44.4527, 123.6102); Parker (44.2614,¥123.8652); Unnamed ¥ endpoint(s) in: Alsea River Creek (44.4702, 123.5978); Peak Creek (44.2625,¥123.8635); Unnamed ¥ ¥ (44.3767, 123.6024); Arnold Creek (44.3358, 123.4933); Record Creek (44.2694,¥123.8180); Unnamed ¥ ¥ (44.3922, 123.9503); Barclay Creek (44.3254, 123.6331); Seeley Creek (44.2695,¥123.7429); Unnamed ¥ ¥ (44.4055, 123.8659); Bear Creek (44.4051, 123.5177); Swamp Creek (44.2696,¥123.8497); Unnamed ¥ ¥ (44.3729, 123.9623); Bear Creek (44.3007, 123.6108); Tobe Creek ¥ ¥ ¥ (44.2752, 123.7616); Unnamed (44.3843, 123.7704); Beaty Creek (44.3273, 123.5719); Trout Creek ¥ ¥ ¥ (44.2760, 123.7121); Unnamed (44.4044, 123.6043); Benner Creek (44.3684, 123.5163); Unnamed ¥ ¥ ¥ (44.2775, 123.8895); Unnamed (44.3543, 123.7447); Brush Creek (44.3108, 123.6225); Unnamed (44.2802,¥123.7097); Unnamed ¥ (44.3698,¥123.5670); Unnamed (44.3826, 123.8537); Bull Run Creek (44.2802,¥123.8608); Unnamed (44.4745,¥123.7439); Canal Creek (44.4574,¥123.5001); Unnamed ¥ ¥ (44.2823, 123.7900); Unnamed (44.3322,¥123.9460); Canal Creek, East (44.3708, 123.5740); Unnamed (44.2853,¥123.7537); Unnamed ¥ (44.3713,¥123.5656); Unnamed Fork (44.3454, 123.9161); Carns (44.2895,¥123.9083); Unnamed Canyon (44.4027,¥123.7550); Cedar (44.3788,¥123.5528); Unnamed ¥ ¥ (44.2940, 123.7358); Unnamed Creek (44.3875,¥123.7946); Cove Creek (44.4270, 123.5492); Unnamed (44.2954,¥123.7602); Unnamed ¥ (44.4518,¥123.6236); Yew Creek (44.4403, 123.7107); Cow Creek (44.2995,¥123.7760); Unnamed (44.3620,¥123.7510); Darkey Creek (44.4581,¥123.5373); Zahn Creek ¥ ¥ (44.3024, 123.9064); Unnamed (44.3910,¥123.9927; Digger Creek (44.4381, 123.5425). (44.3066,¥123.8838); Unnamed ¥ (ii) Five Rivers/Lobster Creek (44.3906, 123.6890); Fall Creek (44.3070,¥123.8280); Unnamed ¥ Watershed 1710020502. Outlet(s) = Five (44.4527, 123.6864); Fall Creek (44.3129,¥123.7763); Unnamed ¥ Rivers (Lat 44.3584, Long ¥123.8279) (44.4661, 123.6933); George Creek (44.3214,¥123.8161); Unnamed ¥ upstream to endpoint(s) in: Alder Creek (44.3556, 123.8603); Grass Creek ¥ ¥ (44.2947,¥123.8105); Bear Creek (44.3237, 123.9020); Unnamed (44.3577, 123.8798); Hatchery Creek ¥ (44.3252,¥123.7382); Unnamed (44.3952,¥123.7269); Hatchery Creek (44.2824, 123.9123); Bear Creek ¥ (44.3588,¥123.7930); Bear Creek (44.3289, 123.8354); Unnamed (44.4121,¥123.8734); Hoover Creek ¥ (44.3336,¥123.7431); Unnamed (44.3618,¥123.8583); Lake Creek (44.2589, 123.6647); Briar Creek ¥ (44.3184,¥123.6602); Buck Creek (44.3346, 123.7721); Wilkinson Creek (44.3345,¥123.8725); Lint Creek ¥ (44.3296,¥123.7249); Wilson Creek (44.3850,¥124.0490); Maltby Creek (44.2428, 123.8989); Camp Creek ¥ (44.2685,¥123.7552); Cascade Creek (44.3085, 123.8990). (44.3833,¥123.6770); Meadow Fork (44.3193,¥123.9073); Cascade Creek, (iii) Drift Creek Watershed (44.3764,¥123.8879); Mill Creek North Fork (44.3299,¥123.8932); Cedar 1710020503. Outlet(s) = Drift Creek (Lat (44.4046,¥123.6436); Minotti Creek Creek (44.2732,¥123.7753); Cherry 44.4157, Long ¥124.0043) upstream to (44.3750,¥123.7718); Nye Creek Creek (44.3061,¥123.8140); Coal Creek endpoint(s) in: Boulder Creek (44.4326,¥123.7648); Oxstable Creek (44.2881,¥123.6484); Cook Creek (44.4434,¥123.8705); Bush Creek (44.3912,¥123.9603); Phillips Creek (44.2777,¥123.6445); Cougar Creek (44.5315,¥123.8631); Cape Horn Creek (44.3803,¥123.7780); Red Creek (44.2723,¥123.8678); Crab Creek (44.5153,¥123.7844); Cedar Creek (44.3722,¥123.9162); Risley Creek (44.2458,¥123.8750); Crazy Creek (44.4742,¥123.9699); Cougar Creek (44.4097,¥123.9380); Schoolhouse (44.2955,¥123.7927); Crooked Creek (44.4405,¥123.9144); Deer Creek Creek (44.3897,¥123.6545); Scott Creek, (44.3154,¥123.7986); Elk Creek (44.5514,¥123.8778); Drift Creek East Fork (44.4252,¥123.7897); Scott (44.3432,¥123.7969); Fendall Creek (44.4688,¥123.7859); Ellen Creek Creek, West Fork (44.4212,¥123.8225); (44.2764,¥123.7890); Five Rivers (44.4415,¥123.9413); Flynn Creek Skinner Creek (44.3585,¥123.9374); (44.2080,¥123.8025); Green River (44.5498,¥123.8520); Gold Creek Skunk Creek (44.3998,¥123.6912); (44.2286,¥123.8751); Green River, East (44.4778,¥123.8802); Gopher Creek Slide Creek (44.3986,¥123.8419); Starr Fork (44.2255,¥123.8143); Jasper Creek (44.5217,¥123.7787); Horse Creek Creek (44.4477,¥124.0130); Sudan (44.2777,¥123.7326); Little Lobster (44.5347,¥123.9072); Lyndon Creek Creek (44.3817,¥123.9717); Sulmon Creek (44.2961,¥123.6266); Lobster (44.4395,¥123.9801); Needle Branch Creek (44.3285,¥123.7008); Sulmon Creek, East Fork (44.2552,¥123.5897); (44.5154,¥123.8537); Nettle Creek Creek, North Fork (44.3421,¥123.6374); Lobster Creek, South Fork (44.4940,¥123.7845); Slickrock Creek Sulmon Creek, South Fork (44.2326,¥123.6060); Lobster Creek (44.4757,¥123.9007); Trout Creek (44.3339,¥123.6709); Swede Fork

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(44.3852,¥124.0295); Unnamed (44.3160,¥124.0030); Dawson Creek Unnamed (44.0748,¥124.0478); (44.3319,¥123.9318); Unnamed (44.2892,¥124.0133); Depew Creek Unnamed (44.0814,¥124.0464); (44.3356,¥123.9464); Unnamed (44.3395,¥123.9631); Earley Creek Unnamed (44.0958,¥124.0559); (44.3393,¥123.9360); Unnamed (44.3510,¥123.9885); Fish Creek Unnamed (44.1283,¥124.0242); (44.3413,¥123.9294); Unnamed (44.3259,¥123.9592); Glines Creek Unnamed (44.1352,¥124.0941); (44.3490,¥123.9058); Unnamed (44.3436,¥123.9756); Grass Creek Unnamed (44.1712,¥124.0558); (44.3548,¥123.6574); Unnamed (44.2673,¥123.9109); Helms Creek Unnamed (44.1715,¥124.0636); (44.3592,¥123.6363); Unnamed (44.2777,¥123.9954); Keller Creek Unnamed (44.2011,¥123.9634); (44.3597,¥123.9042); Unnamed (44.2601,¥123.9485); Little Beamer Unnamed (44.2048,¥123.9971); (44.3598,¥123.6563); Unnamed Creek (44.2993,¥124.0213); Reedy Unnamed (44.2146,¥124.0358); (44.3598,¥123.6562); Unnamed Creek (44.3083,¥124.0460); South Unnamed (44.2185,¥124.0270); (44.3600,¥123.6514); Unnamed Beamer Creek (44.2852,¥124.0325); Unnamed (44.2209,¥123.9368); Wapiti (44.3656,¥123.9085); Unnamed Stump Creek (44.2566,¥123.9624); Creek (44.1216,¥124.0448); Wildcat (44.3680,¥123.9629); Unnamed Unnamed (44.2596,¥123.9279); Creek (44.2339,¥123.9632). (44.3794,¥123.8268); Unnamed Unnamed (44.2657,¥123.9585); (viii) Big Creek/Vingie Creek (44.3800,¥123.9134); Unnamed Unnamed (44.2660,¥123.9183); Watershed 1710020508. Outlet(s) = Big ¥ (44.3814,¥123.7650); Unnamed Unnamed (44.2684,¥123.9711); Creek (Lat 44.3742, Long 124.0896) (44.3822,¥124.0555); Unnamed Unnamed (44.2837,¥123.9268); upstream to endpoint(s) in: Big Creek ¥ (44.3823,¥124.0451); Unnamed Unnamed (44.2956,¥123.9316); (44.3564, 124.0613); Dicks Fork Big ¥ (44.3989,¥123.6050); Unnamed Unnamed (44.3005,¥123.9324); Creek (44.3627, 124.0389); Reynolds ¥ (44.4051,¥124.0527); Unnamed Unnamed (44.3163,¥123.9428); Creek (44.3768, 124.0740); South Fork ¥ (44.4166,¥123.8149); Unnamed Unnamed (44.3186,¥123.9568); Big Creek (44.3388, 124.0597); ¥ (44.4537,¥123.7247); Walker Creek Unnamed (44.3259,¥123.9578); Unnamed (44.3643, 124.0355); ¥ ¥ (44.4583, 124.0271); Weist Creek Unnamed (44.3431,¥123.9711); West Unnamed (44.3662, 124.0573); ¥ ¥ (44.3967, 124.0256); West Creek Fork Williamson Creek Unnamed (44.3686, 124.0683). ¥ (44.3588, 123.9493). (44.3230,¥124.0008); Williamson Creek (6) Siuslaw Subbasin 17100206—(i) (v) Beaver Creek/Waldport Bay (44.3300,¥124.0026); Yachats River Upper Siuslaw River Watershed Watershed 1710020505. Outlet(s) = ¥ 1710020601. Outlet(s) = Siuslaw River (44.2468, 123.9329); Yachats River, ¥ Beaver Creek (Lat 44.5233, Long North Fork (44.3467,¥123.9972); (Lat 44.0033, Long 123.6545) ¥124.0734); Deer Creek upstream to endpoint(s) in: Bear Creek ¥ Yachats River, School Fork ¥ (44.5076, 124.0807); Thiel Creek (44.3145,¥123.9341). (43.8482, 123.5172); Bear Creek, Trib (44.5646,¥124.0709) upstream to A (43.8496,¥123.5059); Bierce Creek endpoint(s) in: Beaver Creek, North (vii) Cummins Creek/Tenmile Creek/ (43.8750,¥123.5559); Big Canyon Creek Fork, Trib G (44.5369,¥123.9195); Mercer Lake Frontal Watershed (43.9474,¥123.6582); Bottle Creek 1710020507. Outlet(s) = Berry Creek (43.8791,¥123.3871); Bounds Creek Beaver Creek, South Fork ¥ ¥ (Lat 44.0949, Long 124.1221); Big (43.9733,¥123.7108); Buck Creek, Trib (44.4816, 123.9853); Beaver Creek, ¥ Creek (44.1767, 124.1148); Bob Creek B (43.8198,¥123.3913); Buck Creek, South Fork, Trib A ¥ ¥ (44.2448, 124.1118); Cape Creek Trib E (43.8152,¥123.4248); Burntwood (44.4644, 124.0332); Bowers Creek ¥ ¥ (44.1336, 124.1211); Cummins Creek Creek (43.9230,¥123.5342); Cabin (44.5312, 124.0117); Bunnel Creek ¥ ¥ (44.2660, 124.1075); Rock Creek Creek (43.8970,¥123.6754); Camp (44.5178, 124.0265); Deer Creek ¥ ¥ (44.1833, 124.1149); Sutton Creek Creek (43.9154,¥123.4904); Canyon (44.5057, 124.0721); Elkhorn Creek ¥ (44.5013,¥123.9572); Elkhorn Creek (44.0605, 124.1269); Tenmile Creek Creek (43.9780,¥123.6096); Clay Creek ¥ (44.4976,¥123.9685); Lewis Creek (44.2245, 124.1083) upstream to (43.8766,¥123.5721); Collins Creek (44.5326,¥123.9532); North Fork endpoint(s) in: Bailey Creek (43.8913,¥123.6047); Conger Creek ¥ Beaver Creek (44.5149,¥123.8988); (44.1037, 124.0530); Berry Creek (43.8968,¥123.4524); Doe Creek ¥ Oliver Creek (44.4660,¥124.0471); (44.0998, 124.0885); Big Creek (43.8957,¥123.3558); Doe Hollow Creek ¥ Peterson Creek (44.5419,¥123.9738); (44.1866, 123.9781); Big Creek, South (43.8487,¥123.4603); Dogwood Creek ¥ Pumphouse Creek (44.5278,¥124.0569); Fork (44.1692, 123.9688); Big Creek, (43.8958,¥123.3811); Douglas Creek ¥ Simpson Creek (44.5255,¥124.0390); Trib A (44.1601, 124.0231); Bob Creek (43.8705,¥123.2836); Edris Creek ¥ Thiel Creek (44.5408,¥124.0254); Tracy (44.2346, 124.0235); Cape Creek (43.9224,¥123.5531); Esmond Creek ¥ Creek (44.5411,¥124.0500); Unnamed (44.1351, 124.0174); Cape Creek, North (43.8618,¥123.5772); Esmond Creek, (44.4956,¥123.9751); Unnamed Fork (44.1458,¥124.0489); Cummins Trib 1 (43.9303,¥123.6518); Esmond (44.5189,¥124.0638); Unnamed Creek (44.2557,¥124.0104); Fryingpan Creek, Trib A (43.8815,¥123.6646); (44.5225,¥123.9313); Unnamed Creek (44.1723,¥124.0401); Levage Farman Creek (43.8761,¥123.2562); (44.5256,¥123.9399); Unnamed Creek (44.0745,¥124.0588); Little Fawn Creek (43.8743,¥123.2992); Fawn (44.5435,¥124.0221); Unnamed Cummins Creek (44.2614,¥124.0851); Creek (43.9436,¥123.6088); Fryingpan (44.5461,¥124.0311); Unnamed McKinney Creek (44.2187,¥123.9985); Creek (43.8329,¥123.4241); Fryingpan (44.5472,¥124.0591); Unnamed Mercer Creek (44.0712,¥124.0796); Mill Creek (43.8422,¥123.4318); Gardner (44.5482,¥124.0249); Unnamed Creek (44.2106,¥124.0747); Quarry Creek (43.8024,¥123.2582); Haight (44.5519,¥124.0279); Unnamed Creek (44.0881,¥124.1124); Rath Creek Creek (43.8406,¥123.4862); Haskins (44.5592,¥124.0531); Worth Creek (44.0747,¥124.0901); Rock Creek Creek (43.8785,¥123.5851); Hawley (44.5013,¥124.0207). (44.1882,¥124.0310); Tenmile Creek Creek (43.8599,¥123.1558); Hawley (vi) Yachats River Watershed (44.2143,¥123.9351); Tenmile Creek, Creek, North Fork (43.8717,¥123.1751); 1710020506. Outlet(s) = Yachats River South Fork (44.2095,¥123.9607); Holland Creek (43.8775,¥123.4156); (Lat 44.3081, Long ¥124.1070) Unnamed (44.1771,¥124.0908); Jeans Creek (43.8616,¥123.4714); upstream to endpoint(s) in: Axtell Creek Unnamed (44.0606,¥124.0805); Johnson Creek (43.8822,¥123.5332); (44.3084,¥123.9915); Beamer Creek Unnamed (44.0624,¥124.0552); Kelly Creek (43.8338,¥123.1739); Kline (44.3142,¥124.0124); Bend Creek Unnamed (44.0658,¥124.0802); Creek (43.9034,¥123.6635); Leopold (44.2826,¥124.0077); Carson Creek Unnamed (44.0690,¥124.0490); Creek (43.9199,¥123.6890); Leopold

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Creek, Trib A (43.9283,¥123.6630); Letz (43.9780,¥123.4761); Panther Creek (44.2439,¥123.4648); Little Lake Creek Creek, Trib B (43.7900,¥123.3248); Lick (43.9529,¥123.3744); Pittenger Creek (44.1655,¥123.6004); McVey Creek Creek (43.8366,¥123.2695); Little (43.9713,¥123.5434); Saleratus Creek (44.0889,¥123.6875); Nelson Creek Siuslaw Creek (43.8048,¥123.3412); (43.9796,¥123.5675); Saleratus Creek, (44.1229,¥123.5558); North Fork Fish Lucas Creek (43.8202,¥123.2233); Trib A (43.9776,¥123.5797); Swamp Creek (44.1535,¥123.5437); Pontius Luyne Creek (43.9155,¥123.5068); Creek (43.9777,¥123.4197); Swing Log Creek (44.1911,¥123.5909); Pope Creek Luyne Creek, Trib A Creek (43.9351,¥123.3339); Unnamed (44.2118,¥123.5319); Post Creek (43.9179,¥123.5208); Michaels Creek (43.9035,¥123.3358); Unnamed (44.1828,¥123.5259); Stakely Canyon (43.8624,¥123.5417); Mill Creek (43.9343,¥123.3648); Unnamed (44.2153,¥123.4690); Steinhauer Creek (43.9028,¥123.6228); Norris Creek (43.9617,¥123.4507); Unnamed (44.1276,¥123.6594); Swamp Creek (43.8434,¥123.2006); North Creek (43.9668,¥123.6041); Unnamed (44.2150,¥123.5687); Swartz Creek (43.9223,¥123.5752); North Fork (43.9693,¥123.4846); Van Curen Creek (44.2304,¥123.4461); Target Canyon Siuslaw River (43.8513,¥123.2302); (43.9364,¥123.5520); Wolf Creek (44.2318,¥123.4557); Unnamed Oxbow Creek (43.8384,¥123.5433); (43.9101,¥123.3234). (44.1048,¥123.6540); Unnamed Oxbow Creek, Trib C (iii) Wildcat Creek Watershed (44.1176,¥123.5846); Unnamed (43.8492,¥123.5465); Pheasant Creek 1710020603. Outlet(s) = Wildcat Creek (44.1355,¥123.5473); Unnamed ¥ (43.9120,¥123.4247); Pheasant Creek, (Lat 44.0033, Long 123.6545) (44.1355,¥123.6125); Unnamed Trib 2 (43.9115,¥123.4411); Pugh Creek upstream to endpoint(s) in: Bulmer (44.1382,¥123.5539); Unnamed ¥ (43.9480,¥123.5940); Russell Creek Creek (44.0099, 123.5206); Cattle (44.1464,¥123.5843); Unnamed ¥ (43.8813,¥123.3425); Russell Creek, Creek (44.0099, 123.5475); Fish Creek (44.1659,¥123.5658); Unnamed ¥ Trib A (43.8619,¥123.3498); Sandy (44.0470, 123.5383); Fowler Creek (44.1725,¥123.5981); Unnamed ¥ Creek (43.7684,¥123.2441); Sandy (43.9877, 123.5918); Haynes Creek (44.1750,¥123.5914); Unnamed ¥ Creek, Trib B (43.7826,¥123.2538); (44.1000, 123.5578); Kirk Creek (44.1770,¥123.5697); Unnamed ¥ Shaw Creek (43.8817,¥123.3289); (44.0282, 123.6270); Knapp Creek (44.1782,¥123.5419); Unnamed ¥ Siuslaw River, East Trib (44.1006, 123.5801); Miller Creek (44.1798,¥123.5834); Unnamed ¥ (43.8723,¥123.5378); Siuslaw River, (44.0767, 123.6034); Pataha Creek (44.1847,¥123.5862); Unnamed (43.9914,¥123.5361); Potato Patch ¥ North Fork, Upper Trib ¥ (44.2042, 123.5700); Unnamed (43.8483,¥123.2275); Smith Creek Creek (43.9936, 123.5812); Salt Creek (44.2143,¥123.5873); Unnamed ¥ (44.0386,¥123.5021); Shady Creek ¥ (43.8045, 123.3665); South Fork ¥ (44.2258, 123.4493); Unnamed Siuslaw River (43.7831,¥123.1569); (44.0647, 123.5838); Shultz Creek (44.2269,¥123.5478); Unnamed ¥ (44.0220,¥123.6320); Unnamed ¥ Trail Creek (43.9142, 123.6241); ¥ (44.2328, 123.5285); Unnamed Tucker Creek (43.8159,¥123.1604); (43.9890, 123.5468); Unnamed (44.2403,¥123.5358); Unnamed ¥ (44.0210,¥123.4805); Unnamed ¥ Unnamed (43.7796, 123.2019); ¥ (44.2431, 123.5105); Unnamed Unnamed (43.7810,¥123.2818); (44.0233, 123.4996); Unnamed (44.2437,¥123.5739); Unnamed ¥ (44.0242,¥123.4796); Unnamed ¥ Unnamed (43.8278, 123.2610); ¥ (44.2461, 123.5180); Unnamed Unnamed (43.8519,¥123.2773); (44.0253, 123.4963); Unnamed (44.2484,¥123.5501); Unnamed ¥ (44.0283,¥123.5311); Unnamed ¥ Unnamed (43.8559, 123.5520); ¥ (44.2500, 123.5691); Unnamed Unnamed (43.8670,¥123.6022); (44.0305, 123.5275); Unnamed (44.2573,¥123.4736); Unnamed (44.0479,¥123.6199); Unnamed Unnamed (43.8876,¥123.5194); (44.2670,¥123.4840); Wheeler Creek (44.0604,¥123.5624); Unnamed Unnamed (43.8902,¥123.5609); (44.1232,¥123.6778). (44.0674,¥123.6075); Unnamed Unnamed (43.8963,¥123.4171); (44.0720,¥123.5590); Unnamed (v) Deadwood Creek Watershed Unnamed (43.8968,¥123.4731); (44.0839,¥123.5777); Unnamed 1710020605. Outlet(s) = Deadwood Unnamed (43.8992,¥123.4033); ¥ (44.0858,¥123.5787); Unnamed Creek (Lat 44.0949, Long 123.7594) Unnamed (43.9006,¥123.4637); (44.0860,¥123.5741); Unnamed upstream to endpoint(s) in: Alpha Creek Unnamed (43.9030,¥123.6434); ¥ (44.0865,¥123.5935); Unnamed (44.1679, 123.6951); Bear Creek Unnamed (43.9492,¥123.6924); ¥ (44.0945,¥123.5838); Unnamed (44.1685, 123.6627); Bear Creek, South Unnamed (43.9519,¥123.6886); ¥ (44.0959,¥123.5902); Walker Creek Fork (44.1467, 123.6743); Buck Creek ¥ ¥ Unnamed (43.9784, 123.6815); (44.0469,¥123.6312); Walker Creek, (44.2003, 123.6683); Deadwood Creek ¥ ¥ Unnamed (43.9656, 123.7145); Trib C (44.0418,¥123.6048); Wildcat (44.2580, 123.6885); Deadwood Creek, ¥ ¥ Whittaker Creek (43.9490, 123.7004); Creek (43.9892,¥123.4308); Wildcat West Fork (44.1946, 123.8023); Deer Whittaker Creek, Trib B ¥ Creek (44.1655,¥123.7229); Failor ¥ Creek, Trib ZH (43.9924, 123.4975); (43.9545, 123.7121). Wildcat Creek, Trib ZI Creek (44.1597,¥123.8003); Fawn Creek (ii) Wolf Creek Watershed (44.0055,¥123.4681). (44.2356,¥123.7244); Karlstrom Creek 1710020602. Outlet(s) = Wolf Creek (Lat (iv) Lake Creek Watershed (44.1776,¥123.7133); Misery Creek 43.9548, Long ¥123.6205) upstream to 1710020604. Outlet(s) = Lake Creek (Lat (44.1758,¥123.7950); North Fork endpoint(s) in: Bill Lewis Creek 44.0556, Long ¥123.7968) upstream to Panther Creek (44.2346,¥123.7362); (43.9357,¥123.5708); Cabin Creek endpoint(s) in: Chappell Creek Panther Creek (44.2273,¥123.7558); (43.9226,¥123.4081); Eames Creek (44.1158,¥123.6921); Conrad Creek Raleigh Creek (44.1354,¥123.6926); (43.9790,¥123.4352); Eames Creek, Trib (44.1883,¥123.4918); Druggs Creek Rock Creek (44.1812,¥123.6683); C (43.9506,¥123.4371); Elkhorn Creek (44.1996,¥123.5926); Fish Creek Schwartz Creek (44.1306,¥123.7258); (43.9513,¥123.3934); Fish Creek (44.1679,¥123.5149); Green Creek Unnamed (44.2011,¥123.7273); (43.9238,¥123.3872); Gall Creek (44.1389,¥123.7930); Greenleaf Creek Unnamed (44.1806,¥123.7693); (43.9865,¥123.5187); Gall Creek, Trib 1 (44.1766,¥123.6391); Hula Creek Unnamed (44.1845,¥123.6824); (43.9850,¥123.5285); Grenshaw Creek (44.1202,¥123.7087); Johnson Creek Unnamed (44.1918,¥123.7521); (43.9676,¥123.4645); Lick Creek (44.1037,¥123.7327); Lake Creek Unnamed (44.1968,¥123.7664); (43.9407,¥123.5796); Oat Creek, Trib A (44.2618,¥123.5148); Lamb Creek Unnamed (44.2094,¥123.6674); (43.9566,¥123.5052); Oat Creek, Trib C (44.1401,¥123.5991); Leaver Creek Unnamed (44.2149,¥123.7639); (43.9618,¥123.4902); Oat Creek (44.0754,¥123.6285); Leibo Canyon Unnamed (44.2451,¥123.6705);

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Unnamed (44.2487,¥123.7137); (44.0211,¥124.0663); Unnamed (44.0974,¥123.8615); Turner Creek Unnamed (44.2500,¥123.6933). (44.0258,¥124.0594); Unnamed (44.0096,¥123.7607); Unnamed (vi) Indian Creek/Lake Creek (44.0304,¥124.0129); Unnamed (43.9301,¥124.0434); Unnamed Watershed 1710020606. Outlet(s) = (44.0327,¥124.0670); Unnamed (43.9596,¥124.0337); Unnamed Indian Creek (Lat 44.0808, Long (44.0337,¥124.0070); Unnamed (43.9303,¥124.0487); Unnamed ¥123.7891) upstream to endpoint(s) in: (44.0342,¥124.0056); Unnamed (43.9340,¥124.0529); Unnamed Cremo Creek (44.1424,¥123.8144); Elk (44.0370,¥124.0391); Unnamed (43.9367,¥124.0632); Unnamed Creek (44.1253,¥123.8821); Gibson (44.0419,¥124.0013); Unnamed (43.9374,¥124.0442); Unnamed Creek (44.1548,¥123.8132); Herman (44.0441,¥124.0321); Unnamed (43.9481,¥124.0530); Unnamed Creek (44.2089,¥123.8220); Indian (44.0579,¥124.0077); Unnamed (43.9501,¥124.0622); Unnamed Creek (44.2086,¥123.9171); Indian (44.0886,¥124.0192); Unnamed (43.9507,¥124.0533); Unnamed Creek, North Fork (44.2204,¥123.9016); (44.0892,¥123.9925); Unnamed (43.9571,¥124.0658); Unnamed Indian Creek, West Fork (44.0941,¥123.9131); Unnamed (43.9576,¥124.0491); Unnamed (44.2014,¥123.9075); Long Creek (44.0976,¥124.0033); Unnamed (43.9587,¥124.0988); Unnamed (44.1395,¥123.8800); Maria Creek (44.1046,¥123.9032); Unnamed (43.9601,¥124.0927); Unnamed (44.1954,¥123.9219); Pyle Creek (44.1476,¥123.8959); Unnamed (43.9615,¥124.0527); Unnamed ¥ (44.1792, 123.8623); Rogers Creek (44.1586,¥123.9150); West Branch (43.9618,¥124.0875); Unnamed ¥ (44.1851, 123.9397); Smoot Creek North Fork Siuslaw River (43.9624,¥123.7499); Unnamed ¥ (44.1562, 123.8449); Taylor Creek (44.1616,¥123.9616); Wilhelm Creek (43.9662,¥123.7639); Unnamed ¥ (44.1864, 123.8115); Unnamed (44.1408,¥123.9774). (43.9664,¥123.9252); Unnamed (44.1643,¥123.8993); Unnamed (viii) Lower Siuslaw River Watershed (43.9718,¥124.0389; Unnamed (44.1727,¥123.8154); Unnamed 1710020608. Outlet(s) = Siuslaw River (43.9720,¥124.0075); Unnamed (44.1795,¥123.9180); Unnamed (Lat 44.0160, Long ¥124.1327) (43.9751,¥124.0090); Unnamed (44.1868,¥123.9002); Unnamed upstream to endpoint(s) in: Barber Creek (43.9784,¥124.0191); Unnamed (44.1905,¥123.8633); Unnamed (44.0294,¥123.7598); Beech Creek (43.9796,¥123.9150); Unnamed (44.1967,¥123.8872); Unnamed (44.0588,¥123.6980); Berkshire Creek (43.9852,¥123.9802); Unnamed (44.2088,¥123.8381); Unnamed (44.0508,¥123.8890); Bernhardt Creek (43.9878,¥123.9845); Unnamed (44.2146,¥123.8528); Unnamed (43.9655,¥123.9532); Brush Creek (43.9915,¥123.9732); Unnamed (44.2176,¥123.8462); Unnamed ¥ ¥ (44.0432,¥123.7798); Brush Creek, East (43.9938, 123.9930); Unnamed (44.2267, 123.8912); Velvet Creek ¥ (43.9942,¥123.8547); Unnamed (44.1295,¥123.8087). Fork (44.0414, 123.7782); Cedar Creek (43.9696,¥123.9304); Cleveland Creek (43.9943,¥123.9891); Unnamed (vii) North Fork Siuslaw River ¥ (43.9954,¥124.1185); Unnamed Watershed 1710020607. Outlet(s) = (44.0773, 123.8343); Demming Creek ¥ (43.9956,¥123.7074); Unnamed North Fork Siuslaw River (Lat 43.9719, (43.9643, 124.0313); Dinner Creek ¥ (43.9995,¥123.9825); Unnamed Long ¥124.0783) upstream to (44.0108, 123.8069); Divide Creek ¥ (44.0023,¥123.7317); Unnamed endpoint(s) in: Billie Creek (44.0516, 123.9421); Duncan Inlet ¥ (44.0210,¥123.7874); Unnamed (44.0971,¥124.0362); Cataract Creek (44.0081, 123.9921); Hadsall Creek ¥ (44.0240,¥123.8989); Unnamed (44.0854,¥123.9497); Cedar Creek (43.9846, 123.8221); Hadsall Creek, ¥ (44.0366,¥123.7363); Unnamed (44.1534,¥123.9045); Condon Creek Trib D (43.9868, 123.8500); Hadsall ¥ (44.0506,¥123.9068); Waite Creek (44.1138,¥123.9984); Coon Creek Creek, Trib E (43.9812, 123.8359); ¥ (43.9886,¥123.7220); Walker Creek (44.0864,¥124.0318); Deer Creek Hanson Creek (44.0364, 123.9628); ¥ (44.0566,¥123.9129); Wilson Creek (44.1297,¥123.9475); Drew Creek Hoffman Creek (43.9808, 123.9412); ¥ ¥ (44.1239,¥123.9801); Drew Creek Hollenbeck Creek (44.0321, 123.8672); (44.0716, 123.8792). ¥ (44.1113,¥123.9854); Elma Creek Hood Creek (43.9996, 123.7995); (7) Siltcoos Subbasin 17100207—(i) (44.1803,¥123.9434); Hanson Creek Karnowsky Creek (43.9847,¥123.9658); Waohink River/Siltcoos River/ (44.0776,¥123.9328); Haring Creek Knowles Creek (43.9492,¥123.7315); Tahkenitch Lake Frontal Watershed (44.0307,¥124.0462); Lawrence Creek Knowles Creek, Trib L 1710020701. Outlet(s) = Siltcoos River (44.1710,¥123.9504); Lindsley Creek (43.9717,¥123.7830); Lawson Creek, (Lat 43.8766, Long ¥124.1548); (44.0389,¥124.0591); McLeod Creek Trib B (43.9612,¥123.9659); Meadow Tahkenitch Creek (43.8013,¥124.1689) (44.1050,¥123.8805); Morris Creek Creek (44.0311,¥123.6490); Munsel upstream to endpoint(s) in: Alder Creek (44.0711,¥124.0308); Porter Creek Creek (44.0277,¥124.0788); Old Man (43.8967,¥124.0114); Bear Creek (44.1490,¥123.9641); Russell Creek Creek (44.0543,¥123.8022); Pat Creek (43.9198,¥123.9293); Bear Creek Trib (44.0680,¥123.9848); Sam Creek (44.0659,¥123.7245); Patterson Creek (43.9030,¥123.9881); Bear Creek, South (44.1751,¥123.9527); Slover Creek (43.9984,¥124.0234); Rice Creek Fork (43.9017,¥123.9555); Bell Creek (44.0213,¥124.0531); South Russell (44.0075,¥123.8519); Rock Creek (43.8541,¥123.9718); Billy Moore Creek Creek (44.0515,¥123.9840); Taylor (44.0169,¥123.6512); South Fork Waite (43.8876,¥123.9604); Carle Creek Creek (44.1279,¥123.9052); Uncle Creek (43.9929,¥123.7105); San Antone (43.9015,¥124.0210); Carter Creek Creek (44.1080,¥124.0174); Unnamed Creek (44.0564,¥123.6515); Shoemaker (43.9457,¥124.0123); Dismal Swamp (43.9900,¥124.0784); Unnamed Creek (44.0669,¥123.8977); Shutte (43.8098,¥124.0871); Elbow Lake Creek (43.9907,¥124.0759); Unnamed Creek (43.9939,¥124.0339); Siuslaw (43.7886,¥124.1490); Fiddle Creek (43.9953,¥124.0514); Unnamed River (44.0033,¥123.6545); Skunk (43.9132,¥123.9164); Fivemile Creek (43.9958,¥124.0623); Unnamed Hollow (43.9830,¥124.0626); Smith (43.8297,¥123.9776); Grant Creek (43.9999,¥124.0694); Unnamed Creek (44.0393,¥123.6674); Spencer (43.9373,¥124.0278); Harry Creek (44.0018,¥124.0596); Unnamed Creek (44.0676,¥123.8809); Sulphur (43.8544,¥124.0220); Henderson (44.0050,¥124.0556); Unnamed Creek (43.9822,¥123.8015); Sweet Canyon (43.8648,¥123.9654); (44.0106,¥124.0650); Unnamed Creek (43.9463,¥123.9016); Sweet Henderson Creek (43.9427,¥123.9704); (44.0135,¥124.0609); Unnamed Creek, Trib A (44.0047,¥123.8907); John Sims Creek (43.8262,¥124.0792); (44.0166,¥124.0371); Unnamed Sweet Creek, Trib D King Creek (43.8804,¥124.0300); Lane (44.0194,¥124.0631); Unnamed (43.9860,¥123.8811); Thompson Creek Creek (43.8437,¥124.0765); Leitel Creek

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(43.8181,¥124.0200); Mallard Creek (43.9237,¥124.0155); Unnamed Cooper Creek (43.3420,¥123.1650); (43.7775,¥124.0852); Maple Creek (43.9249,¥124.0074); Unnamed Cooper Creek (43.3797,¥123.2807); (43.9314,¥123.9316); Maple Creek, (43.9274,¥124.0759); Unnamed Dixon Creek (43.2770,¥123.2911); North Prong (43.9483,¥123.9510); (43.9275,¥124.0308); Unnamed French Creek (43.3349,¥123.0801); Miles Canyon (43.8643,¥124.0097); (43.9360,¥124.0892); Unnamed Huntley Creek (43.3363,¥123.1340); Miller Creek (43.9265,¥124.0663); Mills (43.9365,¥124.0297); Unnamed North Umpqua River Creek (43.8966,¥124.0397); Morris (43.9424,¥124.0981); Unnamed (43.3322,¥123.0025); Oak Creek Creek (43.8625,¥123.9541); Perkins (43.9438,¥124.0929); Unnamed (43.2839,¥123.2063); Short Creek Creek (43.8257,¥124.0448); Rider Creek (43.9453,¥124.0752); Unnamed (43.3204,¥123.3315); Sutherlin Creek (43.9210,¥123.9700); Roache Creek (43.9518,¥123.9953). (43.3677,¥123.2114); Unnamed (43.9087,¥124.0049); Schrum Creek (8) North Fork Umpqua Subbasin (43.3285,¥123.2016). (43.9194,¥124.0492); Schultz Creek 17100301—(i) Boulder Creek Watershed (9) South Fork Umpqua Subbasin (43.9245,¥123.9371); Stokes Creek 1710030106. Outlet(s) = Boulder Creek 17100302—(i) Jackson Creek Watershed ¥ (43.9161,¥123.9984); Tenmile Creek (Lat 43.3036, Long 122.5272) 1710030202. Outlet(s) = Jackson Creek ¥ upstream to endpoint(s) in: Boulder (Lat 42.9695, Long ¥122.8795) (43.9419, 123.9447); Unnamed ¥ (43.8928,¥124.0461); Unnamed Creek (Lat 43.3138, Long 122.5247) upstream to endpoint(s) in: Beaver (ii) Middle North Umpqua Watershed ¥ (43.7726,¥124.1021); Unnamed Creek (Lat 42.9084, Long 122.7924); 1710030107. Outlet(s) = North Umpqua (43.7741,¥124.1313); Unnamed Jackson Creek (Lat 42.9965, Long River (Lat 43.3322, Long ¥123.0025) ¥ (43.7756,¥124.1363); Unnamed 122.6459); Ralph Creek (Lat 42.9744, upstream to endpoint(s) in: Calf Creek Long ¥122.6976); Squaw Creek (Lat (43.7824,¥124.1342); Unnamed (43.2852,¥122.6229); Copeland Creek 42.9684, Long ¥122.6913);Tallow Creek (43.7829,¥124.0852); Unnamed (43.2853,¥122.5325); Deception Creek (Lat 42.98814, Long ¥122.6965); (43.7837,¥124.0812); Unnamed ¥ ¥ (43.2766, 122.5850); Dry Creek Whiskey Creek (Lat 42.9593, Long (43.7849, 124.0734); Unnamed ¥ ¥ ¥ (43.2967, 122.6016); Honey Creek 122.7262); Winters Creek (Lat (43.7862, 124.0711); Unnamed ¥ ¥ ¥ (43.3181, 122.9414); Limpy Creek 42.9380, Long 122.8271). (43.7865, 124.1107); Unnamed (43.3020,¥122.6795); North Umpqua (ii) Middle South Umpqua River (43.7892,¥124.1163); Unnamed ¥ ¥ River (43.3027, 122.4938); Panther Watershed 1710030203. Outlet(s) = (43.7897, 124.0608); Unnamed Creek (43.3019,¥122.6801); Steamboat South Umpqua River (Lat 42.9272, Long (43.7946,¥124.0477); Unnamed ¥ ¥ ¥ Creek (43.3491, 122.7281); Susan 122.9504) upstream to endpoint(s) in: (43.7964, 124.0643); Unnamed Creek (43.3044,¥122.9058); Williams Boulder Creek (43.1056,¥122.7379); (43.8015,¥124.0450); Unnamed ¥ ¥ ¥ Creek (43.3431, 122.7724). Budd Creek (43.0506, 122.8185); (43.8078, 124.0340); Unnamed (iii) Rock Creek/North Umpqua River ¥ ¥ Deadman Creek (43.0049, 122.8967); (43.8095, 124.1362); Unnamed Watershed 1710030110. Outlet(s) = ¥ ¥ Dompier Creek (42.9553, 122.9166); (43.8112, 124.0608); Unnamed Rock Creek (Lat 43.3322, Long ¥ ¥ Dumont Creek (43.0719, 122.8224); (43.8152, 124.0981); Unnamed ¥123.0025) upstream to endpoint(s) in: Francis Creek (43.0202,¥122.8231); ¥ (43.8153, 124.1314); Unnamed Conley Creek (43.3594,¥122.9663); South Umpqua River ¥ (43.8172, 124.0752); Unnamed Harrington Creek (43.4151,¥122.9550); (43.0481,¥122.6998); Sam Creek ¥ (43.8231, 124.0853); Unnamed Kelly Creek (43.3592,¥122.9912); (43.0037,¥122.8412); Slick Creek ¥ (43.8321, 124.0128); Unnamed McComas Creek (43.3536,¥122.9923); (43.0986,¥122.7867). (43.8322,¥124.0069); Unnamed Miller Creek (43.3864,¥122.9371); Rock (iii) Elk Creek/South Umpqua (43.8323,¥124.1016); Unnamed Creek (43.4247,¥122.9055); Rock Creek, Watershed 1710030204. Outlet(s) = Elk (43.8330,¥124.0217); Unnamed East Fork (43.3807,¥122.8270); Rock Creek (Lat 42.9272, Long ¥122.9504) (43.8361,¥124.1209); Unnamed Creek, East Fork, North Fork upstream to endpoint(s) in: Brownie (43.8400,¥123.9802); Unnamed (43.4147,¥122.8512); Shoup Creek Creek (Lat 42.8304, Long ¥122.8746); (43.8407,¥124.1051); Unnamed (43.3882,¥122.9674); Unnamed Callahan Creek (Lat 42.8778, Long (43.8489,¥124.0634); Unnamed (43.3507,¥122.9741); Woodstock Creek ¥122.9609); Camp Creek (Lat 42.8667, (43.8500,¥123.9852); Unnamed (43.3905,¥122.9258). Long ¥122.8958); Dixon Creek (Lat (43.8504,¥124.1248); Unnamed (iv) Little River Watershed 42.8931, Long ¥122.9152); Drew Creek (43.8504,¥124.0024); Unnamed 1710030111. Outlet(s) = Little River (Lat (Lat 42.8682, Long ¥122.9358); Flat (43.8507,¥124.0511); Unnamed 43.2978, Long ¥123.1012) upstream to Creek (Lat 42.8294, Long ¥122.8250); (43.8589,¥124.1231); Unnamed endpoint(s) in: Buck Peak Creek Joe Hall Creek (Lat 42.8756, Long (43.8596,¥124.0438); Unnamed (43.1762,¥123.0479); Buckhorn Creek ¥122.8202); Tom Creek (Lat 42.8389, (43.8605,¥124.1211); Unnamed (43.2592,¥123.1072); Cavitt Creek Long ¥122.8959). (43.8669,¥124.0717); Unnamed (43.1464,¥122.9758); Copperhead (iv) South Umpqua River Watershed (43.8670,¥124.0327); Unnamed Creek (43.1626,¥123.0595); Emile 1710030205. Outlet(s) = South Umpqua (43.8707,¥124.0689); Unnamed Creek (43.2544,¥122.8849); Evarts River (Lat 42.9476, Long ¥123.3368) (43.8802,¥124.0605); Unnamed Creek (43.2087,¥123.0133); Jim Creek upstream to endpoint(s) in: Alder Creek (43.8862,¥124.0570); Unnamed (43.2257,¥123.0592); Little River (42.9109,¥123.2991); Canyon Creek (43.8913,¥123.9380); Unnamed (43.2065,¥122.8231); McKay Creek (42.8798,¥123.2410); Canyon Creek, (43.8919,¥124.0771); Unnamed (43.2092,¥123.0356); Tuttle Creek West Fork (42.8757,¥123.2734); (43.8976,¥124.0725); Unnamed (43.1440,¥122.9813); White Rock Creek Canyon Creek, West Fork, Trib A (43.9032,¥124.0651); Unnamed (43.1540,¥123.0379); Wolf Creek (42.8834,¥123.2947); Coffee Creek (43.9045,¥124.0548); Unnamed (43.2179,¥122.9461). (42.9416,¥122.9993); Comer Brook (43.9057,¥124.0606); Unnamed (v) Lower North Umpqua River (42.9082,¥123.2908); Days Creek (43.9065,¥124.0656); Unnamed Watershed 1710030112. Outlet(s) = (43.0539,¥123.0012); Days Creek, Trib (43.9105,¥124.0453); Unnamed North Umpqua River (Lat 43.2682, Long 1 (43.0351,¥123.0532); Doe Hollow (43.9106,¥124.0203); Unnamed ¥123.4448) upstream to endpoint(s) in: (42.9805,¥123.0812); Fate Creek (43.9202,¥124.0786); Unnamed Bradley Creek (43.3350,¥123.1025); (42.9943,¥123.1028); Green Gulch (43.9209,¥124.0734); Unnamed Clover Creek (43.2490,¥123.2604); (43.0040,¥123.1276); Hatchet Creek

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(42.9251,¥122.9757); Jordan Creek Mountain Creek (42.8639,¥123.7787); Fork (43.1157,¥123.2306); Harrison (42.9224,¥123.3086); Lavadoure Creek No Sweat Creek (42.8024,¥123.7081); Young Brook (43.0610,¥123.2850); (42.9545,¥123.1049); Lick Creek Panther Creek (42.8596,¥123.7506); Lally Creek (43.0890,¥123.0597); Lee (42.9213,¥123.0261); May Creek Slaughter Pen Creek Creek (43.1333,¥123.1477); Letitia (43.0153,¥123.0725); Morgan Creek (42.8224,¥123.6565); Sweat Creek Creek (43.0710,¥123.0907); Little Lick (42.9635,¥123.2409); O’Shea Creek (42.8018,¥123.6995); Walker Creek (43.0492,¥123.2234); Long Wiley Creek (42.9256,¥123.2486); Perdue Creek (42.8228,¥123.7614); Wallace Creek (43.0584,¥123.1067); Louis Creek (43.0038,¥123.1192); Poole Creek (42.8311,¥123.7696); West Fork Cow (43.1165,¥123.0783); North Myrtle (42.9321,¥123.1106); Poole Creek, East Creek (42.8329,¥123.7733). Creek (43.1486,¥123.1219); Riser Creek Fork (42.9147,¥123.0956); South (vii) Lower Cow Creek Watershed (43.1276,¥123.0703); Rock Creek Umpqua River (42.9272,¥122.9504); 1710030209. Outlet(s) = Cow Creek (Lat (43.0729,¥123.2620); South Myrtle Shively Creek (42.8888,¥123.1635); 42.9476, Long ¥123.3368) upstream to Creek (43.0850,¥123.0103); School Shively Creek, East Fork endpoint(s) in: Ash Creek Hollow (43.0563,¥123.1753); Short (42.8793,¥123.1194); Small Creek (42.9052,¥123.3385); Boulder Creek Wiley Creek (43.0589,¥123.1158); Slide (42.9631,¥123.2519); St. John Creek (42.8607,¥123.5494); Brush Creek Creek (43.1110,¥123.1078); Unnamed (42.9598,¥123.0514); Stinger Gulch (42.8526,¥123.4369); Buck Creek (43.1138,¥123.1721); Weaver Creek Creek (42.9950,¥123.1851); Stouts (42.8093,¥123.4979); Buck Creek (43.1102,¥123.0576). Creek, East Fork (42.9090,¥123.0424); (42.9347,¥123.5163); Cattle Creek (x) Ollala Creek/Lookingglass Stouts Creek, West Fork (42.8751,¥123.5374); Cedar Gulch Watershed 1710030212. Outlet(s) = (42.8531,¥123.0167); Sweat Creek (42.8457,¥123.5038); Council Creek Lookingglass Creek (Lat 43.1172, Long (42.9293,¥123.1899); Wood Creek (42.8929,¥123.4366); Cow Creek ¥123.4273) upstream to endpoint(s) in: (43.0048,¥123.1486). (42.8114,¥123.5947); Darby Creek Archambeau Creek (v) Middle Cow Creek Watershed (42.8553,¥123.6123); Doe Creek (43.2070,¥123.5329); Bear Creek 1710030207. Outlet(s) = Cow Creek (Lat (42.9333,¥123.5057); Gravel Creek (43.1233,¥123.6382); Berry Creek 42.8114, Long ¥123.5947) upstream to (42.8596,¥123.4598); Iron Mountain (43.0404,¥123.5543); Bushnell Creek endpoint(s) in: Bear Creek Creek (42.9035,¥123.5175); Island (43.0183,¥123.5289); Byron Creek, East (42.8045,¥123.3635); Booth Gulch Creek (42.8957,¥123.4749); Jerry Creek Fork (43.0192,¥123.4939); Byron Creek, (42.7804,¥123.2282); Bull Run Creek (42.9517,¥123.4009); Little Dads Creek North Fork (43.0326,¥123.4792); Coarse (42.7555,¥123.2366); Clear Creek (42.8902,¥123.5655); Martin Creek Gold Creek (43.0291,¥123.5742); (42.8218,¥123.2610); Cow Creek (42.8080,¥123.4763); Middle Creek, Flournoy Creek (43.2227,¥123.5560); (42.8487,¥123.1780); Dads Creek South Fork (42.8298,¥123.3870); Little Muley Creek (42.7650,¥123.5401); East Fork Panther Creek (42.8417,¥123.4492); (43.0950,¥123.6247); Lookingglass Whitehorse Creek (42.7925,¥123.1448); Peavine Creek (42.8275,¥123.4610); Creek (43.1597,¥123.6015); McNabb Fortune Branch (42.8051,¥123.2971); Russell Creek (42.9094,¥123.3797); Salt Creek (43.0545,¥123.4984); Muns Creek Hogum Creek (42.7574,¥123.1853); Creek (42.9462,¥123.4830); Shoestring (43.0880,¥123.6333); Olalla Creek Lawson Creek (42.7896,¥123.3752); Creek (42.9221,¥123.3613); Smith (42.9695,¥123.5914); Perron Creek Little Bull Run Creek Creek (42.8489,¥123.4765); Smith (43.0960,¥123.4904); Porter Creek (42.7532,¥123.2479); McCullough Creek (42.9236,¥123.5482); Table Creek (43.1381,¥123.5569); Sheilds Creek Creek (42.7951,¥123.4421); Mynatt (42.9114,¥123.5695); Union Creek (43.0640,¥123.6189); Tenmile Creek Creek (42.8034,¥123.2828); Panther (42.8769,¥123.5853); Unnamed (43.1482,¥123.6537); Tenmile Creek, Creek (42.7409,¥123.4990); Perkins (42.8891,¥123.4080). North Fork (43.1260,¥123.6069); Creek (42.7331,¥123.4997); Quines (viii) Middle South Umpqua River Thompson Creek (42.9860,¥123.5140); Creek (42.7278,¥123.2396); Rattlesnake Watershed 1710030210. Outlet(s) = Willingham Creek (42.9600,¥123.5814). Creek (42.7106,¥123.4774); Riffle Creek South Umpqua River (Lat 43.1172, Long (xi) Lower South Umpqua River (42.7575,¥123.6260); Section Creek ¥123.4273) upstream to endpoint(s) in: Watershed 1710030213. Outlet(s) = (42.7300,¥123.4373); Skull Creek Adams Creek (43.0724,¥123.4776); South Umpqua River (Lat 43.2682, Long (42.7527,¥123.5779); Starveout Creek Barrett Creek (43.0145,¥123.4451); ¥123.4448) upstream to endpoint(s) in: (42.7541,¥123.1953); Stevens Creek Clark Brook (43.0980,¥123.2897); East Callahan Creek (43.2291,¥123.5355); (42.7255,¥123.4835); Susan Creek Willis Creek (43.0151,¥123.3845); Judd Damotta Brook (43.2030,¥123.2987); (42.8035,¥123.5762); Swamp Creek Creek (42.9852,¥123.4060); Kent Creek Deer Creek, North Fork (42.7616,¥123.3518); Tennessee Gulch (43.0490,¥123.4792); Lane Creek (43.2166,¥123.1437); Deer Creek, South (42.7265,¥123.2591); Totten Creek (42.9704,¥123.4001); Porter Creek Fork (43.1875,¥123.1722); Deer Creek, (42.7448,¥123.4610); Unnamed (43.0444,¥123.4597); Rice Creek South Fork, Trib 1 (42.7964,¥123.4200); Unnamed (43.0181,¥123.4779); Richardson Creek (43.1576,¥123.2393); Deer Creek, South (42.8101,¥123.3150); Whitehorse Creek (43.0766,¥123.2881); South Umpqua Fork, Middle Fork (43.1625,¥123.1413); (42.7772,¥123.1532); Wildcat Creek River (42.9476,¥123.3368); Squaw Doerner Creek (43.2370,¥123.5153); (42.7738,¥123.2378); Windy Creek Creek (43.0815,¥123.4688); Van Dine Elgarose Creek (43.2747,¥123.5105); (42.8221,¥123.3296); Wood Creek Creek (43.0326,¥123.3473); West Willis Marsters Creek (43.1584,¥123.4489); (42.8141,¥123.4111); Woodford Creek Creek (43.0172,¥123.4355). Melton Creek (43.1294,¥123.2173); (42.7458,¥123.3180). (ix) Myrtle Creek Watershed Roberts Creek (43.1124,¥123.2831); (vi) West Fork Cow Creek Watershed 1710030211. Outlet(s) = North Myrtle South Umpqua River 1710030208. Outlet(s) = West Fork Cow Creek (Lat 43.0231, Long ¥123.2951) (43.1172,¥123.4273); Stockel Creek Creek (Lat 42.8118, Long ¥123.6006) upstream to endpoint(s) in: Ben Branch (43.2205,¥123.4392); Tucker Creek upstream to endpoint(s) in: Bear Creek Creek (43.0544,¥123.1618); Big Lick (43.1238,¥123.2378); Unnamed (42.7662,¥123.6741); Bobby Creek (43.0778,¥123.2175); Bilger Creek (43.2184,¥123.1709); Willow Creek (42.8199,¥123.7196); Elk Valley Creek (43.1118,¥123.2372); Buck Fork Creek (43.2543,¥123.5143). (42.8681,¥123.7133); Elk Valley Creek, (43.1415,¥123.0831); Cedar Hollow (10) Umpqua Subbasin 17100303(i) East Fork (42.8698,¥123.6812); Goat (43.0096,¥123.2297); Frozen Creek Upper Umpqua River Watershed Trail Creek (42.8002,¥123.6828); Gold (43.1089,¥123.1929); Frozen Creek, Left 1710030301. Outlet(s) = Umpqua River

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(Lat 43.6329, Long ¥123.5662) (43.4474,¥123.1460); Middle Fork Creek (43.6664,¥123.2703); Parker upstream to endpoint(s) in: Bear Creek South Fork Calapooya Creek Creek (43.6823,¥123.4178); Pass Creek (43.3202,¥123.6118); Bear Creek (43.4772,¥122.9952); Markam Creek (43.7527,¥123.1528); Pheasant Creek (43.5436,¥123.4481); Bottle Creek (43.3751,¥123.1479); Marsh Creek (43.7758,¥123.2099); Rock Creek (43.4060,¥123.5043); Brads Creek (43.5223,¥123.3348); Mill Creek (43.7759,¥123.2730); Saddle Butte (43.5852,¥123.4651); Camp Creek (43.4927,¥123.1315); Norton Creek Creek (43.7214,¥123.5219); Salt Creek (43.2969,¥123.5361); Case Knife Creek (43.5046,¥123.3736); Pine Tree Creek (43.6796,¥123.2213); Sand Creek (43.4288,¥123.6665); Cedar Creek (43.4179,¥123.0688); Pollock Creek (43.7709,¥123.2912); Shingle Mill (43.5360,¥123.5969); Cougar Creek (43.5326,¥123.2685); Salt Creek Creek (43.5314,¥123.1308); Simpson (43.3524,¥123.6166); Doe Creek (43.5161,¥123.2504); Salt Lick Creek Creek (43.6629,¥123.2553); Smith (43.5311,¥123.4259); Fitzpatrick Creek (43.4510,¥123.1168); Slide Creek Creek (43.6851,¥123.3179); Squaw (43.5819,¥123.6308); Galagher Canyon (43.3926,¥123.0919); Timothy Creek Creek (43.6010,¥123.4284); Taylor (43.4708,¥123.4394); Heddin Creek (43.4862,¥123.0896); Unnamed Creek (43.7642,¥123.2712); Thief Creek (43.5909,¥123.6466); Hubbard Creek (43.4469,¥123.4268); Unnamed (43.6527,¥123.1459); Thistleburn Creek (43.2526,¥123.5544); Leonard Creek (43.4481,¥123.4283); Unnamed (43.6313,¥123.4332); Unnamed (43.4448,¥123.5402); Little Canyon (43.4483,¥123.4134); Unnamed (43.5851,¥123.3101); Walker Creek Creek (43.4554,¥123.4560); Little Wolf (43.4658,¥122.9899); Unnamed (43.5922,¥123.1707); Ward Creek Creek (43.4232,¥123.6633); Little Wolf (43.4707,¥122.9896); Unnamed (43.7486,¥123.2023); Wehmeyer Creek Creek, Trib D (43.4052,¥123.6477); Lost (43.4908,¥123.0703); Unnamed (43.6823,¥123.2404); Wilson Creek Creek (43.4355,¥123.4902); Martin (43.5173,¥123.0564); Wheeler Canyon (43.5699,¥123.2681); Wise Creek Creek (43.5539,¥123.4633); McGee (43.4840,¥123.3631); White Creek (43.6679,¥123.2772); Yoncalla Creek Creek (43.5125,¥123.5632); Mehl Creek (43.4637,¥123.0451); Williams Creek (43.5563,¥123.2833). (43.5491,¥123.6541); Mill Creek (43.4703,¥123.4096). (iv) Middle Umpqua River Watershed 1710030304. Outlet(s) = Umpqua River (43.3178,¥123.5095); Miner Creek (iii) Elk Creek Watershed 1710030303. (Lat 43.6556, Long ¥123.8752) (43.4518,¥123.6764); Panther Canyon Outlet(s) = Elk Creek (Lat 43.6329, Long upstream to endpoint(s) in: Burchard (43.5541,¥123.3484); Porter Creek ¥123.5662) upstream to endpoint(s) in: Creek (43.6680,¥123.7520); Butler (43.4348,¥123.5530); Rader Creek Adams Creek (43.5860,¥123.2202); ¥ Creek (43.6325,¥123.6867); Cedar (43.5203, 123.6517); Rader Creek, Trib Allen Creek (43.6375,¥123.3731); ¥ A (43.4912,¥123.5726); Umpqua River ¥ Creek (43.7027, 123.6451); House Andrews Creek (43.5837, 123.3920); Creek (43.7107,¥123.6378); Little Mill (43.2682,¥123.4448); Unnamed Asker Creek (43.6290,¥123.2668); Bear ¥ Creek (43.6729,¥123.8252); Little (43.5781, 123.6170); Unnamed Creek (43.6195,¥123.3703); Bear Creek ¥ (43.5630,¥123.6080); Unnamed ¥ Paradise Creek (43.6981, 123.5630); (43.7119, 123.1757); Bennet Creek Paradise Creek (43.7301,¥123.5738); (43.4011,¥123.6474); Unnamed (43.6158,¥123.1558); Big Tom Folley ¥ Patterson Creek (43.7076,¥123.6977); (43.4119, 123.6172); Unnamed Creek (43.7293,¥123.4053); Big Tom ¥ (43.4212,¥123.6398); Unnamed Purdy Creek (43.6895, 123.7712); Folley Creek, North Fork Sawyer Creek (43.6027,¥123.6717); (43.4640,¥123.6734); Unnamed (43.7393,¥123.4917); Big Tom Folley ¥ Scott Creek (43.6885,¥123.6966); (43.4940, 123.6166); Unnamed Creek, Trib A (43.7231,¥123.4465); ¥ (43.5765,¥123.4710); Waggoner Creek Umpqua River (43.6329, 123.5662); Billy Creek, East Fork Unnamed (43.6011,¥123.7084); (43.5282,¥123.6072); Whiskey Camp ¥ (43.5880, 123.3263); Billy Creek, South Unnamed (43.5998,¥123.6803); Creek (43.4587,¥123.6755); Williams ¥ Fork (43.5725, 123.3603); Blue Hole Unnamed (43.6143,¥123.6674); Creek (43.5952,¥123.5222); Wolf Creek ¥ Creek (43.5677, 123.4405); Brush Unnamed (43.6453,¥123.7619); (43.4707,¥123.6655). ¥ Creek (43.5662, 123.4140); Buck Creek Unnamed (43.6461,¥123.8064); ¥ (ii) Calapooya Creek Watershed (43.6981, 123.1818); Cowan Creek Unnamed (43.6923,¥123.7534); ¥ 1710030302. Outlet(s) = Calapooya (43.5915, 123.2615); Cox Creek Unnamed (43.7068,¥123.6109); ¥ ¥ Creek (Lat 43.3658, Long 123.4674) (43.6356, 123.1794); Curtis Creek Unnamed (43.7084,¥123.7156); ¥ upstream to endpoint(s) in: Bachelor (43.6839, 123.1734); Dodge Canyon Unnamed (43.7098,¥123.6300); ¥ ¥ Creek (43.5480, 123.2062); Banks (43.6225, 123.2509); Elk Creek Unnamed (43.7274,¥123.6026); ¥ ¥ Creek (43.3631, 123.1755); Beaty Creek (43.5097, 123.1620); Ellenburg Creek Weatherly Creek (43.7205,¥123.6680); ¥ ¥ (43.4406, 123.0392); Boyd Creek (43.7378, 123.3296); Fitch Creek Wells Creek (43.6859,¥123.7946). (43.4957,¥123.1573); Brome Creek (43.6986,¥123.3152); Five Point (v) Upper Smith River Watershed (43.4016,¥123.0490); Burke Creek Canyon (43.5707,¥123.3526); Flagler 1710030306. Outlet(s) = Smith River (43.3987,¥123.4463); Buzzard Roost Creek (43.5729,¥123.3382); Green (Lat 43.7968, Long ¥123.7565) Creek (43.4584,¥123.0990); Cabin Creek (43.6851,¥123.4688); Green upstream to endpoint(s) in: Amberson Creek (43.5421,¥123.3294); Calapooya Ridge Creek (43.5920,¥123.3958); Halo Creek (43.7787,¥123.4944); Argue Creek, North Fork (43.4867,¥123.0280); Creek (43.5990,¥123.2658); Hancock Creek (43.7656,¥123.6959); Beaver Coon Creek (43.4218,¥123.4349); Coon Creek (43.6314,¥123.5188); Hanlon Creek (43.7865,¥123.6949); Beaver Creek (43.5245,¥123.0429); Dodge Creek (43.6190,¥123.2785); Creek (43.8081,¥123.4041); Big Creek Canyon Creek (43.4362,¥123.4420); Hardscrabble Creek (43.7372,¥123.7112); Blackwell Creek Driver Valley Creek (43.7111,¥123.3517); Huntington Creek (43.8145,¥123.7460); Blind Creek (43.4327,¥123.1960); Field Creek (43.5882,¥123.2808); Jack Creek (43.7518,¥123.6551); Bum Creek (43.4043,¥123.0917); Gassy Creek (43.7071,¥123.3819); Johnny Creek (43.8044,¥123.5802); Carpenter Creek (43.3862,¥123.1133); Gilbreath Creek (43.7083,¥123.3972); Johnson Creek (43.7947,¥123.7258); Clabber Creek (43.4218,¥123.0931); Gossett Creek (43.6830,¥123.2715); Lancaster Creek (43.7919,¥123.5878); Clearwater Creek (43.4970,¥123.1045); Haney Creek (43.6442,¥123.4361); Lane Creek (43.8138,¥123.7375); Cleghorn Creek (43.4763,¥123.1086); Hinkle Creek (43.5483,¥123.1221); Lees Creek (43.7508,¥123.4997); Clevenger Creek (43.4230,¥123.0382); Hog Creek (43.6610,¥123.1888); Little Sand Creek (43.7826,¥123.4087); Coldwater Creek (43.4767,¥123.2516); Jeffers Creek (43.7655,¥123.2778); Little Tom Folley (43.8316,¥123.7232); Deer Creek (43.4522,¥123.1047); Long Valley Creek Creek (43.6959,¥123.5393); McClintock (43.8109,¥123.5362); Devils Club Creek

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(43.7916,¥123.6148); Elk Creek (43.8087,¥123.8202); Beaver Creek Unnamed (43.8661,¥123.9136); (43.8004,¥123.4347); Halfway Creek (43.8983,¥123.7559); Black Creek Unnamed (43.8688,¥123.7994); (43.7412,¥123.5112); Hall Creek (43.7544,¥123.9967); Brainard Creek Unnamed (43.8831,¥123.8534); (43.7732,¥123.3836); Haney Creek (43.7448,¥124.0105); Buck Creek Unnamed (43.8883,¥123.7157); (43.8355,¥123.5006); Hardenbrook (43.7719,¥123.7823); Cassady Creek Unnamed (43.8906,¥123.7759); Creek (43.7943,¥123.5660); Hefty Creek (43.7578,¥123.9744); Cedar Creek Unnamed (43.8916,¥123.8765); (43.7881,¥123.3954); Herb Creek (43.8541,¥123.8562); Chapman Creek Unnamed (43.8922,¥123.8144); (43.8661,¥123.6782); Jeff Creek (43.8181,¥123.9380); Coon Creek Unnamed (43.8953,¥123.8772); (43.8079,¥123.6033); Marsh Creek (43.8495,¥123.7857); Crane Creek Unnamed (43.8980,¥123.7865); (43.7831,¥123.6185); Mosetown Creek (43.8592,¥123.7739); Edmonds Creek Unnamed (43.8997,¥123.7993); (43.7326,¥123.6613); Mosetown Creek, (43.8257,¥123.9000); Eslick Creek Unnamed (43.8998,¥123.7197); East Fork (43.7185,¥123.6433); North (43.8153,¥123.9894); Eslick Creek, East Unnamed (43.9015,¥123.8386); ¥ Sister Creek (43.8492,¥123.5771); Fork (43.8082,¥123.9583); Franz Creek Unnamed (43.9015, 123.8949); ¥ Panther Creek (43.8295,¥123.4464); (43.7542,¥124.1006); Frarey Creek Unnamed (43.9023, 123.8241); ¥ Pearl Creek (43.8263,¥123.5350); (43.7683,¥124.0615); Georgia Creek Unnamed (43.9048, 123.8316); ¥ Peterson Creek (43.7575,¥123.3947); (43.8373,¥123.8911); Gold Creek Unnamed (43.9075, 123.7208); ¥ Plank Creek (43.7635,¥123.3980); (43.9002,¥123.7470); Harlan Creek Unnamed (43.9079, 123.8263); Vincent Redford Creek (43.7878,¥123.3520); ¥ Creek (43.7035,¥123.7882); Wassen (43.8635, 123.9319); Holden Creek ¥ Rock Creek (43.7733,¥123.6222); (43.7901,¥124.0178); Hudson Slough Creek (43.7419, 123.8905); West Russell Creek (43.8538,¥123.6971); ¥ Branch North Fork Smith River (43.7725, 124.0736); Johnson Creek ¥ South Sister Creek (43.8291,¥123.9582); Johnson Creek (43.9113, 123.8958). (vii) Lower Umpqua River Watershed (43.8366,¥123.5611); Salmonberry (43.8480,¥123.8209); Joyce Creek 1710030308. Outlet(s) = Umpqua River Creek (43.8085,¥123.4482); Scare Creek (43.7892,¥124.0356); Joyce Creek, West (Lat 43.6696, Long ¥124.2025) (43.7631,¥123.7260); Sleezer Creek Fork (43.7708,¥124.0457); Kentucky upstream to endpoint(s) in: Alder Creek (43.7535,¥123.3711); Slideout Creek Creek (43.9313,¥123.8153); Middle (43.6310,¥124.0483); Bear Creek (43.7831,¥123.5685); Smith River, Fork of North Fork Smith River (43.7053,¥123.9529); Butler Creek Little South Fork (43.7392,¥123.4583); (43.8780,¥123.7687); Moore Creek (43.7157,¥124.0059); Charlotte Creek Smith River, South Fork (43.8523,¥123.8931); Moore Creek ¥ (43.7345,¥123.3843); Smith River ¥ (43.6320, 123.9307); Dean Creek (43.8661, 123.7558); Murphy Creek (43.6214,¥123.9740); Dry Creek (43.7529,¥123.3310); Spring Creek (43.7449,¥123.9527); Noel Creek ¥ (43.6369,¥124.0595); Franklin Creek (43.7570, 123.3276); Summit Creek (43.7989,¥124.0109); Otter Creek ¥ (43.7985,¥123.3487); Sweden Creek ¥ (43.6850, 123.8659); Hakki Creek (43.7216, 123.9626); Otter Creek, (43.6711,¥124.0161); Indian Charlie (43.8618,¥123.6468); Tip Davis Creek North Fork (43.7348,¥123.9597); ¥ Creek (43.6611,¥123.9404); Johnson (43.7739, 123.3301); Twin Sister Creek Paxton Creek (43.8847,¥123.9004); ¥ (43.8348,¥123.7168); Unnamed ¥ Creek (43.6711, 123.9760); Koepke Peach Creek (43.8963, 123.8599); Slough (43.6909,¥124.0294); Little (43.7234,¥123.6308); Unnamed Perkins Creek (43.7362,¥123.9151); ¥ Franklin Creek (43.6853,¥123.8863); (43.7397, 123.6984); Unnamed Railroad Creek (43.8086,¥123.8998); ¥ (43.7433,¥123.4673); Unnamed Luder Creek (43.6423, 123.9046); Smith River, West Fork Miller Creek (43.6528,¥124.0140); Oar (43.7492,¥123.6911); Unnamed ¥ (43.9102, 123.7073); Smith River Creek (43.6620,¥124.0289); Providence (43.7495,¥123.5832); Unnamed ¥ (43.7968, 123.7565); Spencer Creek Creek (43.7083,¥124.1289); Scholfield (43.7527,¥123.5210); Unnamed ¥ (43.8429, 123.8321); Spencer Creek, Creek (43.6253,¥124.0112); Umpqua (43.7533,¥123.7046); Unnamed ¥ West Fork (43.8321, 123.8685); River (43.6556,¥123.8752); Unnamed (43.7541,¥123.4805); Unnamed ¥ Sulphur Creek (43.8512, 123.9422); (43.6359,¥123.9572); Unnamed (43.7708,¥123.4819); Unnamed ¥ Unnamed (43.7031, 123.7463); (43.6805,¥124.1146); Unnamed (43.7726,¥123.5039); Unnamed ¥ Unnamed (43.7106, 123.7666); (43.6904,¥124.0506); Unnamed (43.7748,¥123.6044); Unnamed ¥ Unnamed (43.7203, 123.7601); (43.6940,¥124.0340); Unnamed (43.7775,¥123.6927); Unnamed ¥ Unnamed (43.7267, 123.7396); (43.7069,¥123.9824); Unnamed ¥ ¥ (43.7830, 123.5900); Unnamed Unnamed (43.7286, 123.7798); (43.7242,¥123.9369); Winchester Creek ¥ ¥ (43.7921, 123.6335); Unnamed Unnamed (43.7322, 124.0585); (43.6657,¥124.1247); Wind Creek, ¥ ¥ (43.7955, 123.7013); Unnamed Unnamed (43.7325, 123.7337); South Fork (43.6346,¥124.0897). (43.7993,¥123.6171); Unnamed Unnamed (43.7470,¥123.7416); ¥ (11) Coos Subbasin 17100304—(i) (43.8020, 123.6739); Unnamed Unnamed (43.7470,¥123.7711); South Fork Coos Watershed (43.8034,¥123.6959); Unnamed Unnamed (43.7569,¥124.0844); ¥ 1710030401. Outlet(s) = South Fork (43.8133, 123.5893); Unnamed Unnamed (43.7606,¥124.0853); Coos (Lat 43.3905, Long ¥123.9634) ¥ (43.8197, 123.4827); Unnamed Unnamed (43.7623,¥124.0753); upstream to endpoint(s) in: Beaver Slide ¥ (43.8263, 123.5810); Unnamed Unnamed (43.7669,¥124.0766); Creek (43.2728,¥123.8472); Bottom ¥ (43.8360, 123.6951); Unnamed Unnamed (43.7734,¥124.0674); Creek (43.3751,¥123.7065); Bottom ¥ (43.8519, 123.5910); Unnamed Unnamed (43.7855,¥124.0076); Creek, North Fork (43.3896,¥123.7264); ¥ (43.8535, 123.6357); Unnamed Unnamed (43.7877,¥123.9936); Buck Creek (43.2476,¥123.8023); Burnt ¥ (43.8541, 123.6155); Unnamed Unnamed (43.8129,¥123.9743); Creek (43.2567,¥123.7834); Cedar ¥ (43.8585, 123.6867); Upper Johnson Unnamed (43.8212,¥123.8777); Creek (43.3388,¥123.6303); Cedar ¥ Creek (43.7509, 123.5426); West Fork Unnamed (43.8258,¥123.8192); Creek, Trib E (43.3423,¥123.6749); ¥ Halfway Creek (43.7421, 123.6119); Unnamed (43.8375,¥123.9631); Cedar Creek, Trib F Yellow Creek (43.8193,¥123.5545). Unnamed (43.8424,¥123.7925); (43.3330,¥123.6523); Coal Creek (vi) Lower Smith River Watershed Unnamed (43.8437,¥123.7989); (43.3426,¥123.8685); Eight River Creek 1710030307. Outlet(s) = Smith River Unnamed (43.8601,¥123.7630); (43.2638,¥123.8568); Fall Creek (Lat 43.7115, Long ¥124.0807) Unnamed (43.8603,¥123.8155); (43.2535,¥123.7106); Fall Creek upstream to endpoint(s) in: Bear Creek Unnamed (43.8655,¥123.8489); (43.4106,¥123.7512); Fivemile Creek

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(43.2341,¥123.6307); Gods Thumb (iii) Lakeside Frontal Watershed Creek (43.3841,¥123.9991); Mettman Creek (43.3440,¥123.7013); Gooseberry 1710030403. Outlet(s) = Tenmile Creek Creek (43.4574,¥124.1293); Millicoma Creek (43.2452,¥123.7081); Hatcher (43.5618,¥124.2308) upstream to River (43.4242,¥124.0288); Monkey Creek (43.3021,¥123.8370); Hog Ranch endpoint(s) in: Adams Creek Ranch Gulch (43.3392,¥124.1458); Creek (43.2754,¥123.8125); Lake Creek (43.5382,¥124.1081); Alder Creek Morgan Creek (43.3460,¥124.0318); (43.2971,¥123.6354); Little Cow Creek (43.6012,¥124.0272); Alder Gulch North Slough (43.5032,¥124.1408); (43.1886,¥123.6133); Lost Creek (43.5892,¥124.0665); Benson Creek Noble Creek (43.2387,¥124.1665); (43.2325,¥123.5769); Lost Creek, Trib A (43.5813,¥124.0086); Big Creek Packard Creek (43.4058,¥124.0211); (43.2224,¥123.5961); Mink Creek (43.6085,¥124.0128); Blacks Creek Palouse Creek (43.5123,¥124.0667); (43.3068,¥123.8515); Panther Creek (43.6365,¥124.1188); Clear Creek Panther Creek (43.2733,¥124.1222); (43.2593,¥123.6401); Shotgun Creek (43.6040,¥124.1871); Hatchery Creek Pony Slough (43.4078,¥124.2307); (43.2920,¥123.7623); Susan Creek (43.5275,¥124.0761); Johnson Creek Rogers Creek (43.3831,¥124.0370); Ross (43.2720,¥123.7654); Tioga Creek (43.5410,¥124.0018); Murphy Creek Slough (43.3027,¥124.1781); Salmon (43.2110,¥123.7786); Unnamed (43.6243,¥124.0534); Noble Creek Creek (43.3618,¥123.9816); Seaman (43.2209,¥123.7789); Unnamed (43.5897,¥124.0347); Parker Creek Creek (43.3634,¥124.0111); Seelander (43.2305,¥123.8360); Unnamed (43.6471,¥124.1246); Roberts Creek Creek (43.2872,¥124.1176); (43.2364,¥123.7818); Unnamed (43.5557,¥124.0264); Saunders Creek Shinglehouse Slough (43.2548,¥123.8569); Unnamed (43.5417,¥124.2136); Shutter Creek (43.3154,¥124.2225); Smith Creek (43.2713,¥123.8320); Unnamed (43.5252,¥124.1398); Swamp Creek (43.3579,¥124.1051); Snedden Creek (43.2902,¥123.6662); Unnamed (43.5550,¥124.1948); Unnamed (43.3372,¥124.2177); Southport Slough (43.3168,¥123.6491); Unnamed (43.5203,¥124.0294); Unnamed (43.2981,¥124.2194); Stock Slough (43.3692,¥123.8320); Unnamed (43.6302,¥124.1460); Unnamed (43.3277,¥124.1195); Storey Creek (43.3698,¥123.8321); Unnamed (43.6353,¥124.1411); Unnamed (43.3238,¥124.2969); Sullivan Creek (43.3806,¥123.8327); Unnamed (43.6369,¥124.1515); Unnamed (43.4718,¥124.0872); Talbott Creek (43.3846,¥123.8058); Unnamed (43.6466,¥124.1511); Unnamed (43.2839,¥124.2954); Theodore Johnson (43.3887,¥123.7927); Unnamed (43.5081,¥124.0382); Unnamed Creek (43.2756,¥124.3457); Unnamed (43.3651,¥123.7073); Wilson Creek (43.6353,¥124.16770; Wilkins Creek (43.5200,¥124.1812); Unnamed (43.2083,¥123.6691). (43.6304,¥124.0819); Winter Creek (43.2274,¥124.3236); Unnamed (ii) Millicoma River Watershed (43.6533,¥124.1333). (43.2607,¥124.2984); Unnamed 1710030402. Outlet(s) = West Fork (iv) Coos Bay Watershed 1710030404. (43.2772,¥124.3246); Unnamed Millicoma River (Lat 43.4242, Long Outlet(s) = Big Creek (Lat 43.3326, Long (43.2776,¥124.3148); Unnamed ¥124.0288) upstream to endpoint(s) in: ¥124.3739); Coos Bay (43.2832,¥124.1532); Unnamed Bealah Creek (43.4271,¥123.8445); (43.3544,¥124.3384) upstream to (43.2888,¥124.1962); Unnamed Buck Creek (43.5659,¥123.9765); endpoint(s) in: Bear Creek (43.2893,¥124.3406); Unnamed Cougar Creek (43.5983,¥123.8788); (43.5048,¥124.1059); Bessey Creek (43.2894,¥124.2034); Unnamed Crane Creek (43.5545,¥123.9287); (43.3844,¥124.0253); Big Creek (43.2914,¥124.2917); Unnamed Dagget Creek (43.4862,¥124.0557); (43.2834,¥124.3374), Big Creek (43.2942,¥124.1027); Unnamed Darius Creek (43.4741,¥123.9407); Deer (43.3980,¥123.9396); Big Creek, Trib A (43.2984,¥124.2847); Unnamed Creek (43.6207,¥123.9616); Deer Creek, (43.2999,¥124.3711); Big Creek, Trib B (43.3001,¥124.3022); Unnamed Trib A (43.6100,¥123.9761); Deer (43.2854,¥124.3570); Blossom Gulch (43.3034,¥124.2001); Unnamed Creek, Trib B (43.6191,¥123.9482); (43.3598,¥124.2410); Boatman Gulch (43.3051,¥124.2031); Unnamed Devils Elbow Creek (43.3445,¥124.2483); Boone Creek (43.3062,¥124.2030); Unnamed (43.4439,¥124.0608); East Fork (43.2864,¥124.1762); Cardwell Creek (43.3066,¥124.3674); Unnamed Millicoma River (43.4204,¥123.8330); (43.2793,¥124.1277); Catching Creek (43.3094,¥124.1947); Unnamed Elk Creek (43.5441,¥123.9175); Fish (43.2513,¥124.1586); Coalbank Creek (43.3129,¥124.1208); Unnamed Creek (43.6015,¥123.8968); Fox Creek (43.3154,¥124.2503); Coos Bay (43.3149,¥124.1347); Unnamed (43.4189,¥123.9459); Glenn Creek (43.3566,¥124.1592); Daniels Creek (43.3149,¥124.1358); Unnamed (43.4799,¥123.9325); Hidden Creek (43.3038,¥124.0725); Davis Creek (43.3149,¥124.1358); Unnamed (43.5646,¥123.9235); Hodges Creek (43.2610,¥124.2633); Day Creek (43.3169,¥124.0638); Unnamed (43.4348,¥123.9889); Joes Creek (43.3129,¥124.2888); Deton Creek (43.3224,¥124.2390); Unnamed (43.5838,¥123.9787); Kelly Creek (43.4249,¥124.0771); Echo Creek (43.3356,¥124.1542); Unnamed (43.5948,¥123.9036); Knife Creek (43.3797,¥124.1529); Elliot Creek (43.3356,¥124.1526); Unnamed (43.6163,¥123.9310); Little Matson (43.3037,¥124.2670); Farley Creek (43.3357,¥124.1510); Unnamed Creek (43.4375,¥123.8890); Marlow (43.3146,¥124.3415); Ferry Creek (43.3357,¥124.1534); Unnamed Creek (43.4779,¥123.9815); Matson (43.2628,¥124.1728); Goat Creek (43.3368,¥124.1509); Unnamed Creek (43.4489,¥123.9191); Otter Creek (43.2700,¥124.2109); Haywood Creek (43.3430,¥124.2352); Unnamed (43.5935,¥123.9729); Panther Creek (43.3067,¥124.3419); Hendrickson (43.3571,¥124.2372); Unnamed (43.5619,¥123.9038); Rainy Creek Creek (43.3907,¥124.0594); Isthmus (43.3643,¥124.0474); Unnamed (43.4293,¥124.0400); Rodine Creek Slough (43.2622,¥124.2049); Joe Ney (43.3741,¥124.0577); Unnamed (43.4434,¥123.9789); Schumacher Slough (43.3382,¥124.2958); John B (43.4126,¥124.0599); Unnamed Creek (43.4842,¥124.0380); Totten Creek (43.2607,¥124.2814); Johnson (43.4203,¥123.9824); Unnamed Creek (43.4869,¥124.0457); Trout Creek Creek (43.4043,¥124.1389); Kentuck (43.4314,¥124.0998); Unnamed (43.5398,¥123.9814); Unnamed Creek (43.4556,¥124.0894); Larson (43.4516,¥124.1023); Unnamed (43.4686,¥124.0143); Unnamed Creek (43.4930,¥124.0764); Laxstrom (43.4521,¥124.1110); Unnamed (43.5156,¥123.9366); Unnamed Gulch (43.3372,¥124.1350); Lillian (43.5345,¥124.1946); Vogel Creek (43.5396,¥123.9373); Unnamed Creek (43.3550,¥124.1330); Mart Davis (43.3511,¥124.1206); Wasson Creek (43.5450,¥123.9305); West Fork Creek (43.3911,¥124.0927); Matson (43.2688,¥124.3368); Willanch Creek Millicoma River (43.5617,¥123.8788). Creek (43.3011,¥124.1161); McKnight (43.4233,¥124.1061); Willanch Creek,

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Trib A (43.4032,¥124.1169); Wilson (43.0136,¥124.2318); Woodward Creek (43.2439,¥123.9275); Unnamed Creek (43.2652,¥124.1281); Winchester (42.9023,¥124.0658). (43.2444,¥124.0868); Unnamed Creek (43.2145,¥124.3116); Winchester (iii) East Fork Coquille Watershed (43.2530,¥124.0848); Unnamed Creek, Trib E (43.2463,¥124.3067); 1710030504. Outlet(s) = East Fork (43.2582,¥124.0794); Unnamed Woodruff Creek (43.4206,¥123.9746); Coquille River (Lat 43.1065, Long (43.2584,¥123.8846); Unnamed Wren Smith Creek ¥124.0761) upstream to endpoint(s) in: (43.2625,¥124.0474); Unnamed (43.3131,¥124.0649). Bills Creek (43.1709,¥123.9244); China (43.2655,¥123.9269); Unnamed ¥ (12) Coquille Subbasin 17100305—(i) Creek (43.1736, 123.9086); East Fork (43.2676,¥124.0367); Vaughns Creek ¥ Middle Fork Coquille Watershed Coquille River (43.1476, 123.8936); Elk (43.2378,¥123.9106); Whitley Creek ¥ 1710030502. Outlet(s) = Middle Fork Creek (43.1312, 123.9621); Hantz (43.2899,¥124.0115); Wimer Creek ¥ Coquille River (Lat 43.0340, Long Creek (43.1832, 123.9713); South Fork (43.1303,¥124.0640); Wood Creek ¥ ¥124.1161) upstream to endpoint(s) in: Elk Creek (43.1212, 123.9200); Steel (43.1392,¥124.1274); Wood Creek, ¥ Anderson Creek (43.0087,¥123.9445); Creek (43.1810, 123.9354); Unnamed North Fork (43.1454,¥124.1211). ¥ Axe Creek (43.0516,¥123.9468); Bear (43.0908, 124.0361); Unnamed ¥ (v) Lower Coquille Watershed Creek (43.0657,¥123.9284); Belieu (43.0925, 124.0495); Unnamed ¥ 1710030506. Outlet(s) = Coquille River Creek (43.0293,¥123.9470); Big Creek (43.0976, 123.9705); Unnamed (Lat 43.1237, Long ¥124.4261) ¥ (43.1006,¥124.0052); Unnamed (43.0991, 123.8983); Brownson Creek ¥ upstream to endpoint(s) in: Alder Creek (43.0879,¥123.9583); Endicott Creek (43.1071, 123.9163); Unnamed (43.1385,¥124.2697); Bear Creek ¥ (43.1655,¥123.9078); Unnamed ¥ (43.0401, 124.0710); Fall Creek ¥ (43.0411, 124.2893); Beaver Creek ¥ (43.1725, 123.9881); Weekly Creek ¥ (43.0514, 123.9910); Indian Creek ¥ (43.2249, 124.1923); Beaver Creek ¥ (43.0944, 124.0271); Yankee Run ¥ (43.0203, 124.0842); Little Rock Creek ¥ (43.2525, 124.2456); Beaver Slough, ¥ (43.1517, 124.0483); Yankee Run, Trib ¥ (42.9913, 123.8335); McMullen Creek ¥ Trib A (43.2154, 124.2731); Bill Creek (43.0220,¥124.0366); Middle Fork C (43.1626, 124.0162). ¥ (iv) North Fork Coquille Watershed (43.0256, 124.3126); Budd Creek Coquille River (42.9701,¥123.7621); ¥ 1710030505. Outlet(s) = North Fork (43.2011, 124.1921); Calloway Creek Myrtle Creek (42.9642,¥124.0170); ¥ Coquille River (Lat 43.0805, Long (43.2060, 124.1684); Cawfield Creek Rasler Creek (42.9518,¥123.9643); Rock ¥ ¥124.1405) upstream to endpoint(s) in: (43.1839, 124.1372); China Creek Creek (42.9200,¥123.9073); Rock Creek ¥ Alder Creek (43.2771,¥123.9207); Blair (43.2170, 124.2076); Cold Creek (43.0029,¥123.8440); Salmon Creek ¥ Creek (43.1944,¥124.1121); Cherry (43.2038, 124.1419); Coquille River (43.0075,¥124.0273); Sandy Creek ¥ Creek, North Fork (43.2192,¥123.9124); (43.0805, 124.1405); Coquille River, (43.0796,¥123.8517); Sandy Creek, Trib ¥ Cherry Creek, South Fork Trib A (43.2032, 124.2930); F (43.0526,¥123.8736); Sheilds Creek ¥ Cunningham Creek ¥ (43.2154, 123.9353); Coak Creek ¥ (42.9184, 123.9219); Slater Creek (43.2270,¥124.0324); Coquille River, (43.2349, 124.1378); Dutch John (42.9358,¥123.7958); Slide Creek ¥ Ravine (43.1744,¥124.1781); Dye Creek ¥ Little North Fork (43.2988, 123.9410); ¥ (42.9957, 123.9040); Smith Creek Coquille River, North Fork (43.2274, 124.1569); Fahys Creek ¥ ¥ (43.0566, 124.0337); Swamp Creek (43.2974,¥123.8791); Coquille River, (43.1676, 124.3861); Fat Elk Creek ¥ ¥ (43.0934, 123.9000); Unnamed North Fork, Trib E (43.1373, 124.2560); Ferry Creek ¥ ¥ (43.0016, 123.9550); Unnamed (43.1881,¥124.0764); Coquille River, (43.1150, 124.3831); Fishtrap Creek ¥ ¥ (43.0681, 123.9812); Unnamed North Fork, Trib I (43.2932,¥123.8920); (43.0841, 124.2544); Glen Aiken Creek ¥ ¥ (43.0810, 123.9892). Coquille River, North Fork, Trib Y (43.1482, 124.1497); Grady Creek ¥ (ii) Middle Main Coquille Watershed (43.3428,¥123.9678); Evans Creek (43.1032, 124.1381); Gray Creek ¥ 1710030503. Outlet(s) = South Fork (43.2868,¥124.0561); Fruin Creek (43.1222, 124.1286); Hall Creek ¥ Coquille River (Lat 43.0805, Long (43.3016,¥123.9198); Garage Creek (43.0583, 124.2516); Hall Creek, Trib A ¥ ¥ 124.1405) upstream to endpoint(s) in: (43.1508,¥124.1020); Giles Creek (43.0842, 124.1745); Harlin Creek Baker Creek (42.8913,¥124.1297); (43.3129,¥124.0337); Honcho Creek (43.1326,¥124.1633); Hatchet Slough, Beaver Creek (42.9429,¥124.0783); (43.2628,¥123.8954); Hudson Creek Trib A (43.1638,¥124.3065); Hatchet Catching Creek, Middle Fork (43.2755,¥123.9604); Jerusalem Creek Slough (43.1879,¥124.3003); Lampa (42.9913,¥124.2331); Catching Creek, (43.1844,¥124.0539); Johns Creek Creek (43.0531,¥124.2665); Little Bear South Fork (42.9587,¥124.2348); (43.0760,¥124.0498); Little Cherry Creek (43.0407,¥124.2783); Little Coquille River, South Fork Creek (43.2007,¥123.9594); Llewellyn Fishtrap Creek (43.1201,¥124.2290); (42.8778,¥124.0743); Cove Creek Creek (43.1034,124.1063); Llewellyn Lowe Creek (43.1401,¥124.3232); Mack (43.0437,¥124.2088); Dement Creek Creek, Trib A (43.0969,¥124.0995); Lost Creek (43.0604,¥124.3306); Monroe (42.9422,¥124.2086); Gettys Creek Creek (43.1768,¥124.1047); Lost Creek Creek (43.0705,¥124.2905); Offield (43.0028,¥124.1988); Grants Creek (43.2451,¥123.9745); Mast Creek Creek (43.1587,¥124.3273); Pulaski (42.9730,¥124.1041); Horse Hollow (43.2264,¥124.0207); Middle Creek Creek (43.1398,¥124.2184); Randleman (43.0382,¥124.1984); Knight Creek (43.2332,¥123.8726); Moon Creek Creek (43.0818,¥124.3039); Rich Creek (43.0022,¥124.2663); Koontz Creek (43.2902,¥123.9493); Moon Creek, Trib (43.0576,¥124.2067); Rink Creek (43.0111,¥124.2505); Long Tom Creek A (43.2976,¥123.9837); Moon Creek, (43.1764,¥124.1369); Rock Robinson (42.9342,¥124.0992); Matheny Creek Trib A–1 (43.2944,¥123.9753); Neely Creek (43.0860,¥124.2306); Rollan (43.0495,¥124.1892); Mill Creek Creek (43.2960,¥124.0380); Park Creek Creek (43.1266,¥124.2563); Sevenmile (42.9777,¥124.1663); Rhoda Creek (43.2508,¥123.8661); Park Creek, Trib B Creek (43.2157,¥124.3350); Sevenmile (43.0007,¥124.1032); Roberts Creek (43.2702,¥123.8782); Schoolhouse Creek, Trib A (43.1853,¥124.3187); (42.9748,¥124.2385); Rowland Creek Creek (43.1637,¥124.0949); Steele Sevenmile Creek, Trib C (42.9045,¥124.1845); Russell Creek Creek (43.2203,¥124.1018); Steinnon (43.2081,¥124.3340); Unnamed (42.9495,¥124.1611); Unnamed Creek (43.2534,¥124.1076); Unnamed (43.1084,¥124.2727); Unnamed (42.9684,¥124.1033); Ward Creek (43.1305,¥124.0759); Unnamed 43.1731,¥124.1852); Unnamed (43.0429,¥); 124.2358); Warner Creek (43.2047,¥124.0314); Unnamed (43.1924,¥124.1378); Unnamed (43.0196,¥124.1187); Wildcat Creek (43.2127,¥124.1101); Unnamed (43.1997,¥124.3346); Unnamed (43.0277,¥124.2225); Wolf Creek (43.2165,¥123.9144); Unnamed (43.2281,¥124.2190); Unnamed

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(43.2424,¥124.2737); Waddington (42.8189,¥124.3567); Unnamed Fourmile Creek (42.9900,¥124.3176); Creek (43.1105,¥124.2915). (42.7952,¥124.3918); Unnamed Redibough Creek (43.0251,¥124.3659); (13) Sixes Subbasin 17100306’(i) (42.8276,¥124.4629). South Twomile Creek Sixes River Watershed 1710030603. (ii) New River Frontal Watershed (43.0047,¥124.3672); Spring Creek Outlet(s) = Sixes River (Lat 42.8543, 1710030604. Outlet(s) = New River (Lat (43.0183,¥124.4299); Twomile Creek Long ¥124.5427) upstream to 43.0007, Long¥124.4557); Twomile (43.0100,¥124.3291); Unnamed endpoint(s) in: Beaver Creek Creek (43.0440,¥124.4415) upstream to (43.0209,¥124.3386); Unnamed (42.7867,¥124.4373); Carlton Creek endpoint(s) in: Bethel Creek (43.0350,¥124.3506); Unnamed (42.8594,¥124.2382); Cold Creek (42.9519,¥124.3954); Boulder Creek (43.0378,¥124.3481); Unnamed (42.7824,¥124.2070); Crystal Creek (42.8574,¥124.5050); Butte Creek (43.0409,¥124.3544); Unnamed (42.8404,¥124.4501); Dry Creek (42.9458,¥124.4096); Conner Creek (42.8714,¥124.4586); Unnamed (42.7673,¥124.3726); Edson Creek (42.9814,¥124.4215); Davis Creek (42.9029,¥124.4222); Unnamed (42.8253,¥124.3782); Hays Creek (42.9657,¥124.3968); Floras Creek (42.9031,¥124.4581); Unnamed (42.8455,¥124.1796); Little Dry Creek (42.9127,¥124.3963); Fourmile Creek (42.9294,¥124.4421); Unnamed (42.8002,¥124.3838); Murphy Canyon (42.9887,¥124.3077); Fourmile Creek, (42.9347,¥124.4559); Unnamed (42.8516,¥124.1541); Sixes River South Fork (42.9642,¥124.3734); (42.9737,¥124.3363); Unnamed (42.8232,¥124.1704); Sixes River, Langlois Creek (42.9238,¥124.4570); (42.9800,¥124.3432); Unnamed Middle Fork (42.7651,¥124.1782); Little Creek (43.0030,¥124.3562); Long (43.0058,¥124.4066); Willow Creek Sixes River, North Fork Creek (42.9828,¥124.3770); Lower (42.8880,¥124.4505). (42.8878,¥124.2320); South Fork Sixes Twomile Creek (43.0223,¥124.4080); (14) Maps of critical habitat for the River (42.8028,¥124.3022); Sugar Creek Morton Creek (42.9437,¥124.4234); Oregon Coast coho salmon ESU follow: (42.8217,¥124.2035); Unnamed New River (42.8563,¥124.4602); North BILLING CODE 3510–22–P

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[FR Doc. 08–552 Filed 2–4–08; 3:24 pm] BILLING CODE 3510–22–C

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Part IV

Department of Labor Employment Standards Adminstration Wage and Hour Division

29 CFR Part 825 The Family and Medical Leave Act of 1993; Proposed Rule

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DEPARTMENT OF LABOR defining ‘‘qualifying exigencies.’’ TTY/TDD callers may dial toll-free 1– Because of the need to issue regulations 877–889–5627 to obtain information or Employment Standards Administration under the military family leave request materials in alternative formats. provisions of the amendment as soon as Questions of interpretation and/or Wage and Hour Division possible, the Department is including in enforcement of the agency’s current this Notice a description of the relevant regulations may be directed to the 29 CFR Part 825 military family leave statutory nearest Wage and Hour Division District RIN 1215–AB35 provisions, a discussion of issues the Office. Locate the nearest office by Department has identified, and a series calling the Wage and Hour Division’s The Family and Medical Leave Act of of questions seeking comment on toll-free help line at (866) 4US–WAGE 1993 subjects and issues that may be ((866) 487–9243) between 8 a.m. and 5 considered in the final regulations. p.m. in your local time zone, or log onto AGENCY: Employment Standards DATES: Comments must be received on the Wage and Hour Division’s Web site Administration, Wage and Hour or before April 11, 2008. for a nationwide listing of Wage and Division, Department of Labor. ADDRESSES: You may submit comments, Hour District and Area Offices at: ACTION: Notice of proposed rulemaking; identified by RIN 1215–AB35, by either http://www.dol.gov/esa/contacts/whd/ request for comments. one of the following methods: america2.htm. SUMMARY: The Department of Labor’s • Electronic comments, through the SUPPLEMENTARY INFORMATION: Employment Standards Administration/ Federal eRulemaking Portal: http:// www.regulations.gov. Follow the I. Electronic Access and Filing Wage and Hour Division proposes to Comments revise certain regulations implementing instructions for submitting comments. • the Family and Medical Leave Act of Mail: Address all written Public Participation: This notice of 1993 (‘‘FMLA’’), the law that provides submissions to Richard M. Brennan, proposed rulemaking is available eligible workers with important rights to Senior Regulatory Officer, Wage and through the Federal Register and the job protection for absences due to the Hour Division, Employment Standards http://www.regulations.gov Web site. birth or adoption of a child or for a Administration, U.S. Department of You may also access this document via serious health condition of the worker Labor, Room S–3502, 200 Constitution the Wage and Hour Division’s home or a qualifying family member. The Avenue, N.W., Washington, DC 20210. page at http://www.wagehour.dol.gov. proposed changes are based on the Instructions: Please submit one copy To comment electronically on Federal Department’s experience of nearly of your comments by only one method. rulemakings, go to the Federal fifteen years administering the law, two All submissions must include the eRulemaking Portal at http:// previous Department of Labor studies of agency name and Regulatory www.regulations.gov, which will allow the FMLA in 1996 and 2001, several Information Number (RIN) identified you to find, review, and submit U.S. Supreme Court and lower court above for this rulemaking. Please be comments on Federal documents that rulings, and the public comments advised that comments received will be are open for comment and published in received in response to a Request for posted without change to http:// the Federal Register. Please identify all Information (‘‘RFI’’) published in the www.regulations.gov, including any comments submitted in electronic form Federal Register in December 2006 personal information provided. Because by the RIN docket number (1215–AB35). requesting information about we continue to experience delays in Because of delays in receiving mail in experiences with the FMLA and receiving mail in the Washington, DC the Washington, DC area, commenters comments on the effectiveness of these area, commenters are strongly should transmit their comments regulations. encouraged to transmit their comments electronically via the Federal The Department is also seeking public electronically via the Federal eRulemaking Portal at http:// comment on issues to be addressed in eRulemaking Portal at http:// www.regulations.gov, or submit them by final regulations regarding military www.regulations.gov or to submit them mail early to ensure timely receipt prior family leave. Section 585(a) of the by mail early. For additional to the close of the comment period. National Defense Authorization Act for information on submitting comments Submit one copy of your comments by FY 2008 amends the FMLA to provide and the rulemaking process, see the only one method. ‘‘Public Participation’’ heading of the leave to eligible employees of covered II. Background employers to care for injured SUPPLEMENTARY INFORMATION section of servicemembers and because of any this document. A. What the Law Provides qualifying exigency arising out of the Docket: For access to the docket to The Family and Medical Leave Act of fact that a covered family member is on read background documents or 1993, Public Law 103–3, 107 Stat. 6 (29 active duty or has been notified of an comments received, go to the Federal U.S.C. 2601 et. seq.) (‘‘FMLA’’ or ‘‘Act’’) impending call to active duty status in eRulemaking Portal at http:// was enacted on February 5, 1993, and support of a contingency operation www.regulations.gov. became effective for most covered (collectively referred to herein as FOR FURTHER INFORMATION CONTACT: employers on August 5, 1993. The military family leave). The provisions of Richard M. Brennan, Senior Regulatory FMLA entitles eligible employees of this amendment providing FMLA leave Officer, Wage and Hour Division, covered employers to take up to a total to care for a covered servicemember Employment Standards Administration, of twelve weeks of unpaid leave during became effective on January 28, 2008, U.S. Department of Labor, Room S– a twelve month period for the birth of when the law was enacted. The 3502, 200 Constitution Avenue, NW., a child; for the placement of a child for provisions of this amendment providing Washington, DC 20210; telephone: (202) adoption or foster care; to care for a for FMLA leave due to a qualifying 693–0066 (this is not a toll free number). newborn or newly-placed child; to care exigency arising out of a covered family Copies of this proposed rule may be for a spouse, parent, son or daughter member’s active duty (or call to active obtained in alternative formats (Large with a serious health condition; or when duty) status are not effective until the Print, Braille, Audio Tape or Disc), upon the employee is unable to work due to Secretary of Labor issues regulations request, by calling (202) 693–0675. the employee’s own serious health

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condition. See 29 U.S.C. 2612. The • There were an estimated 95.8 addressed the Act and/or implementing twelve weeks of leave may be taken in million workers in establishments regulations. The most significant court a block, or, under certain circumstances, covered by the FMLA regulations, decision on the validity of the intermittently or on a reduced leave • There were approximately 77.1 regulations is that of the United States schedule. Id. million workers in covered Supreme Court in Ragsdale v. Wolverine Employers covered by the law must establishments who met the FMLA’s World Wide, Inc., 535 U.S. 81 (2002). In maintain for the employee any requirements for eligibility, and its first case involving the FMLA, the preexisting group health coverage • About 7.0 million covered and Court ruled in March 2002 that the during the leave period under the same eligible workers took FMLA leave in penalty provision in 29 CFR 825.700(a), conditions coverage would have been 2005. which states ‘‘[i]f an employee takes provided if the employee had not taken • About 1.7 million covered and * * * leave and the employer does not leave and, once the leave period has eligible employees who took FMLA designate the leave as FMLA leave, the concluded, reinstate the employee to the leave took at least some of it leave taken does not count against an same or an equivalent job with intermittently—and may have taken that employee’s FMLA entitlement[,]’’ was equivalent employment benefits, pay, intermittent leave multiple times over invalid because in some circumstances and other terms and conditions of the course of the year. it required employers to provide leave employment. See 29 U.S.C. 2614. to employees beyond the 12-week C. Implementing Regulations If an employee believes that his or her statutory entitlement. ‘‘The FMLA FMLA rights have been violated, the The FMLA required the Department guaranteed [Plaintiff] 12-not 42-weeks of employee may file a complaint with the to issue regulations to implement Title leave[.]’’ Ragsdale, 535 U.S. at 96. While Department of Labor (‘‘Department’’ or I and Title IV of the FMLA within 120 the Supreme Court did not invalidate ‘‘DOL’’) or file a private lawsuit in days of enactment, or by June 5, 1993, the notice and designation provisions in Federal or State court. If the employer with an effective date of August 5, 1993. the regulations, it made clear that any has violated an employee’s FMLA Given this short implementation period, categorical penalty for a violation of rights, the employee is entitled to the Department published a notice of such requirements set forth in the reimbursement for any monetary loss proposed rulemaking in the Federal regulations would exceed the incurred, equitable relief as appropriate, Register on March 10, 1993 (58 FR Department’s statutory authority. Id. at interest, attorneys’ fees, expert witness 13394), inviting comments until March 91–96. fees, and court costs. Liquidated 31, 1993, on a variety of questions and damages also may be awarded. See, 29 issues. The Department received a total Other Challenges to ‘‘Categorical U.S.C. 2617. of 393 comments at that time from a Penalty’’ Provisions Title I of the FMLA applies to private wide variety of stakeholders, including As the Department explained in its sector employers of fifty or more employers, trade and professional December 2006 RFI 1 and the employees, public agencies and certain associations, advocacy organizations, subsequent 2007 Report on the RFI Federal employers and entities, such as labor unions, State and local comments,2 Ragsdale is not the only the U.S. Postal Service and Postal Rate governments, law firms, employee court decision addressing penalty Commission. Title II applies to civil benefit firms, academic institutions, provisions contained in the regulations. service employees covered by the financial institutions, medical Another provision of the regulations, annual and sick leave system institutions, Members of Congress, and § 825.110(d), requires an employer to established under 5 U.S.C. Chapter 63, others. notify an employee prior to the plus certain employees covered by other After considering these comments, the employee commencing leave as to Federal leave systems. Title III Department issued an interim final rule whether or not the employee is eligible established a temporary Commission on on June 4, 1993 (58 FR 31794) that for FMLA leave. If the employer fails to Leave to conduct a study and report on became effective on August 5, 1993. The provide the employee with such existing and proposed policies on leave Department also invited further public information or the information is not and the costs, benefits, and impact on comment on the interim regulations accurate, the regulation bars the productivity of such policies. Title IV through September 3, 1993, later employer from challenging eligibility at contains miscellaneous provisions, extended to December 3, 1993 (58 FR a later date, even if the employee is not including rules governing the effect of 45433). During this comment period, the eligible for FMLA leave according to the the FMLA on more generous leave Department received more than 900 statutory requirements. The majority of policies, other laws, and existing substantive and editorial comments on courts addressing this notice provision employment benefits. Title V originally the interim regulations, from a wide have found it to be invalid, even prior extended leave provisions to certain variety of stakeholders. to the Ragsdale decision. See, e.g., employees of the U.S. Senate and House Based on this second round of public Woodford v. Cmty. Action of Greene of Representatives, but such coverage comments, the Department published County, Inc., 268 F.3d 51, 57 (2d Cir. was repealed and replaced by the final regulations to implement the 2001) (‘‘The regulation exceeds agency Congressional Accountability Act of FMLA on January 6, 1995 (60 FR 2180). rulemaking powers by making eligible 1995, 2 U.S.C. 1301. The regulations were amended on under the FMLA employees who do not B. Who the Law Covers February 3, 1995 (60 FR 6658) and on meet the statute’s clear eligibility requirements.’’); Brungart v. BellSouth The FMLA generally covers March 30, 1995 (60 FR 16382) to make Telecomm., Inc., 231 F.3d 791, 796–97 employers with 50 or more employees, minor technical corrections. The final (11th Cir. 2000) (‘‘There is no ambiguity and employees must have worked for regulations went into effect on April 6, in the statute concerning eligibility for the employer for 12 months and for 1995. family medical leave, no gap to be 1,250 hours of service during the D. Legal Challenges previous year to be eligible for FMLA The Ragsdale Decision 1See 71 FR 69504, 69505 (Dec. 1, 2006). leave. Based on 2005 data, the latest 2See ‘‘Family and Medical Leave Act Regulations: year for which data are available, the Since the enactment of the FMLA, A Report on the Department of Labor’s request for Department estimates that: hundreds of reported Federal cases have Information,’’ 72 FR 35550, 35560 (June 28, 2007).

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filled.’’); Dormeyer v. Comerica Bank- complications).’’ Wage and Hour Appeals looked at a different eligibility Illinois, 223 F.3d 579, 582 (7th Cir. Opinion Letter FMLA–57 (Apr. 7, 1995). criterion, the requirement that the 2000) (the regulation tries ‘‘to change More than a year and a half later, employee has been employed by the the Act’’ because it makes eligible however, the Department reversed its employer for at least 12 months, and employees who, under the language of interpretation, stating that Wage and addressed whether an employee who the statute, are ineligible for family Hour Opinion Letter FMLA–57 had a break in service may count leave; ‘‘The statutory test is perfectly ‘‘expresses an incorrect view, being previous periods of employment with clear and covers the issue. The right of inconsistent with the Department’s the same employer toward satisfying the family leave is conferred only on established interpretation of qualifying 12-month employment requirement (29 employees who have worked at least ‘serious health conditions’ under the U.S.C. 2611(2)(A)(i); 29 CFR 1,250 hours in the previous 12 FMLA regulations.’’ Wage and Hour 825.110(a)(1) and (b)). See Rucker v. Lee months’’). Opinion Letter FMLA–86 (Dec. 12, Holding Co., 471 F.3d 6 (1st Cir. 2006) 1996). The Department further stated Legal Challenges to the Definition of (a complete break in service of a period that such minor illnesses ordinarily Serious Health Condition of five years does not prevent the would not be expected to last more than employee from counting previous Other regulatory provisions have been three days, but if they do meet the employment to meet the 12-month challenged as well. In particular, regulatory criteria for a serious health employment requirement). Another challenges to the regulatory section condition under § 825.114(a), they regulation that has been the subject of defining the term ‘‘serious health qualify for FMLA leave. The Department litigation is § 825.220(d), which in part condition’’ as a condition causing a received significant commentary about discusses the impact of a light duty period of incapacity of more than three its changing interpretations of the work assignment on an employee’s consecutive calendar days and definition of serious health condition in FMLA rights. Further, most recently, the continuing treatment, 29 CFR response to its RFI. See Chapter III of Fourth Circuit Court of Appeals ruled in 825.114(a)(2)(i), has received significant the Department’s 2007 Report on the Taylor v. Progress Energy, 493 F.3d 454 attention. See, e.g., Miller v. AT&T RFI comments (72 FR at 35563). (4th Cir. 2007), petition for cert. filed, 76 Corp., 250 F.3d 820 (4th Cir. 2001); Other Legal Challenges U.S.L.W. 3226 (U.S. Oct. 22, 2007) (No. Thorson v. Gemini, Inc., 205 F.3d 370 07–539), that other language in (8th Cir. 2000). Many other legal issues have arisen § 825.220(d) prevents an employee and As the Department explained in its over the nearly thirteen years the final employer from independently settling December 2006 RFI 3 and subsequent regulations have been in effect. For past claims for FMLA violations without Report on the RFI,4 the Department example, litigation has ensued under the approval of the Department or a itself has struggled with this definition. §§ 825.302–.303 as to what constitutes court. After the Act’s passage, the Department sufficient employee notice to trigger an promulgated § 825.114(c), which states employer’s obligations under the FMLA. E. Prior Studies and Reports that ‘‘[o]rdinarily, unless complications See, e.g., Sarnowski v. Air Brook Title III of the FMLA established a arise, the common cold, the flu, ear Limousine, Inc.,—F.3d ,—2007 WL temporary Commission on Leave to aches, upset stomach, minor ulcers, 4323259 (3rd Cir. 2007) (employee with conduct a study and report on existing headaches other than migraine, routine chronic heart problems who informed and proposed policies on leave and the dental or orthodontia problems, employer of need for continuing costs, benefits, and impact on periodontal disease, etc., are examples medical monitoring and possible productivity of such policies. The of conditions that do not meet the surgery provided sufficient notice); Commission surveyed workers and definition of a serious health condition Spangler v. Fed. Home Loan Bank of employers in 1995 and issued a report and do not qualify for FMLA leave.’’ Des Moines, 278 F.3d 847 (8th Cir. 2002) published by the Department in 1996, This regulatory language was intended (employee who had made employer ‘‘A Workable Balance: Report to to reflect the legislative history of the aware that she had problems with Congress on Family and Medical Leave FMLA and expresses the Congressional depression gave sufficient notice when Policies.’’ 5 In 1999, the Department intent that minor, short-term illnesses she called in and indicated she was out contracted with Westat, Inc.,6 to update for which treatment and recovery are because of ‘‘depression again’’). the employee and establishment surveys Among other cases, the Tenth Circuit very brief would be covered by conducted in 1995. The Department Court of Appeals considered the employers’ sick leave programs and not published that report, ‘‘Balancing the definition of ‘‘worksite’’ for determining by the FMLA. See H.R. Rep. No. 103– Needs of Families and Employers: whether an employee seeking FMLA 8, at 40 (1993); S. Rep. No. 103–3, at 28– Family and Medical Leave Surveys, leave was employed at a worksite where 29 (1993). Consequently, in an early 2000 Update’’ in January 2001.7 response about the proper handling of 50 or more employees were employed an employee’s request for leave due to by the employer within 75 miles. F. Request for Information the common cold, the Department Section 825.111(a)(3) states that when On December 1, 2006, the Department responded by stating ‘‘[t]he fact that an an employee is jointly employed by two published a Request for Information employee is incapacitated for more than or more employers, the employee’s (RFI) in the Federal Register (71 FR three days, has been treated by a health worksite is the primary employer’s 69504). care provider on at least one occasion office from which the employee has The RFI asked the public to comment which has resulted in a regimen of been assigned or to which the employee on its experiences with, and continuing treatment prescribed by the reports. In Harbert v. Healthcare health care provider does not convert Services Group, Inc., 391 F.3d 1140 5 See http://www.dol.gov/esa/whd/fmla/fmla/ minor illnesses such as the common (10th Cir. 2004), the Court of Appeals 1995Report/Family.htm. cold into serious health conditions in invalidated § 825.111(a)(3), insofar as it 6 Westat is a statistical survey research is applied to the situation of an organization serving agencies of the U.S. the ordinary case (absent Government, as well as businesses, foundations, employee with a long-term fixed and State and local governments. 3See 71 FR at 69506. worksite at a facility of the secondary 7See http://www.dol.gov/esa/whd/fmla/fmla/ 4See 72 FR at 35563. employer. The First Circuit Court of toc.htm.

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observations of, the Department’s Human Services issued regulations that titles to each section of the existing administration of the law and the provide standards for the privacy of regulations are in the form of a question. effectiveness of the FMLA regulations. individually identifiable health The proposal would reword each The RFI’s questions and subject areas information, codified at 45 CFR Parts question into the more common format were derived from a series of 160 and 164 (‘‘HIPAA Privacy Rule’’). of a descriptive title and the Department stakeholder meetings the Department These standards apply to ‘‘covered invites comments on whether this conducted in 2002–2003, a number of entities,’’ defined as a health plan, a change is helpful. In addition, several rulings of the U.S. Supreme Court and health care clearinghouse, or a health sections have been restructured and other Federal courts as discussed above, care provider who transmits any health reorganized to improve the accessibility the Department’s own experience information in electronic form in of the information (e.g., guidance on administering the law, information from connection with a transaction as defined leave for pregnancy and birth of a child Congressional hearings, and public in the privacy regulations.10 is addressed in one consolidated comments filed with the Office of The HIPAA Privacy Rule has had an section; an employer’s notice Management and Budget (OMB) as impact on the FMLA’s medical obligations are combined in one described by OMB in three annual certification process in a number of section). reports to Congress on the FMLA’s costs ways. For example, the FMLA provides Section 825.102 (Effective date of the 8 and benefits. More than 15,000 employers with the right to obtain Act) comments were received from workers, medical information to determine that a family members, employers, academics, requested leave qualifies as FMLA The proposal deletes this section, and other interested parties.9 This input leave, and the employee is required to which discussed when the Act became ranged from personal accounts, legal assure that this information, if effective, because it is no longer needed. reviews, industry and academic studies, requested, is provided to the employer The section number itself is reserved to and surveys to recommendations for to be entitled to FMLA leave for a avoid extensive renumbering of other regulatory and statutory changes to serious health condition. If an employee sections in the regulations. address particular areas of concern. The does not do this, the absence does not Section 825.103 (How the Act affects Department published its Report on the qualify for FMLA leave.11 While these leave in progress on, or taken before, the comments received in response to the rules are fairly straightforward, recent effective date of the Act) Department’s RFI in June 2007 (see 72 enforcement experience reveals that The proposal deletes and reserves this FR 35550 (June 28, 2007)). there is confusion with regard to the interaction of the HIPAA Privacy Rule section, which discussed how the Act G. Stakeholder Meeting and FMLA. For example, some affected leave in progress on, or taken The Department also conducted a employees incorrectly believe that the before, the Act’s effective date, because stakeholder meeting regarding the HIPAA Privacy Rule prevents employers it is no longer needed. medical certification process on from requiring FMLA certification. See Section 825.106 (Joint employer September 6, 2007. This meeting discussion of §§ 825.306–.308 for coverage) included representatives from employee further discussion of the impact of the Sections 825.106 and 825.111(a)(3) of organizations, employer organizations, HIPAA Privacy Rule on the medical the existing regulations govern and the health care provider certification process. employer coverage and employee community. Similarly, since the final FMLA eligibility in the case of joint regulations were implemented in 1995, employment and set forth the H. Other Statutory and Regulatory the Equal Employment Opportunity Developments responsibilities of the primary and Commission (EEOC), the agency secondary employers. Under As discussed in the RFI and the responsible for enforcing the Americans § 825.106(d), employees jointly Report on the RFI, in addition to with Disabilities Act (ADA), has issued employed by two employers must be developments in the courts, several guidance with regard to the privacy of counted by both employers in important legislative and regulatory employee medical information. See, e.g., determining employer coverage and developments have occurred that either Enforcement Guidance: Disability- employee eligibility. Thus, for example, directly or indirectly impact the FMLA Related Inquiries and Medical an employer who jointly employs 15 regulations. In 1996, Congress enacted Examinations of Employees Under the workers from a leasing or temporary the Health Insurance Portability and Americans with Disabilities Act (ADA) help agency and 40 permanent workers Accountability Act (HIPAA), Public Law (EEOC 2000). The FMLA looks to the is covered by the FMLA. Likewise, if an 104–191, which addresses in part the ADA for guidance on privacy of employer with 15 permanent workers privacy of individually identifiable 12 employee medical information. jointly employs 40 workers from a health information. On December 28, III. Proposed Changes to the FMLA leasing company that employer is also 2000, and as amended on August 14, Regulations covered by the FMLA. 2002, the Department of Health and Although job restoration is the The following is a section-by-section primary responsibility of the primary 8 These OMB reports may be found at the discussion of the proposed revisions. employer, the secondary employer is following Web sites: 2001 report at: http:// Where a change is proposed to a responsible for accepting the employee www.whitehouse.gov/omb/inforeg/ regulatory section, that section is costbenefitreport.pdf; 2002 report at: http:// returning from FMLA leave if the discussed below. However, even if a www.whitehouse.gov/omb/inforeg/ secondary employer continues to utilize 2002_report_to_congress.pdf; and 2004 report at: section is not discussed, there may be an employee from the temporary or http://www.whitehouse.gov/omb/inforeg/ minor editorial changes or corrections _ _ leasing agency and the agency chooses 2004 cb final.pdf. that did not warrant discussion. The 9 All comments are available for viewing via the to place the employee with that public docket of the Wage and Hour Division of the secondary employer. The secondary Employment Standards Administration, U.S. 10See 45 CFR 160.102(a) and 45 CFR 160.03. Department of Labor, 200 Constitution Avenue, 11See Wage and Hour Opinion Letter FMLA2005– employer is also responsible for NW., Washington, DC 20210. Many comments are 2–A (Sept. 14, 2005). compliance with the prohibited acts also available on http://www.regulations.gov. 12See 29 CFR 825.500(g). provisions with respect to its

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temporary/leased employees, and thus the ‘‘secondary employer,’’ whether a vary by organization and contract, but may not interfere with an employee’s covered employer or not under the that most are not involved in the day- attempt to exercise rights under the Act, FMLA, was prohibited from interfering to-day operations of their client’s or discharge or discriminate against an with a ‘‘leased’’ employee’s attempt to business and do not exercise the right to employee for opposing a practice that is exercise rights under the Act, or hire, fire, supervise or manage daily unlawful under FMLA. See the existing discharging or discriminating against an activities of employees. The firm urged § 825.106(e). employee for opposing a practice that is the Department to clarify that opinion In Wage and Hour Opinion Letter unlawful under the Act. letter FMLA–111 (Sept. 11, 2000) is FMLA–111 (Sept. 11, 2000), the While no specific questions about an atypical PEO that actually Department considered the application concerning PEOs were contained in the exercised control over the client’s of the FMLA regulations’ ‘‘joint RFI, the Department did seek employees. employment’’ test in current § 825.106 information on ‘‘any issues that may The Department proposes to amend to a ‘‘Professional Employer arise when an employee is jointly § 825.106(b) to clarify that PEOs that Organization’’ (PEO). The PEO in employed by two or more employers’’ contract with client employers merely to question had a contract with the client (71 FR at 69509). In response to the RFI, perform administrative functions, company under which it appeared to a number of stakeholders commented including payroll, benefits, regulatory enter into an employer-employee that it is not correct to consider PEOs paperwork, and updating employment relationship with the client’s employees (sometimes called ‘‘HR Outsourcing policies, are not joint employers with (who were leased back to the client and Vendors’’) to be joint employers with their clients, provided they merely continued to work at the client’s their client companies and explained perform such administrative functions. worksite pursuant to the terms of the the differences between a temporary On the other hand, if in a particular fact contract). The PEO in this case assumed staffing agency and a PEO. ‘‘A situation a PEO has the right to hire, substantial employer rights, temporary staffing agency is a labor fire, assign, or direct and control the responsibilities and risks, including the supplier. It supplies employees to a employees, or benefits from the work responsibility for personnel client while a PEO is a service provider that the employees perform, such a PEO management, health benefits, workers’ providing services to existing employees would be a joint employer with the compensation claims, payroll, payroll of a company.’’ See comments by client company. tax compliance, and unemployment Jackson-Lewis. Unlike a temporary Some of the comments concerning insurance claims. Moreover, the PEO in staffing agency, a PEO does not have the PEOs suggest confusion over how to this case had the right to hire, fire, ability to place an employee returning count employees jointly employed for assign, and direct and control the from FMLA leave with a different client purposes of employer coverage (‘‘over employees. employer. Id. 50 workers’’) and employee eligibility Based on the facts described in the The AFL–CIO commented that PEOs (‘‘over 50 employees within 75 miles’’). incoming letter, the Opinion Letter engage in a practice known as Some of these comments suggest that all concluded that the PEO was in a joint ‘‘payrolling,’’ in which the client of the employees of both the primary employment relationship with its client employers transfer the payroll and and secondary employers (and even companies for these reasons: related responsibilities for some or all of those of other secondary employers) their employees to the PEO, and that must be combined and counted together 1. The PEO was a separately owned and typically, the PEO also makes payments for purposes of these two tests. distinct entity under contract with the client on behalf of the client employer into However, under the existing to lease employees for the purpose of handling ‘‘critical human resource State workers’ compensation and § 825.106(d) only those employees who responsibilities and employer risks for the unemployment insurance funds, but the are jointly employed by the primary and client.’’ PEO does not provide placement each of the secondary employers are 2. The PEO was acting directly in the services. In contrast with temporary included in the employee counts of both interest of the client in assuming human staffing agencies, the AFL–CIO firms. The home office employees of the resource responsibilities. commented, PEOs do not match people primary employer and the employees 3. The PEO appeared to also share control to jobs. placed with other secondary employers of the leased employees consistent with the The law firm of Littler Mendelson are not included, for example, in the client’s responsibility for its product or advised that ‘‘Employee leasing employee counts for each secondary service. arrangements’’—like those involving employer. The Opinion Letter stated that ‘‘it temporary services firms and other For the reasons discussed above, would appear that’’ the PEO is the staffing companies—refer to existing paragraph (b) of § 825.106 is ‘‘primary employer’’ for those arrangements in which the staffing firm proposed to be changed to paragraph employees ‘‘leased’’ under contract with places its own employees at a (b)(1) and a new paragraph (b)(2) is the client. Thus, under existing customer’s place of business to perform proposed to be added to clarify how the § 825.106, the PEO would be services for the recipient’s enterprise. joint employment rules apply to PEOs. responsible for giving required FMLA The PEO, in contrast, assumes certain Under the proposal, PEOs that contract notices to its employees, providing administrative functions for its clients with client employers merely to perform FMLA leave, maintaining group health such as payroll and benefits coverage administrative functions—including insurance benefits during the leave, and and administration (including workers’ payroll, benefits, regulatory paperwork, restoring the employee to the same or compensation insurance and health and updating employment policies—are equivalent job upon return from leave. insurance). The PEO typically has no not joint employers with their clients, The ‘‘secondary employer’’ (i.e., the direct responsibility over the employees provided: (1) They do not have the right client company) would be responsible of its clients including ‘‘hiring, training, to exercise control over the activities of for accepting the employee returning supervision, evaluation, discipline or the client’s employees, and do not have from FMLA leave if the PEO chose to discharge, among other critical the right to hire, fire or supervise them, place the employee with the client employer functions.’’ or determine their rates of pay, and (2) company. The Opinion Letter The law firm of Fulbright & Jaworski do not benefit from the work that the concluded that the client company, as commented that PEO responsibilities employees perform. On the other hand,

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if in a particular fact situation a PEO has are now covered by the CAA as the employee was maintained on the the right to hire, fire, assign, or direct administered by the Office of payroll for any part of a week, that week and control the employees, or benefits Compliance created by the CAA. counts towards the employee’s fulfilling from the work that the employees Section 202(c) of the CAA also the 12 months employment requirement perform, such a PEO would be a joint specifically provided that the General and that 52 weeks is deemed equal to 12 employer with the client employer. The Accounting Office (now named the months. proposal also includes a cross-reference Government Accountability Office) In its RFI, the Department sought in paragraph (d) to proposed (GAO) and Library of Congress (LOC) comment on whether and how to § 825.111(a)(3), which, as discussed are subject to Title I of the FMLA. For address the treatment of combining below, would change the determination those agencies, the FMLA is nonconsecutive periods of employment of the ‘‘worksite’’ for purposes of administered by the Comptroller to meet the 12 months of employment employee eligibility with respect to General and the Librarian of Congress, requirement. (71 FR at 69508) This employees who are placed by a primary respectively. See 29 U.S.C. eligibility criterion has been the subject employer at the worksite of a secondary 2611(4)(A)(iv) and 2617(f). of litigation. In Rucker v. Lee Holding, employer for more than 12 months. The CAA also called for a study of Co., 471 F.3d 6 (1st Cir. 2006), the court how the FMLA is administered for the considered whether an employee’s Section 825.108 (Public agency Government Printing Office (GPO), as previous employment of five years coverage) well as the GAO and LOC. 2 U.S.C. counted toward the 12-month This section addresses what 1371. The Congressional Office of employment eligibility requirement constitutes a ‘‘public agency’’ for Compliance issued its study on even though it was separated by a five- purposes of coverage under the Act. December 31, 1996. The study year break in service from his current Under the current regulations, the concluded that the GPO is covered by employment. The First Circuit Court of dispositive test for determining whether Title II and the Office of Personnel Appeals held that ‘‘the complete a public agency is a separate and Management’s regulations, rather than separation of an employee from his or distinct entity (and therefore a separate Title I and the Department of Labor her employer for a period of years, here employer for determining employee regulations. In a letter dated April 25, five years, does not prevent the eligibility) or simply is part of another 2000, the GPO asked the Department to employee from counting earlier periods public agency is the U.S. Bureau of the amend its FMLA regulations to delete of employment toward satisfying the 12- Census’ ‘‘Census of Governments.’’ See the reference to GPO coverage, because month requirement.’’ Id. at 13. In regard U.S. Census Bureau, 2002 Census of that agency is covered by Title II. In its to whether a break in service of more Governments, Volume 1, Number 1, response of January 31, 2001, the than five years would be permissible, Government Organization, GC02(1)–1, Department concurred with the the court stated that this important U.S. Government Printing Office, conclusion that the GPO is covered by policy issue should be resolved by the Washington, DC 20002 13 (http:// Title II and stated that it would amend Department in the first instance as a part www.census.gov/prod/2003pubs/ the regulations accordingly whenever of its exercise of its statutory authority. gc021x1.pdf). In contrast, regulations they were next modified. The proposal Id. issued under the Fair Labor Standards would amend paragraphs (a) and (d) of A number of commenters urged the Act (FLSA) use this test merely as one this section to reflect these changes. Department to support the Rucker factor in determining what constitutes a Pursuant to section 604(f) of the decision that prior months of service separate public agency for its purposes. Postal Accountability and Enhancement may be combined for eligibility See 29 CFR 553.102. The Department Act, Public Law 109–435, Dec. 20, 2006, purposes even when separated by proposes no changes to this section. 120 Stat. 3242, the Postal Rate breaks in service of many years. The Because the FMLA definition of ‘‘public Commission was redesignated as the National Partnership for Women & agency’’ refers to the definition under Postal Regulatory Commission, and the Families, for example, stated that ‘‘an the FLSA (29 U.S.C. 203(x)), however, proposed rule would amend paragraph arbitrary time limit on how long a the Department seeks public comment (b)(2) of this section to reflect this worker could leave the employment of on whether this test in the FMLA change. a particular employer would operate as an unfair and disproportionate burden regulations should be amended to Section 825.110 (‘‘Eligible’’ employee) conform with the test in the FLSA on women workers. Many women leave regulations. Current § 825.110 sets forth the work for extended periods of time, for eligibility standards employees must example, to stay home with young Section 825.109 (Federal agency meet in order to take FMLA leave. children during their formative years.’’ coverage) Specifically, current § 825.110(a) (See comments by National Partnership This section of the existing restates the statutory requirement that to for Women & Families.) regulations identifies the Federal be eligible for FMLA leave, an employee Employer comments received on this agencies that are covered by the must have been employed by an issue overwhelmingly disagreed with Department of Labor’s FMLA employer for at least 12 months, have the First Circuit ruling on combining regulations. Shortly after these been employed for at least 1,250 hours prior periods of service together. For regulations were promulgated, Congress of service during the 12 months example, the University of Notre Dame enacted the Congressional preceding the leave, and be employed at stated, ‘‘There is a tremendous Accountability Act of 1995, 2 U.S.C. a worksite where 50 or more employees administrative burden associated with 1301 (CAA), which in part amended the are employed by the employer within 75 adopting the First Circuit Court of FMLA by repealing Title V of the FMLA miles of the worksite. Appeals’ interpretation of section pertaining to Congressional employees. Current § 825.110(b) provides detail 825.110 that an employer has the duty See Section 504(b), Public Law 104–1. on the requirement that the employee to aggregate non-consecutive service to As a result, Congressional employees must have been employed by the establish ‘12 months of service.’ As we employer for at least 12 months, stating understand this possible interpretation, 13 The Census of Governments is taken at five- that the 12 months need not be the ability to aggregate past service with year intervals. consecutive. It further explains that if current service to equate to 12 months

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is virtually unlimited.’’ Other comments under the proposed rule, if an employee interpretation of the statute and strikes received on this issue included in 2008 has worked five months for an an appropriate balance between suggestions for amending the employer and worked for the same providing re-employed workers with regulations to allow the employer to: employer for two full years in 1997–8, FMLA protections and not making the disregard prior employment periods if the employer would not have to administration of the Act unduly all ties between the company and consider the two years of prior burdensome for employers. worker were severed; follow company employment in determining whether the However, the Department also policy or State law regarding the employee currently is eligible for FMLA proposes new paragraph (b)(2) of this treatment of previous employment; and leave. The FMLA requires covered section to address two exceptions to the require that the 12 months of employers to maintain records for three general rule contained in proposed new employment be consecutive. Employer years. 29 CFR 825.500(b) (‘‘[E]mployers paragraph (b)(1): a break in service commenters cited the administrative must keep the records specified by these resulting from the employee’s burden associated with combining regulations for no less than three years fulfillment of military obligations; and a previous employment periods as the and make them available for inspection, period of approved absence or unpaid rationale for their recommendations copying, and transcription by leave, such as for education or child- including that the FMLA itself only representatives of the Department of rearing purposes, where a written requires recordkeeping for three years Labor upon request.’’). The Department agreement or collective bargaining and not indefinitely. is not proposing to change the three- agreement exists concerning the The Department received comments year record keeping requirements under employer’s intent to rehire the similar to these in response to the 1993 FMLA. Thus, employers would have employee. In these situations, interim final regulations, which documentation to confirm previous employment prior to the break in suggested limiting the period of time employment for a former employee who service must be used in determining used in determining whether the at the time of rehiring had a break in whether the employee has been employee had been employed by the service of three years or less. Where an employed for at least 12 months, employer for 12 months. In the final employee relies on a period of regardless of the length of the break in regulations, however, the Department employment that predates the service. declined to include such a limit, employer’s records, it will be incumbent The current discussion of how weeks reasoning that ‘‘[m]any employers upon the employee to put forth some are counted for fulfilling the 12 months require prospective employees to submit proof of the prior employment. This is requirement is proposed to be re- applications for employment which consistent with the employee’s designated as paragraph (b)(3) of this disclose employees’ previous obligation to establish he or she is an section. Further, the Department proposes to employment histories. Thus, the eligible employee. See Novak v. add a new paragraph (b)(4) in this information regarding previous MetroHealth Medical Center, 503 F.3d employment with an employer should section to note that nothing prevents an 572, 577 (6th Cir. 2007); Burnett v. LFW, employer from considering employment be readily available and may be Inc., 472 F.3d 471, 477 (7th Cir. 2006). confirmed by the employer’s records if prior to a continuous break in service of Of course, in determining whether an more than five years when determining a question arises.’’ (60 FR at 2185) employee has met the eligibility Furthermore, the Department did not if an employee meets the 12-month criterion, an employer may have a employment criterion provided the find a basis under the statute or its policy to consider employment prior to legislative history for adopting the employer does so uniformly with a longer break in service, but in that recommendations received in response respect to all employees with similar event must do so in a uniform manner to the Interim Final Rule. Id. Indeed, the breaks in service. for all employees with similar breaks in statute does not directly address the Paragraph (c) of § 825.110 is proposed service. issue of whether the 12 months of to be revised to address hours an employment must be consecutive, and The Department considered several employee would have worked for his or the legislative history provides limited alternatives in developing this proposed her employer but for the employee’s insight into Congressional intent change to § 825.110(b). Because the fulfillment of military service regarding extended breaks in legislative history states that the 12 obligations. This revision codifies the employment. The Senate Committee months of employment need not be protections and benefits offered by the Report in discussing the requirement consecutive, the Department could not Uniformed Services Employment and that the employee must have worked for adopt suggestions that any break in Reemployment Rights Act (USERRA). the employer for 12 months states service ‘‘resets’’ the count for In addition, the Department proposes ‘‘[t]hese 12 months of employment need determining whether the employee has several changes to § 825.110 in light of not have been consecutive.’’ S. Rep. No. met the 12 months employment the Ragsdale decision. Current 103–3, at 23 (1993). The House eligibility criterion. On the other hand, § 825.110(c) may result in some Committee Report uses the same the Department believes it is not instances in employees who are language in describing the 12-month reasonable that the time frame used for ineligible for FMLA leave nonetheless requirement. See H.R. Rep. No. 103–8, considering prior employment for being ‘‘deemed eligible’’ because of an pt. 1, at 35 (1993). eligibility should be without end. At the employer’s failure to meet its burden of Based on the Department’s experience same time, the Department is mindful of maintaining records needed to establish in administering the FMLA, the First the comment by the National the employee’s eligibility. Current Circuit’s ruling in Rucker, and Partnership for Women & Families § 825.110(d) may also result in an comments received in response to the about the burden on women workers employee who is not eligible for FMLA RFI, the Department proposes a new who may leave and reenter the leave being ‘‘deemed eligible’’ based on § 825.110(b)(1) to provide that although workforce after the formative years of the employer’s lack of (or incorrect) the 12 months of employment need not their children. But see S. Rep. No. 103– notice to the employee. Read in concert be consecutive, employment prior to a 3, at 16 (1993). The Department believes with Ragsdale, in which the U.S. continuous break in service of five years that the proposed outer limit of a five Supreme Court invalidated a similar or more need not be counted. Thus, year break in service is a permissible provision in the current § 825.700(a),

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the Department believes these v. The Conveyor Co., 359 F.Supp.2d 813 Section 825.111 (Determining whether provisions in current § 825.110(c) and (N.D. Iowa 2005). The proposal clarifies 50 employees are employed within 75 (d) need to be modified. that when an employee is on leave at miles) On the other hand, the Court in the time he or she meets the 12-month Current § 825.111 sets forth the Ragsdale suggested that if an employer eligibility requirement, the period of fails to notify an employee of his or her leave prior to meeting the statutory standards for determining whether an FMLA rights, the employee may have a requirement is non-FMLA leave and the employer employs 50 employees within remedy if the employee can show that period of leave after the statutory 75 miles for purposes of employee the employer interfered with, restrained requirement is met is FMLA leave. eligibility. Paragraph (a)(3) of this or denied the employee the exercise of The Department proposes to delete section provides that when an employee his or her FMLA rights and that the current § 825.110(e), regarding counting is jointly employed by two or more employee suffered damages as a result. periods of employment prior to the employers, the employee’s worksite is See Ragsdale, 535 U.S. at 89. Therefore, effective date of the FMLA, because the the primary employer’s office from the Department has incorporated into revisions proposed in § 825.110(b) which the employee is assigned or the proposed text of § 825.300 a discussed above render the provision reports. statement that in these situations if an unnecessary. In Harbert v. Healthcare Services employee shows individualized harm The Department proposes no changes Group, Inc., 391 F.3d 1140 (10th Cir. because the employer interferes with, to current paragraph (f) (paragraph (e) in 2004), the Court of Appeals held that restrains or denies the employee of his the proposal) of this section, which § 825.111(a)(3), as applied to the or her FMLA rights, the employee is states that whether an employee works situation of an employee with a long- entitled to the remedies provided by the for an employer who employs 50 or term fixed worksite at a facility of the statute. The Department also proposes more employees within 75 miles of the secondary employer, was arbitrary and to add this language to § 825.220, which worksite is determined as of the date the capricious because it: (1) Contravened addresses how employees are protected leave request is made. In the RFI, the the plain meaning of the term when they assert their FMLA rights, and Department sought comment on the ‘‘worksite’’ as the place where an proposed § 825.301, which addresses differing regulatory tests used for employee actually works (as opposed to designation of FMLA leave. determining employee eligibility: the the location of the long-term care For organizational purposes, the determination of whether the employee placement agency from which Harbert notice provisions contained in current has been employed for at least 12 was assigned); (2) contradicted § 825.110(d) have been moved to months and for at least 1,250 hours in Congressional intent that if any proposed § 825.300(b) with other notice the 12 months preceding the leave is employer, large or small, has no requirements employers must provide to made as of the date the leave is to significant pool of employees nearby employees under the regulations. This commence; however, the determination (within 75 miles) to cover for an absent organizational change should make it of whether 50 employees are employed employee, that employer should not be easier for employees and employers to by the employer within 75 miles of the required to provide FMLA leave to that locate these requirements by worksite is made as of the date the leave employee; and (3) created an arbitrary consolidating them into one section. request is made (emphasis added). (71 distinction between sole and joint The proposal includes a cross-reference FR at 69508). Some of the comments employers. to § 825.300 in paragraph (d) of received in response to the RFI urged The court noted that Congress did not § 825.110. the Department to make these tests the define the term ‘‘worksite’’ in the The Department also proposes to same, namely, to require the FMLA, and it concluded that the clarify the language in current determination of employee eligibility in common understanding of the term § 825.110(d) stating that employee both cases as of the date the leave is to ‘‘worksite’’ is the site where the eligibility determinations ‘‘must be begin. The Department appreciates the employee works. With respect to the made as of the date leave commences.’’ difficulty experienced by many employee eligibility requirement of 50 This language has led to confusion employers in complying with these employees within 75 miles, the court when employees who have fulfilled the different regulatory tests; however, the noted that Congress recognized that 1,250 hours worked requirement for proposal does not adopt this suggestion even potentially large employers may eligibility, but not the 12 months of for the reasons discussed in the have difficulty finding temporary employment requirement, begin a block preamble to the 1995 final regulations: replacements for employees who work of leave. (Although periods of leave do at geographically scattered locations. not count towards the 1,250 hour [T]he purpose and structure of FMLA’s notice provisions intentionally encourage as The court stated that Congress requirement because leave is not ‘‘hours determined that if any employer (large worked,’’ periods of leave do count much advance notice of an employee’s need for leave as possible, to enable both the or small) has no significant pool of towards the 12 months of employment employer to plan for the absence and the employees in close geographic requirement because the employment employee to make necessary arrangements proximity to cover for an absent relationship continues, and has not been for the leave. Both parties are served by employee, that employer should not be severed, during the leave.) For example, making this determination when the required to provide FMLA leave to that where an employee who has worked for employee requests leave. Tying the worksite employee. Therefore, the court an employer for 11 months and 1,300 employee-count to the date leave commences concluded: hours commences a three month block as suggested could create the anomalous result of both the employee and employer of leave for birth and bonding, An employer’s ability to replace a planning for the leave, only to have it denied particular employee during his or her period confusion exists as to whether that at the last moment before it starts if fewer portion of the leave that occurs after the of leave will depend on where that employee than 50 employees are employed within 75 must perform his or her work. In general, employee reaches 12 months of miles of the worksite at that time. This would therefore, the congressional purpose employment is FMLA protected. entirely defeat the notice and planning underlying the 50/75 provision is not Compare Babcock v. BellSouth aspects that are so integral and indispensable effected if the ‘‘worksite’’ of an employee to the FMLA leave process. Advertising and Publishing Corp., 348 who has a regular place of work is defined F.3d 73 (4th Cir. 2003), with Willemssen (60 FR at 2186) as any site other than that place.

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391 F.3d at 1150. reasonable interpretation’’ and does not who is assigned to a fixed worksite and In comparing how the regulations result in arbitrary differences between a jointly-employed employee who has apply the term ‘‘worksite’’ to joint sole and joint employers under the no fixed worksite and changes worksites employers and sole employers, the court FMLA. The National Partnership regularly. ‘‘As for the former, the stated: commented that the purpose of worksite for purposes of determining The challenged regulation also creates an designating the primary office as the whether they are eligible employees arbitrary distinction between sole employers worksite is to ensure that the employer * * * would be the fixed worksite of and joint employers. For example, if the with the primary responsibility for the the secondary employer. As for the employer is a company that operates a chain employee’s assignment is the one held latter, the worksite would continue as of convenience stores, the ‘‘worksite’’ of an accountable for compliance with these stated in the regulation[.]’’ employee hired to work at one of those regulations. The National Partnership After weighing the comments on this convenience stores is that particular issue submitted in response to the RFI, convenience store. See 58 Fed. Reg. 31794, stated that the same principles 31798 (1993). If, on the other hand, the articulated in the regulations with the Department believes it needs to employer is a placement company that hires regard to ‘‘no fixed worksite’’ situations amend the regulations to reflect the certain specialized employees to work at also should apply to this factual decision in Harbert. The proposed rule convenience stores owned by another entity scenario. ‘‘In cases where employees would modify § 825.111(a)(3) to state (and therefore is considered a joint have long-term assignments, we believe that after an employee who is jointly employer), the ‘‘worksite’’ of that same the purposes of the FMLA are best employed is stationed at a fixed employee hired to work at that same served by using the primary employer worksite for a period of at least one year, convenience store is the office of the the employee’s worksite for purposes of placement company. from which the employee is assigned as the worksite for determining FMLA employee eligibility is the actual Id. coverage.’’ physical place where the employee Importantly, the court did not On the other hand, the law firm of works. No changes are proposed with invalidate the regulation with respect to Pilchak Cohen & Tice commented that, respect to employees whose worksite employees who work out of their under the current regulations, has not been fixed for at least one year. homes: ‘‘We do not intend this employees at the same size Also, no changes are proposed for statement to cast doubt on the portion establishment are treated differently § 825.111(a)(2) with respect to of the agency’s regulation defining the because one works for a traditional sole employees who work out of their ‘worksite’ of employees whose regular employer and the other works for a homes, except to update the current workplace is his or her home. See 29 staffing firm: language ‘‘as under the new concept of C.F.R. § 825.111(a)(2).’’ Id. at 1150 n.1. flexiplace’’ to give it a more modern Nor did the court invalidate the For example, where a small retail store meaning, ‘‘as under the concept of chain may have many employees nationwide, regulatory definition in § 825.111(a)(3) flexiplace or telecommuting.’’ with respect to employees of temporary each store could employ fewer than 50 employees. Those employees clearly would The Department has not adopted the help companies: ‘‘An employee of a not be eligible for FMLA in the traditional comment from Pilchak Cohen & Tice temporary help agency does not have a employment context. Yet, under the current that in order to qualify for FMLA job permanent, fixed worksite. It is regulation, if that same retail chain utilized restoration with the client company, a therefore appropriate that the joint contract employees from an entity which contract employee should have at least employment provision defines the employed more than 50 employees from its 12 months of service at that location. To ‘worksite’ of a temporary employee as home office and that is where the contract do so would take away the job the temporary help office, rather than employees received their assignments from restoration protections for an employee the various changing locations at which or reported to, those contract employees who is entitled to FMLA leave under the could have FMLA rights at the retail chain. the temporary employee performs his or This creates an arbitrary distinction between law. However, the primary her work.’’ Id. at 1153. sole and joint employers. . . .Under 29 C.F.R. responsibility for placement following The RFI requested specific § 825.106(e), an employer could contract for FMLA leave rests with the primary information, in light of the court’s an engineer, Employee A, for a six-month employer, the staffing firm in the decision in Harbert, on the definition in project, and then find out after the employee example given. The client company § 825.111 for determining employer has only been there for two weeks, that must consent to the placement only if it coverage under the statutory Employee A will need 12 weeks off due to has used another contract employee requirement that FMLA-covered the upcoming birth of his child. Upon from the same staffing firm to employers must employ 50 employees Employee A’s departure, the employer would temporarily fill the position during the then have to spend the time and expense 14 within 75 miles. training Employee B only to [be] forced to period of the FMLA leave. Some commenters who argued that return Employee A to the position, even the current regulations are sound and do Section 825.112 (Qualifying Reasons for though it had already spent time training two Leave, General Rule) not require change pointed to the individuals. The employer would then have legislative history that the term to spend additional time and expense To make it easier to find information ‘‘worksite’’ is to be construed in the bringing Employee A ‘‘up to speed’’ on the in the regulations, the Department has same manner as the term ‘‘single site of project and complete the training initially employment’’ under the WARN Act and started. 14 See 29 CFR 825.106(e). In the preamble to the the regulations under that Act. See final rule, the Department agreed with comments Pilchak Cohen & Tice stated that the that joint employment relationships present special comments by AFL-CIO and National regulation would be more palatable if, to compliance concerns for temporary help and Partnership for Women & Families. The qualify for FMLA job restoration with leasing agencies in that the ease with which they AFL-CIO agreed with the dissent in the client company, the contract may be able to meet their statutory obligations under FMLA may depend largely on the nature of Harbert that the Secretary’s employee had to have at least 12 months the relationship they have established with their interpretation of ‘‘single site of of service at that location. client-employers. However, the Department found employment’’ under the WARN Act The National Coalition to Protect there were no viable alternatives that could be regulations as applying equally to Family Leave commented that the court implemented by regulation that would not also deprive eligible employees of their statutory rights employees with and without a fixed in Harbert was correct in distinguishing to job reinstatement at the conclusion of FMLA worksite is a ‘‘permissible and between a jointly-employed employee leave. See 60 FR at 2182.

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reorganized some sections, including 29 CFR 825.114(a)(2)(i)(A)–(B). Many of list be converted into a per se rule portions of current § 825.112, which sets the comments—including several from whereby these conditions can never be forth the qualifying reasons that entitle health care providers—reported that the covered under the Act. That is, the flu— an eligible employee to FMLA-protected current regulatory definition is ‘‘vague no matter how severe—could not be a leave. For example, there is no single and confusing.’’ The American College serious health condition. Second, some place in the current regulations for the of Occupational and Environmental commenters recommended that the provisions that address leave taken for Medicine stated, ‘‘The term ‘serious ‘‘more than three days’’ period of the birth of a child or placement of a health condition’ is unnecessarily incapacity in the objective test be child for adoption or foster care. Rather, vague. Employees, employers and measured by work days as opposed to these provisions are scattered medical providers would be well served calendar days. Here, too, the throughout several sections of the if the FMLA were to more clearly define commenters cited to legislative history current regulations, including the criteria for considering a health to support their position: ‘‘[w]ith respect paragraphs (c) and (d) of current condition serious.’’ The American to an employee, the term ‘serious health § 825.112. Academy of Family Physicians agreed: condition’ is intended to cover No changes have been made to ‘‘The definition of a serious health conditions or illnesses that affect an current paragraphs (a) and (b) of this condition within the Act creates employee’s health to the extent that he section except for the addition of new confusion not only for the or she must be absent from work on a paragraph titles. Language from current administrators of the program and recurring basis or for more than a few paragraphs (c) and (d) addressing leave employers but also for physicians. days for treatment or recovery.’’ H.R. taken prior to the birth of a child or Requiring a physician to certify that a Rep. No. 103–8, at 40 (1993); S. Rep. No. placement of a child for birth or gastrointestinal virus or upper 103–3, at 28 (1993) (emphasis added). adoption has been moved to new respiratory infection is a serious health Third, a number of stakeholders sections in the proposed regulations that condition in an otherwise healthy commented that the two health care cover pregnancy, birth, adoption and individual is incongruous with medical provider visits in § 825.114(a)(2)(i)(B) foster care. See proposed §§ 825.120 and training and experience. * * * . must occur during the ‘‘more than three 825.121. [Moreover, t]he categories of ‘Serious days’’ period of incapacity. Finally, a Current paragraph (e) of this section Health Conditions’ are overly number of comments recommended that that addresses foster care has been complicated and * * * contradictory.’’ the required period of incapacity be moved to proposed § 825.122, which Many in the employer community extended from ‘‘more than three days’’ provides definitions for the various focused their comments on the to five or seven or ten days or more. family relationships covered by the Act. perceived lack of ‘‘seriousness’’ inherent At the same time, the Department also Similarly, current paragraph (g) of this in certain conditions the definition received many comments from section, which addresses leave for covers. The Coolidge Wall Company employees and employee groups who substance abuse treatment and an stated: ‘‘The DOL needs to limit the felt that the current objective test is a employer’s ability to take disciplinary definition of serious health condition to good, clear test that is serving its action in connection with substance what it was originally intended by intended purpose. For example, the abuse, has been moved to proposed Congress. For example, while a common National Partnership for Women & § 825.119 that specifically addresses cold or flu were never intended to be Families stated, ‘‘[T]he current leave in connection with substance serious health conditions, in case law regulations are crafted appropriately to abuse. courts have essentially done away with provide guidance on what constitutes a all the exclusions from the original serious health condition without Sections 825.113, 825.114, and 825.115 definition by stating that ‘complications’ imposing overly rigid criteria that could (Serious Health Condition, Inpatient (without defining this) could cause hinder the ability of workers to take Care, and Continuing Treatment) virtually anything (a cold, an earache, a leave when necessary.’’ Families USA In response to the RFI, the cut on finger) to become a serious health concurred: ‘‘To protect employers from Department received extensive condition.’’ ORC Worldwide concurred: employee abuse of this provision, the commentary on the regulatory definition ‘‘Uniformly, employers have found the regulations establish an objective of a serious health condition. The full definition of ‘serious health condition’ criteria to be used to determine whether range of comments is discussed in detail and the criteria for determining whether conditions presented qualify for leave. in Chapters III and IV of the or not an employee has a ‘serious health This criteria creates a standard that can Department’s 2007 Report on the RFI condition’ to be extremely broad and be applied in individual cases with comments (see 72 FR at 35563; 35571). very confusing.’’ The City of sufficient flexibility to adjust for There are six separate definitions of Philadelphia wrote, ‘‘What constitutes a differences in how individuals are serious health condition in the serious health condition? The definition affected by illness. It also specifies that regulations. Many stakeholders is not clear.’’ routine health matters cannot be addressed their comments toward what Stakeholders proposed a number of considered serious health conditions, is called the ‘‘objective test’’ contained potential revisions to the current unless complications arise.’’ in the regulations at § 825.114(a)(2), definition of serious health condition. After a review of the statute, the which defines ‘‘continuing treatment’’ First, many commenters focused on the legislative history, and the significant as: list of ailments in § 825.114(c), which feedback received from stakeholders in states ‘‘Ordinarily, unless complications response to the RFI, the Department has (i) A period of incapacity * * * of more arise, the common cold, the flu, ear not identified an alternative approach to than three consecutive calendar days *** aches, upset stomach * * * etc., are the definition that would still cover all that also involves: examples of conditions that do not meet the types of conditions Congress (A) Treatment two or more times by a health care provider * * * or the definition of a serious health intended to cover under the FMLA, but (B) Treatment by a health care provider on condition.’’ These commenters without also including some conditions at least one occasion which results in a recommended that, consistent with the that many believe the legislative history regimen of continuing treatment under the legislative intent that these conditions indicated should not be covered. The supervision of the health care provider. are not FMLA-covered conditions, this Department is well aware, as evidenced

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by the extensive comments on this issue covered by a company’s sick leave on this issue from both employer and to the RFI, that many of the policy policy. See H.R. Rep. No. 103–8, at 40 employee groups but has not been able choices made in defining a serious (1993); S. Rep. No. 103–3, at 28 (1993). to construct an alternative regulatory health condition have not been without The difficulty is in adequately drawing definition better than the objective test consequence. For example, the the line between conditions that usually of more than three days incapacity plus Department could put a higher degree of resolve in a few days, and those that are treatment. The language of current ‘‘seriousness’’ into the regulatory ‘‘serious.’’ Medical conditions that are § 825.114(c) listing common ailments definition if we chose to adopt any one benign to some may be truly and conditions—‘‘Ordinarily, unless of the suggestions offered by employers incapacitating to others. For example, complications arise, the common cold, to increase the required number of days the Communication Workers of America the flu, ear aches, upset stomach, * * * of incapacity or to simply adopt a work submitted a comment to the RFI noting etc., are examples of conditions that do days rather than a calendar days an employee who had a severe reaction not meet the definition of a serious standard. Doing so would also go a long to poison oak and was incapacitated for health condition’’—was intended to be way to eliminate what many employers more than three days even though most merely illustrative of the types of believe to be the ‘‘weekend’’ problem— individuals would have only a mild conditions that would not ordinarily that is, employers’ inability to know or reaction to poison oak. As a result of all qualify as serious health conditions. verify that an employee, who works a these factors, the Department has This sentence was not intended to regular Monday through Friday retained essentially the current create its own substantive definition of schedule, is off on Saturday and definition of ‘‘serious health condition,’’ serious health condition that Sunday, then calls in sick on Monday with some slight modifications as categorically excluded the listed claiming an FMLA absence, was in fact discussed below. conditions. Section 825.114(c) did not incapacitated during the two days he or The Department has reorganized the create a definition of covered conditions she was off work for the weekend, and structure of the definition so both separate and apart from the regulatory meets the more than three consecutive employees and employers can better definitions of serious health condition calendar days standard (see e.g., understand what constitutes a serious in § 825.114(a). health condition. As noted above, comment by Southwest Airlines Co., The Department’s original opinion ‘‘Unscheduled intermittent leave, which serious health condition is currently defined in six different ways, and only letter in 1995 stated that a minor illness is typically based on recurring episodes such as the common cold could not be of minor health conditions, gives one of the alternatives actually requires an absence of more than three a serious health condition because colds employees many opportunities to were on the regulatory list of non- misuse FMLA leave—to take vacations consecutive calendar days under the current regulations. The Department covered ailments. ‘‘The fact that an or a long weekend when they otherwise employee is incapacitated for more than would be unable to do so * * *.’’). believes that the new proposed structure will make the definition clearer. three days, has been treated by a health However, Congress itself did not care provider on at least one occasion provide a statutory ‘‘bright line’’ of Section 825.113 (Serious Health which has resulted in a regimen of demarcation for ‘‘seriousness.’’ The Act Condition) continuing treatment prescribed by the defines serious health condition as Current § 825.113 addresses the health care provider does not convert either ‘‘an illness, injury, impairment, or definition of a parent, spouse, son or minor illnesses such as the common physical or mental condition that daughter. In the proposed regulations, cold into serious health conditions in involves—(A) inpatient care in a the Department has moved this to the ordinary case (absent hospital, hospice, or residential medical § 825.122 for purposes of organization. complications).’’ Wage and Hour care facility; or (B) continuing treatment Proposed § 825.113 is titled ‘‘Serious Opinion Letter FMLA–57 (Apr. 7, 1995). by a health care provider.’’ 29 U.S.C. health condition’’ and provides the Unfortunately, this was an incorrect 2611(11). ‘‘Continuing treatment’’ is not general rules and accompanying statement of the law. As the Department further defined by the Act and Congress definitions governing what constitutes a explained in its subsequent 1996 declined to establish any bright-line serious health condition. Proposed opinion letter: rules of what was covered and what was § 825.113(a) provides the basic The FMLA regulations * * * provide not. See discussion infra about chronic definition of what constitutes a serious conditions specifically. examples, in section 825.114(c), of health condition currently found in conditions that ordinarily, unless A review of the Preamble § 825.114(a). Proposed paragraph (b) complications arise, would not meet the accompanying the current regulations contains a definition of what constitutes regulatory definition of a serious health reflects the struggle then, as now, to ‘‘incapacity’’ and incorporates language condition and would not, therefore, qualify craft such an objective definition of from current § 825.114(a)(2)(i) and (ii) for FMLA leave: the common cold, the flu, serious health condition that covers all without change. Proposed paragraph (c) ear aches, upset stomach, minor ulcers, the conditions intended to be covered contains the definition of ‘‘treatment’’ headaches other than migraine, routine by the Act while still giving meaning to found in current § 825.114(b) without dental or orthodontia problems, periodontal the legislative history that minor change. disease, etc. Ordinarily, these health ailments like colds and flus generally Proposed paragraph (d) addresses the conditions would not meet the definition in not be covered. It also reflects the choice types of treatments and conditions not 825.114(a)(2), as they would not be expected then, as now, between an objective test ordinarily expected to be covered by the to last for more than three consecutive versus a list of types of health definition and incorporates language calendar days and require continuing treatment by a health care provider as conditions that would qualify as from current § 825.114(c). As discussed defined in the regulations. If, however, any serious. See 60 FR at 2191. There is no above, this section has been the focus of of these conditions met the regulatory criteria question, as explained by the legislative considerable debate as to when the list for a serious health condition, e.g., an history, that Congress expected minor of conditions enumerated (colds, flus, incapacity of more than three consecutive conditions (those that last less than a etc.) are or are not serious health calendar days that also involves qualifying few days) to not be covered by the conditions. The Department received treatment, then the absence would be FMLA because they would likely be many comments in response to the RFI protected by the FMLA.

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Wage and Hour Opinion Letter FMLA– remains and a cross-reference to practical matter, that leaving the 86 (Dec. 12, 1996) (emphasis in § 825.113(b) has been included. treatment requirement open-ended does original). This objective regulatory not provide sufficient guidance for Section 825.115 (Continuing Treatment) definition was upheld as a reasonable determining when the employee has a implementation of the Act by two Proposed § 825.115, titled qualifying serious health condition. For United States Courts of Appeals even ‘‘Continuing treatment,’’ defines example, under the current definition, though the definition may sweep into its continuing treatment for purposes of an employer could decide that an coverage some conditions Congress did establishing a serious health condition. employee does not qualify for FMLA not necessarily anticipate would be The five different definitions are coverage a week after an employee has covered. See Miller v. AT&T Corp., 250 contained in § 825.115(a)–(e). Proposed been to see a health care provider on F.3d 820, 835 (4th Cir. 2001) (‘‘It is § 825.115(a) (‘‘Incapacity and one occasion and has had more than possible, of course, that the definition treatment’’) incorporates language from three days of incapacity but no follow- adopted by the Secretary will, in some current § 825.114(a)(2)(i)(A) and (B), up visit during that week-long time cases— and perhaps even in this one— which establishes that an employee can period. If the employee had a follow-up provide FMLA coverage to illnesses that meet this definition if, in connection visit three months later, however, the Congress never envisioned would be with a period of incapacity of more than test would be met but the employer may protected. We cannot say, however, that three consecutive calendar days, the not be aware of that fact. The the regulations adopted by the Secretary employee or family member has one Department does not believe the are so manifestly contrary to visit to a health care provider and a regulations should leave such congressional intent as to be considered regimen of continuing treatment, such determinations open-ended and arbitrary.’’); Thorson v. Gemini, Inc., as a prescription, or two visits to a unresolved indefinitely. Rather, the 205 F.3d 370, 380 (8th Cir. 2000) health care provider. period of incapacity and the timing of As discussed further below (‘‘Under the DOL’s definition, it is the health care provider’s treatment concerning proposed § 825.125, the possible that some absences for minor regimen should be connected in a Department proposes a conforming illnesses that Congress did not intend to temporal sense to meet the definitional change in the definition of ‘‘continuing be classified as ‘serious health requirement and not left undefined as treatment’’ to generally recognize conditions’ may qualify for FMLA under the current rule. physician assistants as health care protection. But the DOL reasonably The Department received many providers, which eliminates the need to decided that such would be a legitimate comments to the record on this issue, refer to them separately in this section trade-off for having a definition of including a number suggesting that the as performing ‘‘under direct supervision ‘serious health condition’ that sets out Department adopt into regulation the of a health care provider’’ (see current interpretation offered by the United an objective test that all employers can §§ 825.114(a)(2)(i)(A) and (iii)(A)). apply uniformly.’’). States Court of Appeals for the Tenth Otherwise, the current definition has Circuit that the two treatments actually The Department considered whether been retained with one further proposed occur during the period of more than the list of examples of non-serious clarification. The Department proposes three days’ incapacity in order to qualify ailments such as colds and flus in to specify that the two visits to a health as a serious health condition. See Jones current § 825.114(c) should be deleted care provider must occur within 30 days v. Denver Pub. Sch., 427 F.3d 1315, as surplusage. Both the Fourth and of the beginning of the period of 1323 (10th Cir. 2005) (‘‘[U]nder the Eighth Circuit courts treated the list of incapacity unless extenuating regulations defining ‘continuing examples of non-serious ailments in circumstances exist, instead of the treatment by a health care provider,’ the current § 825.114(c) as merely clarifying completely open-ended time frame ‘[t]reatment two or more times’ that common ailments such as colds and under the current regulations. described in 825.114(a)(2)(i)(A) must flu normally will not qualify for FMLA Accordingly, if an ill employee visits take place during the ‘period of leave because they generally will not his/her health care provider, is told not incapacity’ required by satisfy the regulatory criteria for a to report to work for more than 3 days 825.114(a)(2)(i).’’). However, the serious health condition. The due to the health condition but is not Department believes the proposed 30- Department continues to believe that the prescribed any medication, whether the day limitation is more appropriate in § 825.114(c) list serves a baseline condition is considered a serious health that it guards against employers making purpose as explanatory language similar condition for FMLA purposes will quick judgments that deny FMLA leave to that which is included in a preamble. depend on whether the health care when employees otherwise should Therefore, the sentence has been provider determines that additional qualify for FMLA protections. The retained in the proposed regulations. treatment is needed within 30 days of Department is also aware that Nevertheless, the Department agrees the beginning of the initial period of occasionally an employee may need a with the Fourth and Eighth Circuit incapacity (for example, whether the second visit to a health care provider or Courts of Appeals and restates its view provider determines that an additional further diagnostic testing within a 30- that the Department’s objective follow-up appointment should be day period but may experience regulatory definition is dispositive. scheduled in two weeks or two months). difficulty scheduling the second Section 825.114 (Inpatient Care) The beginning of the period of appointment in time. The regulations incapacity will usually correspond with therefore acknowledge an ‘‘extenuating Proposed § 825.114, titled, ‘‘Inpatient the date of the employee’s first absence, circumstances’’ exception to the 30-day care,’’ defines what constitutes inpatient however, as under the current rule in proposed § 825.115(a)(1). care. As noted above, the Department regulations, the more than three The Department is not proposing to proposes a stand-alone definition of calendar day period of incapacity may extend the 30-day rule to treatment by ‘‘incapacity’’ in § 825.113(b) in contrast commence on a day on which the a health care provider on at least one to the current regulations. Therefore, the employee is not scheduled to work. See occasion, which results in a regimen of definitional language of incapacity has 60 FR 2195. continuing treatment under the been removed from the definition of The Department proposes this supervision of the health care provider. ‘‘inpatient’’ care, but the requirement clarification because it believes, as a The Department’s enforcement

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experience suggests that the doctor visit where ‘the underlying health condition is advised to stay home and inside due to the which results in a regimen of continuing or treatment for it requires that the pollen count being too high). The definition treatment generally occurs close in time employee be absent from work on a has, therefore, been revised to include such to the more than three days of recurring basis * * * [A] patient with conditions as serious health conditions, even if the individual episodes of incapacity are incapacity. Accordingly, the 30-day severe arthritis may require periodic not of more than three days duration. limitation is not needed and could, in treatment such as physical therapy.’’’ 72 fact, extend the time period for FR at 35572 (internal citations omitted). 60 FR at 2195. receiving the regimen of treatment well Many employer commenters were Although the Department beyond what is current practice. The highly critical of the choice made by the acknowledges employers’ concerns Department, however, seeks comments Department in the 1995 final rule to regarding the inability to verify the on this approach, and whether this allow employees to ‘‘self-treat’’ for medical necessity for an absence regulatory provision should be changed. ‘‘any’’ period of incapacity due to involving self-treatment, to eliminate Proposed § 825.115(b), titled chronic conditions. See current coverage for such absences at this time ‘‘Pregnancy or prenatal care,’’ § 825.114(e): ‘‘Absences attributable to would, like changing the calendar days incorporates language from current incapacity under paragraphs (a)(2)(ii) or standard to a work days standard, effectively render many currently- § 825.114(a)(2)(ii) without change (iii) [chronic conditions] qualify for covered employees who have received except for a reference to the new FMLA leave even though the employee the protections of the law ineligible. As consolidated section found in proposed or the family member does not receive the Department acknowledged in the § 825.120 addressing leave for treatment from a health care provider Report on the RFI, it has no way to pregnancy and childbirth discussed in during the absence, and even if the distinguish between those employees detail below. The Department wishes to absence does not last more than three with chronic conditions who may be, in emphasize, however, that the phrase days.’’ Indeed, many employer their employers’ views, taking ‘‘incapacity due to pregnancy, or for commenters believe that coverage for advantage of the self-treatment standard prenatal care’’ includes time spent with absences due to chronic conditions a health care provider for prenatal care and those who are not and for whom the which are accompanied only by self- standard has worked very well. purposes. By definition, while an treatment impermissibly undercuts the employee is visiting a health care The Department does propose one statutory requirement that intermittent modification to the definition of a provider for prenatal care purposes (i.e., leave may be taken only when a doctor’s appointment), the employee chronic serious health condition. medically necessary (29 U.S.C. Current § 825.114(a)(2)(iii) provides that is unable to work and therefore 2612(b)(1)) as there is no way to verify incapacitated. In contrast, however, an a chronic serious health condition the medical necessity of an absence for ‘‘[r]equires periodic visits for treatment’’ employee is not entitled to FMLA leave self-treatment. (See, e.g., discussion of to visit the store to purchase infant (§ 825.114(a)(2)(iii)(A)). The current Workplace Consequences of regulations do not define the term clothes because the employee is not Unscheduled Intermittent Leave in the incapacitated in such circumstances. In ‘‘periodic.’’ The Department Report on the RFI comments, 72 FR at understands that some employers have a case where a male employee is needed 35575.) Employee representatives to care for (as defined by proposed chosen to provide their own definition commenting on the RFI, however, of the term ‘‘periodic’’ for FMLA § 825.124) a pregnant spouse who is stressed that self-treatment is incapacitated or requires prenatal care, purposes to the detriment of employees. appropriate for many chronic conditions For example, one employer defined the the male employee will be entitled to and that coverage for such absences is FMLA leave. For example, a male term to require a visit to a health care crucial to ensuring that employees with provider at least once a month in order employee’s pregnant spouse may have chronic serious health conditions are severe morning sickness and need his to satisfy this prong of the continuing able to maintain their employment. Id. treatment definition. The Department assistance. Similarly, a male employee at 35575; 35580. may be entitled to FMLA leave to believes that not all serious health While many employers urged the conditions Congress intended to cover accompany his pregnant spouse to a Department to alter the definition so doctor’s appointment for prenatal care. require such frequent visits. For that only chronic conditions that they example, an employee may have In this case, physical care may not be perceive to be ‘‘serious’’ will be covered, needed, but psychological care may be epilepsy, which renders the employee and to eliminate the self-treatment unable to work periodically but does not involved. provision, the Department declines to Proposed § 825.115(c), titled ‘‘Chronic require monthly doctor visits since the do so. As explained in the preamble conditions,’’ incorporates language from employee knows how to self-medicate. when the current rule was adopted in current § 825.114(a)(2)(iii) with one At the same time, because ‘‘periodic’’ is 1995, modification. The Department received left open-ended in the current extensive comments about the The Department concurs with the regulations, employers have struggled definition of ‘‘chronic’’ serious health comments that suggested that special with the ‘‘periodic’’ requirement. The conditions in response to the RFI. As a recognition should be given to chronic Department believes such a lack of conditions. The Department recognizes that definition leaves employers and result, the Department provided certain conditions, such as asthma and extensive discussion and explanation in diabetes, continue over an extended period of employees in an untenable situation. its Report on the RFI to the evolution of time (i.e., from several months to several (See Executive Summary and Chapters the ‘‘chronic’’ serious health condition years), often without affecting day-to-day IV and VI of the Department’s 2007 definition. See Chapter IV of the RFI ability to work or perform other activities but Report on the RFI comments, 72 FR at Report, 72 FR at 35571. may cause episodic periods of incapacity of 35550, 35571, 35588.) The Department As the Department explained in the less than three days. Although persons with proposes to define the term ‘‘periodic’’ Report on the RFI comments, ‘‘[t]here is such underlying conditions generally visit a as twice or more a year, based on an health care provider periodically, when no definition or specific mention of a subject to a flare-up or other incapacitating expectation that employees with ‘chronic’ serious health condition in the episode, staying home and self-treatment are chronic serious health conditions Act. The House and Senate Committee often more effective than visiting the health generally will visit their health care Reports do, however, refer to conditions care provider (e.g., the asthma sufferer who providers with that minimum

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frequency, but they may not visit them Section 825.120 (Leave for Pregnancy or related to pregnancy, and the mother’s more frequently, especially if their Birth) serious health condition following the conditions are stable. The Department The Department proposes to create a birth of a child. believes this is reasonable but seeks single section that addresses FMLA Proposed § 825.120(a)(6) has been public comments on whether the rights and responsibilities related to added to reemphasize that both spouses may each take their full 12 weeks of proposed definition of the term pregnancy and birth of a child. The leave to care for a child with a serious ‘‘periodic’’ is appropriate. current regulations contain regulatory Proposed § 825.115(d), titled health condition, regardless of whether guidance pertaining to pregnancy and ‘‘Permanent or long-term conditions,’’ the spouses work for the same birth throughout a number of regulatory incorporates language from current employer. sections. This new proposed section § 825.114(a)(2)(iv) without change. Proposed § 825.120(b), titled collects the existing guidance from the Proposed § 825.115(e), titled ‘‘[i]ntermittent and reduced schedule various regulatory sections into one ‘‘Conditions requiring multiple leave,’’ combines language from current comprehensive section. treatments,’’ incorporates language from §§ 825.203(b) and 825.204(a) on the use Section 825.120(a)(1) of the proposed current § 825.114(a)(2)(v), which of intermittent or reduced schedule rule, titled ‘‘[g]eneral rules,’’ restates provides coverage for any period of leave for pregnancy and birth of a child. language from current § 825.112(b) that absence to receive multiple treatments See 29 U.S.C. 2612(b)(1). Current both the mother and father are entitled by a health care provider for restorative § 825.203(b) provides that leave taken to FMLA leave for the birth of their surgery after an accident or other injury, after the birth of a healthy newborn child. Proposed paragraph (a)(2) of this or for a condition that would likely child may only be taken on an section restates language from current result in a period of incapacity of more intermittent or reduced leave schedule § 825.201 explaining that leave than three consecutive calendar days in if the employer agrees. Current following the birth of a healthy child the absence of medical intervention or § 825.204(a) explains that in these cases, treatment for conditions such as cancer, (‘‘bonding time’’) must be completed an employer may temporarily transfer severe arthritis, and kidney disease. within a year from the birth unless State an employee to an available alternative Multiple treatments are required to law provides for a longer period of time position that better accommodates the satisfy this prong of the continuing or with an employer’s agreement. Based need for intermittent or reduced treatment definition. on the statutory requirements (see 29 schedule leave if the employer does in U.S.C. 2612(a)(2)), if leave is extended fact agree to such a leave schedule. See Sections 825.116 Through 825.118 beyond a year from the birth per State 29 U.S.C. 2612(b)(2). The hours not (Reserved) law or employment agreement, the worked due to a reduced leave schedule Provisions in current § 825.116 additional leave would not receive the in this situation are considered defining the phrase ‘‘needed to care for’’ FMLA protections. Proposed paragraph intermittent FMLA leave and are a family member are moved to proposed (a)(3) of this section incorporates counted toward the employee’s FMLA § 825.124, discussed below. Provisions language from current § 825.202(a), that leave entitlement (see proposed in current § 825.117 addressing the husbands and wives who work for the § 825.205). Proposed § 825.120(b) ‘‘medical necessity’’ for taking and same employer may be limited to a emphasizes that if intermittent or scheduling intermittent or reduced combined 12 weeks of FMLA leave for reduced schedule leave is medically schedule leave are moved to proposed the birth or placement for adoption or necessary for a serious health condition §§ 825.202 and .203, discussed below. foster care of a healthy child, or to care of the mother or the newborn child, no Current § 825.118 defining ‘‘health care for an employee’s parent with a serious employer agreement is necessary. provider’’ is renumbered as § 825.125 of health condition. (See 29 U.S.C. the proposed rule. Section numbers 2612(f).) This limitation does not apply Section 825.121 (Leave for Adoption or .116–.118 of the current rule are, if only one spouse is eligible for FMLA Foster Care) therefore, reserved to reflect these leave. For example, if a wife For the same reasons discussed above, organizational changes, as discussed commenced employment with the the Department also proposes a single further below. employer only 6 months earlier and section that discusses FMLA rights and therefore does not meet the 12-month/ obligations with regard to adoption and Section 825.119 (Leave for Treatment of 1,250-hour eligibility requirement, but foster care. The current regulations Substance Abuse) the husband has worked for the contain guidance pertaining to adoption The Department proposes to create a employer for five years and otherwise and foster care throughout a number of single, consolidated section to address meets the eligibility requirements, the sections. This new proposed section substance abuse, which is currently husband could take twelve weeks of collects the existing guidance from the addressed in two different sections of leave to be with the newborn child. various regulatory sections into one the regulations, specifically However, if the husband and wife have comprehensive section on adoption and §§ 825.112(g) and .114(d). Current both worked for the same employer for foster care. § 825.112(g) provides that while FMLA five years and the husband already has Proposed § 825.121(a) is titled leave is available for substance abuse used six weeks of his entitlement to care ‘‘[g]eneral rules’’ and provides that leave treatment, treatment does not prevent an for his parent, the wife may be limited for adoption or foster care may begin employer from taking employment to six weeks to be with the newborn prior to the actual birth or adoption. action against an employee for violating child (the wife would also be entitled to Examples incorporated from current the employer’s substance abuse policy, leave for her own serious health § 825.112(d) include leave to attend such as being intoxicated at work. The condition related to the birth). counseling sessions, appear in court, section further explains when such Proposed § 825.120(a)(4) combines consult with an attorney or doctor, or action is appropriate. Current language from current submit to a physical examination. The § 825.114(d) states that substance abuse §§ 825.114(a)(2)(ii), 825.114(e), and proposed section also cross-references treatment may be covered as a serious 825.112(a) and (c) to make clear that a proposed paragraph (b) of this section, health condition in certain mother may be entitled to FMLA leave which explains the statutory limitation circumstances. for both prenatal care and incapacity that leave following the placement for

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adoption and foster care of a healthy Section 825.122 (Definition of Spouse, paragraph (f) to clarify that the example child can only be taken on an Parent, Son or Daughter, Adoption and of a statement by the employee as intermittent or reduced schedule basis if Foster Care) documentation should be a sworn, the employer agrees. See 29 U.S.C. Current § 825.113 provides definitions notarized statement. This provides 2612(b)(1). of spouse, parent, and son or daughter consistency with the other examples used in the current regulations. Second, Proposed § 825.121(a)(2) contains for purposes of determining whether an employee qualifies for FMLA leave. the Department proposes to add the language from current § 825.201 example of a submitted and signed tax explaining that leave for adoption or These definitions are repeated in current and proposed § 825.800. The return as evidence of a qualified family foster care must be completed within a relationship because in the case of an in Department proposes to move the year from the placement unless State loco parentis relationship, it may be existing section to proposed § 825.122 law provides for a longer period of time difficult to determine what kind of proof for purposes of organization. Proposed or with an employer’s agreement. Such may be reasonable to establish such a § 825.122(a) and (b) defining spouse and leave taken under State law or with an relationship. employer’s agreement beyond the one parent are unchanged except for minor editorial changes in paragraph (b) to the Section 825.123 (Unable to Perform the year period is not protected as FMLA definition of ‘‘parent.’’ Functions of the Position) leave. Section 825.121(a)(3) also Proposed § 825.122(c) that addresses, The Department proposes to incorporates language from current and is now titled, ‘‘[s]on or daughter,’’ § 825.202(a), that husbands and wives renumber current § 825.115 as § 825.123 has been rewritten for clarity. The one in the proposed regulation due to other working for the same employer are substantive addition the Department limited to a combined 12 weeks of leave organizational changes made. Proposed proposes is to specify that the paragraph (a), titled ‘‘[d]efinition,’’ for purposes of bonding with the determination of whether an adult child defines the statutory requirement that healthy adopted or foster child, to care has a disability should be made at the an individual be unable to perform the for the healthy child following the birth time leave is to commence. In Bryant v. functions of a job in order to qualify for of the child, and to care for an Delbar, 18 F.Supp.2d 799 (M.D. Tenn. FMLA leave. The current regulatory employee’s parent with a serious health 1998), the court conducted an analysis definition states that the employee must condition. As discussed above under of whether an adult child had a be ‘‘unable to work at all’’ or be unable proposed § 825.120, this limitation does disability for purposes of FMLA to perform ‘‘one or more of the essential not apply if only one spouse is eligible coverage based on facts and functions of the job.’’ The Department for FMLA leave. See 29 U.S.C. 2612(f). circumstances that occurred well after proposes no substantive changes to this Proposed § 825.121(a)(4) has been the leave commenced. In the definition. added to emphasize that both spouses Department’s view, employers should The Department proposes no decide FMLA eligibility based on may each take their full twelve weeks of substantive changes to current information at the time the leave begins. FMLA leave to care for an adopted or paragraph (b), now titled ‘‘[s]tatement of A rule that takes into account functions,’’ except to include language foster child with a serious health information acquired after-the-fact from current § 825.115 to clarify that the condition, regardless of whether the causes confusion about coverage for employer may provide a statement of spouses work for the same employer. both employees and employers. The the employee’s essential functions to the Proposed § 825.121(b), titled ‘‘[u]se of Department aims to eliminate such employee’s health care provider, and to intermittent and reduced schedule confusion by adding the proposed clarify that the employer may require leave,’’ combines language from current language. that the health care provider’s medical §§ 825.203(b) and 825.204(a) on the use Proposed § 825.122(c)(1), (2) and (3) certification specify what functions the of intermittent or reduced schedule remain unchanged from current employee cannot perform. This leave for adoption and foster care. § 825.113(c)(1), (2) and (3). information is part of the ‘‘medical Current § 825.203(b) provides that leave A new § 825.122(d) has been added facts’’ the statute states an employer taken after the placement of a healthy that defines ‘‘adoption.’’ The current may obtain as part of the medical child for adoption or foster care may regulations do not define the term, and certification. See 29 U.S.C. only be taken on an intermittent or the Department believes that providing 2613(b)(4)(B). such guidance will benefit both reduced leave basis if the employer Section 825.124 (Needed to Care for a agrees. See 29 U.S.C. 2612(b)(1). Current employees and employers. Language from current § 825.112(d) has been Family Member) § 825.204(a) explains that in such cases, retained to clarify that the adoption The current regulations define the an employer may temporarily transfer source is not relevant to FMLA leave phrase ‘‘needed to care for’’ a family an employee to an available alternative eligibility. member in § 825.116. The Department position that better accommodates the Proposed § 825.122(e), titled ‘‘[f]oster proposes to move this section to need for intermittent or reduced care,’’ incorporates the definition of proposed § 825.124 and clarify that the schedule leave. See 29 U.S.C. foster care from the current § 825.112(e) employee need not be the only 2612(b)(2). The hours not worked due to without change. individual or family member available a reduced leave schedule in this Proposed § 825.122(f) addresses the to care for the qualified family member. situation are considered intermittent documentation of relationships and A number of comments received in FMLA leave and are counted toward the incorporates the current language from response to the RFI recommended that employee’s FMLA leave entitlement (see § 825.113(d) with two clarifications. the Department impose some sort of proposed § 825.205). Proposed First, the current regulation states that limitation on what it means for an § 825.121(b) provides that if intermittent in addition to a child’s birth certificate employee to be ‘‘needed to care for’’ a or reduced schedule leave is needed for or a court document, a simple statement family member. A number of a serious health condition of the from an employee is sufficient to commenters, including the National adopted or foster child, no employer establish a family relationship. The Council of Chain Restaurants suggested agreement is necessary. Department adds language in proposed that ‘‘care’’ be limited to actual physical

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care only. The National Council of Physician Assistants noted that employee [would] be off under FMLA if Chain Restaurants also recommended physician assistants (PAs) are usually they had to make sure to subtract any that the employee be required to recognized as authorized health care holidays that the employee is eligible provide a written certification ‘‘that providers for FMLA purposes under the for during the time period they need to explains why the employee cannot rely existing provision that recognizes ‘‘[a]ny be off.’’ The State of Ohio said it upon other family members to care for’’ health care provider from whom an ‘‘supports the current regulations in this the qualifying family member. employer or the employer’s group area, and believes that scheduled Similarly, the law firm of Blank Rome health plan’s benefits manager will holidays should continue to be counted suggested that the regulations ‘‘be accept certification of the existence of a against an employee’s 12 weeks of modified to allow for leave under these serious health condition to substantiate FMLA leave when the employee is out circumstances only when there is no a claim for benefits’’ (current a full week. This provision would allow other alternative care giver or provider.’’ § 825.118(b)(4)). Other language in employee’s 12 weeks of FMLA leave to The Pepsi Bottling Group recommended § 825.118(c) of the current rule has be treated consistently with employees that employers be ‘‘able to deny or delay created confusion over the status of PAs, participating in other Ohio benefit leave if an employee has a family however, where the phrase ‘‘authorized programs.’’ The National Partnership for member at home who is available to to practice in the State’’ is defined to Women & Families disagreed: ‘‘Under provide necessary medical care.’’ The mean that ‘‘the provider must be the current regulations, such holidays United Parcel Service suggested authorized to diagnose and treat are counted as part of an employee’s ‘‘add[ing] language requiring that physical or mental health conditions FMLA leave. We believe such a policy requests for intermittent leave to care for without supervision by a doctor or other is inconsistent with how holidays are a family member be supported by a health care provider.’’ The Department typically treated in other leave contexts. representation that the employee is the proposes to clarify the status of PAs as If an employee is out on FMLA leave only family member available to provide health care providers under proposed and a scheduled holiday occurs, we such care.’’ Finally, Manufacturers § 825.125(b)(2) (formerly § 825.118(b)(2) believe the employee should be able to Alliance recommended the Department in the current rule) by adding use holiday leave just like other clarify that the term ‘‘needed to care’’ ‘‘physician assistants’’ to the list of employees rather than losing a day of for a family member means ‘‘that it [is] recognized health care providers and by FMLA leave. Thus, we would urge DOL necessary for the employee to actually deleting the requirement that PAs to modify the regulations accordingly.’’ be providing care during * * * work operate ‘‘without supervision by a A number of commenters noted a time.’’ doctor or other health care provider.’’ serious problem that would occur if After review of these comments, the The Department has made holidays were not counted toward Department has declined to adopt any of corresponding changes to proposed FMLA leave when an employee is out these proposals. The statute provides § 825.115 (Continuing treatment) and on a weekly block of leave; that is, such leave ‘‘[i]n order to care for the spouse, § 825.800 (Definitions) to reflect this a rule could result in the employee or a son, daughter, or parent, of the change that PAs would now generally obtaining greater than 12 weeks of employee, if such spouse, son, daughter, be considered health care providers. FMLA leave per year. One commenter or parent has a serious health stated: ‘‘For some employees counting condition.’’ 29 U.S.C. 2612(a)(1)(C). Section 825.200 (Amount of Leave) holidays or days not worked during a There is no additional limitation that This section explains the basic leave full week of absence, may mean the employee be the only available care entitlement provided under the Act, as employees could be gone beyond the 12 giver in order to take FMLA leave. well as how to determine the 12-month weeks/60 days if it is determined that Indeed, it will often be the case that period during which the FMLA leave non-work days or holidays are not there are multiple potential care entitlement may be used. The counted as part of the work week thus givers—none of whom is the only care Department asked in its December 2006 pro-longing an FMLA beyond the 60 giver without alternative—but all of RFI whether ‘‘scheduled holidays days/12 weeks[.]’’ The United Parcel whom would need to take FMLA leave [should] count against an employee’s 12 Service concurred: ‘‘DOL should in order to provide care. Moreover the weeks of FMLA leave when the maintain its current position that legislative history to the Act indicates employee is out for a full week as they holidays occurring during an that the ‘‘phrase ‘to care for’ *** be do now?’’ (71 FR at 69509) The employee’s scheduled work-week count read broadly to include both physical Department heard from all sides on this against the 12 weeks of leave. That and psychological care.’’ H.R. Rep. No. issue. The Unum Group stated, position is supported by the plain 103–8, at 36 (1993); S. Rep. No. 103–3, ‘‘Changing this process could add language of the FMLA, which provides at 24 (1993). The Department intends to difficulty to the already complex for 12 weeks of unpaid leave, not 12 retain the psychological care language method of calculating FMLA leave weeks of leave plus all holidays falling and to make clear that employers cannot entitlements.’’ The Pennsylvania therein.’’ The Commonwealth of impose an additional requirement upon Turnpike Commission agreed: ‘‘We feel Pennsylvania noted, ‘‘Because the law employees for FMLA leave purposes that scheduled holidays should references the absence period in terms that the employee needs to be the only continue to count against the 12 weeks of weeks, rather than days, and individual, or even family member, of FMLA. That block of time is covered considers calendar days rather than available to provide care to the qualified in the employee request—it is incidental work days, the practice of counting family member with a serious health that they would not have had to work holidays seems to be within the spirit of condition. due to a holiday. Because of differing the Act and regulations.’’ holiday eligibility for different Upon review of the comments Section 825.125 (Definition of Health employee groups (i.e. mgmt/union), it received to the record, the Department Care Provider) would greatly complicate the believes it may lack the authority to Current § 825.118 is renumbered as calculation of eligible days if holidays change this regulation to not count § 825.125 in the proposed rule to reflect were excluded. It would be more time against the FMLA entitlement holidays organizational changes. In its comments consuming for an FMLA administrator that fall within weeks-long blocks of to the RFI, the American Academy of to calculate the amount of time/days an FMLA leave. The statute grants

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employees ‘‘12 workweeks of leave’’ being required to report to work on the § 825.203 is proposed to be titled which the Department has interpreted to Friday holiday. ‘‘[d]efinition,’’ but no other changes are mean 12 weeks of the employee’s proposed. Section 825.201 (Leave To Care for a normal work schedule. See 60 FR at Parent) Language from current paragraph (b) 2203. (‘‘The statute uses the ‘workweek’ of § 825.203 governing the use of as the basis for the leave entitlement, Current § 825.201 on leave for the intermittent or reduced schedule leave and an employee’s normal ‘workweek’ birth or placement for adoption or foster after the birth, adoption, or foster care care of a child has been incorporated prior to the start of the FMLA leave is placement of a child has been moved to into proposed §§ 825.120 and 825.121 the controlling factor for determining proposed paragraph (c), titled ‘‘[b]irth or discussed above. The current § 825.202 how much leave an employee uses placement,’’ in proposed § 825.202, addresses how much leave a husband when switching to a reduced leave which also cross-references the birth and wife may take if they are employed schedule.’’) Holidays regularly occur and adoption/foster care placement by the same employer, in situations during normal workweeks. Discounting sections in proposed §§ 825.120 and where an employee wants to be with a the holidays that regularly fall within 825.121. healthy child following a birth or those weekly blocks of leave could well Proposed paragraph (b) now defines impermissibly extend an employee’s placement for adoption or foster care, or to care for a parent with a serious health ‘‘medical necessity’’ and is so titled. It leave period beyond the statutory 12 combines existing language from current normal workweeks of leave that the Act condition. The portions of current § 825.202 pertaining to leave for birth or § 825.117 and illustrations from current permits. Moreover, the current rule is § 825.203(c). A cross-reference to clear and apparently working well. See, placement of a child have been moved to proposed §§ 825.120 and 825.121, proposed § 825.306 also is proposed in e.g., Mellen v. Trustees of Boston paragraph (b), which explains what University, 504 F.3d 21, 25 (1st Cir. respectively. The remainder of the section has been renumbered as constitutes sufficient information on the 2007) (‘‘[The Department’s regulations medical certification form. governing] [w]hether holidays are to be § 825.201. Consistent with the current counted against intermittent leave taken regulatory provisions, proposed Current paragraph (d), which explains in an interval of a week or more * * * § 825.201 now highlights when leave how to count increments of leave taken, fit together naturally.’’). can be taken to care for a parent, as well has been moved to proposed § 825.205, as the statutory limitations on taking to be explained below. However, consistent with the such leave when a husband and wife discussion regarding § 825.205 below, work for the same employer. Section 825.203 (Scheduling of when an employee is taking leave in Intermittent or Reduced Schedule increments of less than one week, the Section 825.202 (Intermittent Leave or Leave) pertinent question for both overtime and Reduced Leave Schedule) holidays is whether the employee is Current § 825.117 discusses an Current § 825.203 explains that FMLA employee’s statutory obligation to required to be at work. If an employee leave can be taken in blocks or on an schedule foreseeable intermittent or is not required to be at work because of intermittent or reduced leave schedule reduced schedule leave for planned a holiday on the day he or she requested basis. Current paragraph (a) of this medical treatment so as to not unduly leave, then no leave would be charged section explains that FMLA leave can be disrupt an employer’s operations. See to the employee’s FMLA entitlement. taken intermittently or on a reduced 29 U.S.C. 2612(e)(2). The Department Thus, the Department proposes leave schedule due to a qualifying proposes to move this discussion to language in § 825.200(f) to clarify that, reason, and defines what constitutes proposed § 825.203 for organizational if an employee needs less than a full intermittent and reduced schedule purposes. The statute does not limit this week of FMLA leave, and a holiday falls leave. Current paragraph (b) explains obligation to intermittent or reduced within the partial week of leave, the that leave taken after the birth or schedule leave, but rather applies it to hours that the employee does not work placement for adoption or foster care of all foreseeable leave for planned on the holiday cannot be counted a healthy child may only be used medical treatment. Proposed against the employee’s FMLA leave intermittently or on a reduced leave § 825.302(e) (addressing employee entitlement if the employee would not schedule with the employer’s notice requirements for foreseeable otherwise have been required to report agreement. Current paragraph (c) leave) sets forth the requirement as to for work on that day. If an employee explains that leave may be taken on an any foreseeable leave for planned needs a full week of leave in a week intermittent or reduced leave schedule medical treatment. with a holiday, however, the hours the when medically necessary for planned employee does not work on the holiday and/or unanticipated medical treatment Proposed § 825.203 clarifies that an will count against the employee’s FMLA of a related serious health condition or employee who takes intermittent leave entitlement. Accordingly, for an for recovery therefrom, and to provide when medically necessary has a employee with a Monday through care or psychological comfort to an statutory obligation to make a Friday work week schedule, in a week immediate family member with a ‘‘reasonable effort’’ as opposed to an with a Friday holiday on which the serious health condition. Current ‘‘attempt’’ to schedule leave so as not to employee would not normally be paragraph (d) explains what limitations disrupt unduly the employer’s required to report, if the employee exist with regard to tracking increments operations. needs FMLA leave only for Wednesday of intermittent leave and states that The preamble accompanying current through Friday, the employee would use employers may limit leave increments § 825.203 also discussed whether only 2/5 of a week of FMLA leave to the shortest period of time that the overtime hours not worked may be because the employee is not required to employer’s payroll system uses to counted against an employee’s FMLA report for work on the holiday. account for absences or use of leave, entitlement. See 60 FR at 2202. This However, if the same employee needed provided it is one hour or less. issue is discussed in the preamble FMLA leave for Monday through Friday This section has been renumbered as below concerning proposed changes to of that week, the employee would use proposed § 825.202 for purposes of § 825.205, which addresses how to a full week of FMLA leave despite not organization. Current paragraph (a) from determine the amount of leave used.

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Section 825.204 (Transfer of an Section 825.205 (Increments of Leave for compromised, negatively affecting the Employee to an Alternative Position Intermittent or Reduced Schedule quality of service or, in hospital settings, During Intermittent Leave or Reduced Leave) actual patient care because of Schedule Leave) Current § 825.205 explains how to unscheduled intermittent leave.’’ Third, determine the amount of leave used as documented in the Department’s Current § 825.204 explains when an when an employee takes intermittent or 2007 Report on the RFI comments, employer may transfer an employee to reduced schedule leave. Current ‘‘intermittent FMLA leave can have an alternative position in order to paragraph (a) makes clear that ‘‘only the significant impacts on time-sensitive accommodate intermittent leave or a amount of leave actually taken may be business models. In many situations, the reduced leave schedule. The counted toward the 12 weeks of leave’’ absence of just a few employees can Department proposes no substantive to which an employee is entitled. have a significant impact.’’ 72 FR at changes to this section, but proposes to Current paragraph (b) explains how to 35632; see generally 72 FR 35632–35638 add subheadings for clarity. calculate the use of intermittent or (discussing impacts of unscheduled Specifically, proposed paragraph (a) is reduced schedule leave when an intermittent leave on certain time- titled ‘‘transfer or reassignment,’’ employee works part-time or variable sensitive industries). For example, the proposed paragraph (b) is titled hours. Current paragraph (c) explains City of New York stated that when its ‘‘compliance,’’ proposed paragraph (c) is how to calculate leave when an 911 operators do not show up for work titled ‘‘equivalent pay and benefits,’’ employee’s permanent schedule due to a chronic FMLA condition, the proposed paragraph (d) is titled changes and current paragraph (d) remaining employees must work longer ‘‘employer limitations,’’ and proposed explains how to calculate leave when an to maintain appropriate staffing and paragraph (e) is titled ‘‘reinstatement of employee’s schedule varies from week response levels: ‘‘The number of overtime hours being worked leads to employee.’’ Other than editorial to week. overtired people making critical life and changes, the Department proposes no The Department proposes to add language from current § 825.203(d), death decisions in an emergency driven other changes to this section. The environment.’’ As a result of all these Department asked no questions about which explains how to count increments of intermittent FMLA leave, factors, many employers suggested the transfer in its RFI but received a number Department allow employers to require of comments criticizing the current to paragraph (a) of this section, titled ‘‘Minimum increment.’’ Current that intermittent leave be taken in regulations particularly as regards paragraphs (b) through (d) of § 825.205 greater increments (e.g., two or four employees who have a recurring need have been renumbered as hour blocks or one day or one week for unscheduled intermittent leave. The § 825.205(b)(1), (2), and (3) for purposes blocks). full range of comments is discussed in of clarity, but no changes have been Conversely, a number of commenters Chapter VIII of the Report on the RFI made to the text of those sections. defended the current rule on minimum comments (see 72 FR at 35608). Some Paragraph (b) is proposed to be titled increments of leave. The Legal Aid commenters saw no basis to ‘‘[c]alculation of leave.’’ Society’s Employment Law Center asked differentiate between foreseeable and The Department received comments the Department to ‘‘please be mindful of unforeseeable need for leave in the expressing concerns about the size of the employee who, in an ideal world, context of this provision. ‘‘We do not increments of intermittent leave that would not suffer from such devastating see any basis for distinguishing between may be taken. No issue received more illnesses that wreck havoc on their own foreseeable vs. unforeseeable leaves for substantive commentary to the RFI than lives. Employees, too, struggle with purposes of such temporary transfers.’’ employee use of unscheduled chronic and episodic illnesses. The See comments by United Parcel Service, intermittent leave. Employers identified FMLA was specifically designed to Inc. Similarly, The Southern Company a number of problems with current provide leave in these instances.’’ The stated: § 825.203(d), which permits FMLA National Partnership for Women & leave to be taken in increments as small Families noted its strong support for the [Section 825.204 provides n]o similar as the employer’s payroll system will current regulations and specifically option * * * for employers to transfer or capture. These difficulties include basic urged the Department to resist making otherwise alter the duties of an employee administrative problems. Several any changes in the minimum increment who needs unscheduled or unforeseeable intermittent leave. Even if the employee’s commenters, including a supervisor at of leave that an employee could take: unscheduled intermittent absences may International Auto Processing, noted ‘‘Intermittent leave was designed to help result in substantial safety risks to the public that their payroll systems capture time employers by ensuring that workers are or co-employees, or could cause serious down to one minute, ‘‘Since our clocks not absent any longer than necessary. disruption to the operations of the employer, track time to the minute, I find myself While some employers now argue for such employee’s duties or position cannot be spending an unusual amount of time half-day increments of intermittent altered as a result of the unscheduled determining how many hours and leave, enforcing a four-hour leave intermittent leave. minutes the employee has used by using requirement would mean forcing his weekly time sheet. * * * This is a employees to miss more work than The Edison Electric Institute echoed the nightmare and I sometimes feel like the necessary, which is contrary to the same concern that under the current only thing I accomplish during the day statute and harmful to both employees regulatory scheme ‘‘[e]mployers do not is tracking intermittent leave.’’ Second, and employers.’’ The organization 9to5, have [the option] to transfer or employers also stated that the current National Association of Working otherwise alter the duties of an rule does not allow them to adequately Women also stated it ‘‘opposes any employee who needs unscheduled or staff their businesses, as it is very regulatory change that would impose unforeseeable intermittent leave.’’ The difficult to find replacement employees additional obstacles or requirements on Department requests further comments to cover absences that are less than one workers seeking to utilize intermittent on whether this regulatory provision half-day. The Detroit Medical Center FMLA leave. Currently, workers may should be changed and if so how. commented that, ‘‘Scheduling of take just the time needed for treatments, sufficient staff is regularly minimizing their own loss of pay and

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the strain on employers and co- of America, Inc. and the Airline whether the employee would be workers.’’ Industrial Relations Conference required to use some form of leave to The Department understands the commented, cover those hours in a non-FMLA burdens imposed on employers by In this industry, a six-minute absence can situation. (60 FR at 2202) The preamble employees using unscheduled result in a flight attendant avoiding a three- also distinguished between mandatory intermittent leave as demonstrated by day trip to which she or he was assigned. overtime, voluntary overtime, and the comments received in response to Most airlines ‘‘bank’’ flights or schedule overtime on an ‘‘as needed’’ basis. The the RFI. At the same time, the multiple flights to arrive and depart in a Department’s enforcement experience Department is aware of the importance concentrated time frame, followed by a and responses to the RFI lead us to of such leave to employees with serious relative lull in activity. An employee could believe that the distinction between health conditions. The Department is use intermittent FMLA leave to miss the heavy flight bank, causing the carrier to these three types of overtime, and the not proposing to increase the minimum either operate short-handed or to call in a focus on whether leave would normally increment of intermittent leave at this replacement worker who likely must be paid need to be used to cover the hours not time. a shift premium, then come in to work the worked, has caused confusion. See The Department also seeks comment rest of the shift during which no flights may Wage and Hour Opinion Letter FMLA– as to whether, in situations in which arrive or depart, leaving the carrier now over- 107 (July 19, 1999) (‘‘If overtime hours physical impossibility prevents an staffed. are on an ‘as needed’ basis and are not employee using intermittent leave or The Regional Transportation District part of the employee’s usual or normal working a reduced leave schedule from in Denver, Colorado commented that workweek, or is voluntary, such hours commencing work mid-way through a ‘‘due to the particular needs of the would neither be counted to calculate shift, an exception should be made to industry, [there is] difficulty scheduling the amount of the employee’s FMLA allow the entire shift to be designated as intermittent leave for bus and light rail leave entitlement nor charged to the FMLA leave and counted against the operators, particularly if the operator employee’s FMLA leave entitlement.’’) employee’s FMLA entitlement. For must be relieved in the middle of the (emphasis in original). The confusion example, if a railroad conductor is run. [We] would like clear guidance on has been compounded by language in required to conduct a train from one the limitations it can place on an the preamble discussing § 825.205 of the point to another, the employee cannot operator to avoid scheduling current rule, which states ‘‘[a]n begin or stop work in the middle of the intermittent leave during a run.’’ This employee’s FMLA leave entitlement trip. Similarly, an employee who works situation is also prevalent in the rail may only be reduced for time which the in a lab sealed at the start of the day industry. The Association of American employee would otherwise be required cannot enter the lab later or the work Railroads commented, to report for duty, but for the taking of performed would be lost. The the leave.’’ (60 FR at 2203) Department has addressed this scenario Railroads typically establish ‘‘pools’’ (and in prior guidance. See Wage and Hour ‘‘extra boards’’) comprised of train service The Department recognizes that employees who report to duty when called Opinion Letter FMLA–42 (Aug. 23, overtime by its nature is generally by the employer, based on train operations. assigned on an as needed basis, and the 1994). In that 1994 Opinion Letter, the When called in, the worker leaves on the Department stated that when a flight train and must be gone for the entire trip; fact that it is assigned as needed has no attendant needed only three hours of given the nature of the work, the worker bearing on whether the employee has intermittent leave to care for her sick cannot work a ‘‘reduced schedule leave’’ or volunteered to work or is being required mother every Friday, preventing her intermittently for less than the entire trip. If to work the additional hours. The from working a Friday flight assignment the employee cannot work the entire trip, he Department believes the correct focus during a two month period, only the or she must miss the entire trip no matter should be not on whether the employee how much FMLA leave the worker needs. three hours of leave needed each week would normally be required to use leave could be charged to FMLA, and the Instead of proposing specific to cover the overtime hours, but on remainder of the time may be charged language, the Department seeks whether the employee would otherwise to some other form of paid or unpaid comment from the public on this issue be required to report for duty but for the leave. Upon further review, the and what if any language should be taking of FMLA leave. If the employee Department questions whether such an included in the final rule to address would be required to work the overtime interpretation is appropriate. While the these situations within the statutory hours were it not for being entitled to Department’s interpretation allows requirements. FMLA leave, then the hours the employees to preserve their FMLA The Department also wishes to clarify employee would have been required to entitlement, it may expose them to the application of FMLA leave to (but did not) work may be counted disciplinary action based on the overtime hours. An employee may be against the employee’s FMLA additional hours of unprotected leave limited to working eight hours per day entitlement. Where, in such a case, the that they must take. The Department or 40 hours per week due to a serious employee works a part-time or reduced seeks comment on whether it is more health condition and, under FMLA, has leave schedule, the employee’s leave appropriate to extend FMLA protection the right not to work overtime hours usage in any given week is to the entire period of leave taken from without being subject to any discipline. proportionate to the employee’s the employee’s assigned schedule in It is a reduced leave schedule. scheduled hours in the week in which this situation. Employers continue to have questions, the leave is used. For example, if an A number of commenters to the however, as to whether and how the employee has a certified serious health record addressed this phenomenon. overtime hours not worked due to the condition limiting the employee’s work Southwest Airlines stated, ‘‘When serious health condition may be hours to 40 per week and that employee * * * employees are absent, flights do counted against the employee’s FMLA is scheduled for 48 hours in a week, the not take off without another employee entitlement. The preamble employee would take 8 hours of FMLA taking their place.’’ Therefore, even a accompanying current § 825.203 stated protected leave that week. This few minutes of FMLA leave can result that whether overtime hours not worked translates into 8/48ths or 1/6th of a in the employee missing an entire flight. can be counted against the employee’s week of FMLA leave. For ease of Similarly, the Air Transport Association FMLA entitlement is determined by tracking, an employer may convert these

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fractions to their hourly equivalent so leave program applies less stringent In the current regulations, the long as the conversion equitably reflects procedural standards for taking leave Department interpreted the clarifying the employee’s total normally scheduled than the FMLA. Current paragraph (i) clause regarding paid sick and medical hours. addresses the interaction between the leave in section 102(d)(2)(B) of the Act Where the employee’s schedule so use of compensatory time off in the as indicating congressional intent to varies from week to week such that no public sector and the use of FMLA allow employers to enforce their normal ‘‘normal’’ schedule or pattern can be leave. rules regarding the use of paid medical discerned, a weekly average of the hours The Department’s enforcement and sick leave when such leave was worked for the 12 weeks prior to the experience and responses to the RFI substituted for unpaid FMLA leave. The start of the FMLA leave is used to lead us to believe that current § 825.207 Department further interpreted the lack calculate the employee’s normal may be confusing to employees and of a similar clarifying clause in workweek as in proposed employers. For example, the differing paragraph (A) of that section of the § 825.205(b)(3) (current § 825.205(d)). In treatment of ‘‘medical leave,’’ ‘‘family statute to indicate that employers were all instances, the employer must select leave,’’ ‘‘sick leave,’’ and ‘‘vacation not permitted to enforce normal rules employees for mandatory overtime in a leave’’ makes it difficult both for regarding the use of paid vacation leave manner that does not discriminate employers to administer these or personal leave when such leave was against workers who need to use FMLA provisions and for employees to know substituted for unpaid FMLA leave. See leave (see § 825.220). The Department is what their rights and obligations are in preamble to current FMLA rule, 60 FR not proposing any regulatory changes substituting paid leave for unpaid at 2205 (‘‘There are no limitations, related to the overtime issue, which is FMLA leave. Additionally, both however, on the employee’s right to not addressed in the text of the current employees and employers have elect to substitute accrued paid vacation regulations and is discussed only in the expressed confusion as to the or personal leave for qualifying FMLA 1995 preamble to the current rule (see application of the employer’s normal leave, and the employer may not limit 60 FR at 2202). leave rules when paid leave is the timing during the year in which substituted for unpaid FMLA leave. paid vacation may be substituted for Section 825.207 (Substitution of Paid In response to the RFI, many Leave) FMLA-qualifying absences or impose employees and employee advocacy other limitations.’’). Current § 825.207 addresses the groups commented that the ability to interaction between unpaid FMLA leave substitute paid leave for any portion of The Department’s interpretation of the and employer provided paid leave. an otherwise unpaid FMLA leave in substitution of paid leave provision has Current paragraph (a) repeats the many cases was essential to the evolved over time, as has been reflected statutory language that paid leave may employee’s ability to take leave at all. in the Department’s opinion letters on be substituted for unpaid FMLA leave. Several employers and employer the subject. For example, while the Current paragraph (b) addresses groups, however, commented that the preamble to the current regulations substitution of accrued paid vacation, substitution provisions of the specifically stated that employers could personal, or family leave for unpaid regulations require that employees not restrict the time during the year in FMLA family leave for the birth or seeking to use accrued paid leave which an employee could substitute placement of a child for adoption or concurrently with FMLA leave be paid vacation leave for unpaid FMLA foster care or to care for a spouse, child treated more favorably than those who leave, the Department has clarified in or parent with a serious health use paid leave for other reasons. Still Opinion Letter FMLA–75 that where condition. Current paragraph (c) other employers stated that the various vacation leave was accrued pursuant to addresses when accrued paid vacation, rules for substituting different types of a generally applied restriction on when personal, or medical/sick leave can run paid leave have added to the costs of it could be used, an employee did not concurrently with the employee’s administering FMLA leave and have the right to substitute vacation unpaid FMLA leave for the employee’s discouraged the employers from leave for unpaid FMLA leave at any own serious health condition or when adopting or retaining leave policies that other time. Wage and Hour Opinion the employee is needed to care for a are more generous than required by the Letter FMLA–75 (Nov. 14, 1995) spouse, child or parent with a serious FMLA. (‘‘[W]here an employee may only use health condition. Current paragraph (d) Section 102(d)(2) of the FMLA leave under the employer’s plan during addresses the interaction between a governs the substitution of paid leave a specified period when the plant is disability plan and unpaid FMLA leave, for unpaid FMLA leave. 29 U.S.C. shut down, the employee has not fully as well as the interaction of unpaid 2612(d)(2). Paragraph (A) of that section vested in the right to substitute that FMLA leave with a workers’ of the statute addresses substitution of leave for purposes of FMLA.’’). In two compensation absence. Current ‘‘accrued paid vacation leave, personal other opinion letters on the substitution paragraph (e) addresses the use of paid leave, or family leave’’ for unpaid FMLA of paid vacation leave, the Department vacation or personal leave when taking leave for the birth or placement of a has recognized that both an employee’s FMLA leave. Current paragraph (f) child, or to care for a covered family right to use paid leave and an confirms that if paid leave is not member. Paragraph (B) of that section employer’s right to require substitution substituted at the option of the addresses substitution of ‘‘accrued paid are subject to the policies pursuant to employer or the employee, the vacation leave, personal leave, or which the leave was accrued. See Wage employee remains entitled to all medical or sick leave’’ for unpaid FMLA and Hour Opinion Letter FMLA–81 accrued paid leave. Current paragraph leave to care for a covered family (June 18, 1996) (‘‘[T]he Department (g) explains that paid leave used for member or for the employee’s own interprets these provisions to mean that purposes not covered by the FMLA serious health condition. Language in the employee has both earned the cannot count against the employee’s paragraph (B) clarifies that the FMLA [vacation] leave and is able to use that FMLA entitlement. Current paragraph does not require employers to provide leave during the FMLA leave period.’’); (h) states that an employer cannot apply paid sick or medical leave in any Wage and Hour Opinion Letter FMLA– the FMLA requirements if paid leave is situation in which they would not 61 (May 12, 1995) (‘‘The Department substituted and the employer’s paid normally do so. interprets these provisions to mean that

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the employee has both earned the leave requirements under the Act or any voluntarily waive the application of and is able to use that leave during the amendment made by it. See 29 U.S.C. such restrictions on an employee’s use FMLA period. * * * [I]n the particular 2653. Additionally, while the FMLA of paid leave, but they are not required situation that you describe, the prohibits discrimination against FMLA by the FMLA to do so. employer could not require the leave users, there is nothing in the Act The Department believes the employee to substitute [vacation] leave that requires employers to treat FMLA proposed language on the substitution that is not yet available to the employee users more favorably than other of paid leave for unpaid FMLA leave to use under the terms of the employer’s employees with regard to the provision also is more consistent with the trend leave plan.’’). of paid leave. Furthermore, while the toward employers providing employees On further consideration, the Act’s protections prohibit an employee with ‘‘paid time off’’ (PTO) policies that Department now believes that the better from losing any accrued benefits as a do not distinguish the right to leave interpretation of paragraph (B) of result of taking FMLA leave, nothing in based on the reason (vacation versus section 102(d)(2) of the Act is that it that section entitles an FMLA leave- illness) but instead give employees a simply clarifies the limits on the taker to any right or benefit other than pool of leave to use for whatever reason employer’s obligation to allow the that to which the employee would have they choose. PTO plans generally allow substitution of paid sick or medical been entitled had the employee not employees to take paid leave for any leave. For example, it clarifies that an taken the leave. See 29 U.S.C. 2614(a)(2) reason as long as the employer’s employer is not obligated to allow an and (3). procedures are satisfied. Under the employee to substitute paid sick leave To more consistently apply these current FMLA regulations, such PTO for unpaid FMLA leave when the principles, the Department proposes to policies were treated the same as paid employee is caring for a child with a combine current paragraphs (a), (b), and vacation or personal leave and serious health condition if the (c) of § 825.207 into one paragraph (a), employers were therefore not allowed to employer’s normal sick leave rules which now clearly states that the terms apply their normal leave rules to the allow such paid leave to be used only and conditions of an employer’s paid substitution of such leave for unpaid for the employee’s own illness. leave policies apply and must be FMLA leave. As several commenters to However, as the language in both followed by the employee in order to the RFI noted, this interpretation sections of the statute makes clear, in all substitute any form of accrued paid prohibited an employer who chose to cases the substitution of paid leave leave—including, for example, paid use a PTO leave plan from applying its pursuant to section 102(d)(2) of the Act vacation, personal leave, family leave, existing policies for taking leave when is limited to the substitution of accrued ‘‘paid time off’’ (PTO), or sick leave. the leave was being used for sick or paid leave. See FMLA’s legislative Additionally, the Department proposes family leave purposes. history: ‘‘Section 102(d) assures that an to clarify what is meant in § 825.207 by In addition to the language proposed employee is entitled to the benefits of the term ‘‘substitution,’’ which normally in this section as described above, the applicable paid leave, plus any means replacing one thing with another, Department also believes certain remaining leave time made available by but does not comfortably bear that safeguards for employees are necessary. the act on an unpaid basis.’’ H.R. Rep. meaning in the context of the FMLA. Therefore, the Department also proposes No. 103–8, Pt. 1, at 38 (1993); see also Thus, the Department proposes to add to add language clarifying that, when S. Rep. No. 103–3, at 27–28 (1993). language clarifying that for FMLA providing notice of eligibility for FMLA Additionally, as several commenters purposes ‘‘substitution’’ means that the leave to an employee pursuant to to the RFI noted, by prohibiting unpaid FMLA leave and the paid leave proposed § 825.300, an employer must employers from applying their normal provided by an employer run make the employee aware of any leave policies to employees substituting concurrently. This is standard practice additional requirements for the use of paid vacation and personal leave for under the current regulations and is not paid leave and must inform the unpaid FMLA leave, the current a change in enforcement policy. employee that he/she remains entitled regulations may have provided an Just as employees do not have the to unpaid FMLA leave even if he/she incentive to employers to scale back on right to use leave which has not yet chooses not to meet the terms and their provision of vacation and personal accrued, an employee’s ability to use conditions of the employer’s paid leave leave because they are unable to control accrued leave is also limited by the policies (such as using leave only in full its usage. Moreover, as other leave policies pursuant to which the day increments or completing a specific commenters pointed out, by allowing ‘‘applicable’’ leave is accrued (i.e., leave request form). The Department employees to substitute such paid leave available for use pursuant to the non- invites comment as to whether this for unpaid FMLA leave without meeting discriminatory terms and conditions of proposal appropriately implements their employer’s normal leave rules, the the employer’s policy). Therefore, for Congressional intent regarding regulations have placed employees example, if an employer’s paid vacation substitution of paid leave. See 29 U.S.C. using FMLA leave in a more favored leave policy prohibits the use of 2612(d)(2). position regarding the use of employer vacation leave in less than full day Language from current provided paid leave than their increments, employees would have no § 825.207(d)(1), explaining that coworkers taking vacation or personal right to use less than a full day of employers may apply more stringent leave for non-FMLA reasons. vacation leave regardless of whether the requirements for receipt of disability The Department agrees that an vacation leave was being substituted for payments, has been moved to new unintended consequence of the current unpaid FMLA leave. Similarly, if an proposed § 825.306(c). The remaining regulations on substitution has been to employer’s paid personal leave policy language from current § 825.207(d)(1), create tension with the plain language of requires two days notice for the use of making clear that substitution of paid the FMLA, which states that nothing in personal leave, an employee seeking to leave does not apply where the the Act or any other amendments made substitute personal leave for unpaid employee is receiving paid disability by it shall be construed to discourage FMLA leave would need to meet the leave, is retained in the proposed employers from adopting or retaining two-day notice requirement prior to section. However, the Department also leave policies more generous than any receiving the paid personal leave. wishes to clarify that while the policies that comply with the Employers, of course, have the right to substitution provisions are not

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applicable when an employee receives to the employee, by minimizing the The Department received a number of disability benefits while taking FMLA financial impact of unpaid leave, and to comments regarding this section. For leave, if the employer and employee the employer, by allowing the two example, the Disability Management agree to have paid leave also run benefits to run concurrently. Employer Coalition requested that the concurrently with FMLA leave to Furthermore, the Department believes Department better explain how supplement disability benefits, such as the proposed revision is consistent with employers should respond to an in the case where an employee only the U.S. Supreme Court’s decision in employee’s failure to pay his or her receives two-thirds of his or her salary Christensen v. Harris County, 529 U.S. share of health insurance premiums from the disability plan, such an 576 (2000), in which the Court found while on FMLA leave. In particular, the agreement is permitted under FMLA to that public employers always have the Coalition stated that while many the degree that it is allowable under right to cash out a public sector employers pay the employee’s share of applicable State law. This is in keeping employee’s compensatory time or health insurance premiums because of with the statutory mandate not to require the employee to use the time. concerns regarding continuation of discourage more generous leave policies coverage, employers have concerns Section 825.208 (Reserved) voluntarily provided by employers. about the cost of doing so. Other The language from current Current § 825.208 has been commenters raised similar concerns, § 825.207(d)(2), addressing the renumbered as proposed § 825.301, to especially when individuals do not interaction between workers’ be discussed below. The section is return to work after their FMLA leave compensation, light duty and the therefore reserved to avoid extensive has expired, and requested clarification FMLA, has been moved to proposed renumbering of other sections. regarding the timing of termination of § 825.207(e). Additional discussion of Section 825.210 (Employee Payment of an individual’s coverage for failure to light duty also can be found in Group Health Benefit Premiums) make payment. § 825.220(c) of the proposed rule as The Department proposes to add discussed below. Current § 825.207(e), This section addresses an employee’s language to current paragraph (c) of this which states that no limitations may be obligation to pay his or her share of section to make clear that if an employer placed by the employer on substitution group health plan premiums while on allows an employee’s health insurance of paid vacation or personal leave, FMLA leave. The Department received to lapse due to the employee’s failure to including leave earned or accrued under few comments regarding this specific pay his or her share of the premium as PTO plans, has been deleted in light of section in response to the RFI. Some set forth in the regulations, the the discussion of paragraph (a) above. commenters stated that it was difficult employer still has a duty to reinstate the Current § 825.207(h), which states that to obtain payment for an employee’s employee’s health insurance when the when an employer’s procedural share of health benefit premiums during employee returns to work and can be requirements for taking paid leave are the period the employee is on FMLA liable for harm suffered by the employee less stringent than the requirements of leave. Employer representatives also if it fails to do so. Alternatives exist in the FMLA, employees cannot be expressed concern about their ability to most cases to terminating an employee’s required to comply with higher FMLA recoup their portion of health insurance health insurance when premium standards, has been deleted because it premiums when an employee decides payments are not made. For instance, an does not properly implement section not to return from FMLA leave. Other employer could make payroll 103 of the FMLA, which states that commenters requested that the deductions to recoup such payments employers may require sufficient FMLA Department clarify an employer’s when an employee returns to work certification in support of any request responsibility to maintain health without violating the FMLA. To the for FMLA leave for either the insurance coverage when an employee extent recovery is allowed, the employer employee’s own serious health on FMLA leave fails to pay his or her may recover the costs through condition or a covered family member’s portion of the premiums. deduction from any sums due to the serious health condition. It also is in The Department is proposing to revise employee (e.g., unpaid wages, vacation conflict with section 102(e) of the paragraph (f) of this section by deleting pay, profit sharing, etc.), provided such FMLA, which requires employees to the word ‘‘unpaid.’’ As noted in deductions do not otherwise violate provide 30 days notice for foreseeable § 825.207(e), an individual who is applicable Federal or State wage leave whenever possible for the birth or simultaneously taking FMLA leave and payment or other laws. See § 825.213 of placement of a child or for planned receiving payments as a result of a the current and proposed regulations. medical treatment. Current § 825.207(f) workers’ compensation injury is not on Section 825.213 (Employer Recovery of and (g) remain unchanged but have been unpaid leave. No further changes are Benefit Costs) redesignated as paragraphs (b) and (c) of proposed for this section. For further this section. discussion of an employer’s This section explains what process an Finally, the Department proposes to responsibility to maintain the health employer must follow to recoup revise current § 825.207(i) to allow the insurance coverage of an employee on insurance premiums from an employee use of compensatory time accrued by FMLA leave, see proposed § 825.212 as when the employee does not return public agency employees under the Fair discussed below. from leave in certain circumstances. A Labor Standards Act (FLSA) to run few employer representatives responded concurrently with unpaid FMLA leave Section 825.212 (Employee Failure To to the Department’s RFI with concerns when leave is taken for an FMLA- Make Health Premium Payments) about this process, with some suggesting qualifying reason. Although the Current § 825.212 explains that an that employees on FMLA leave be Department did not receive many employer may terminate an employee’s provided coverage under the comments dealing specifically with the health insurance coverage while the continuation coverage requirements of issue of compensatory time in response employee is on FMLA leave if the Title X of the Consolidated Omnibus to the RFI, those received indicate a employee fails to pay the employee’s Budget Reconciliation Act of 1986, as general agreement that the substitution share of the premiums, the grace period amended, 29 U.S.C. 1161–1168 of compensatory time for otherwise has expired, and the employer provides (COBRA). These commenters were unpaid FMLA would be beneficial both sufficient notification to the employee. particularly concerned that the current

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system requires that employers provide having to worry whether their job was This issue has also been the subject of health insurance, and pay the majority secure, was critical to their being able to many requests for clarification to the of the premium, for individuals on manage their own serious health Department over the years. Employers, FMLA leave who have no intention of condition or caregiving responsibilities. and their representatives, almost returning to work once their leave The National Partnership for Women & uniformly stated that the current entitlement expires. The Department Families stated that the job restoration regulatory distinction between an understands these concerns, but cannot provisions of FMLA ‘‘promote[ ] greater attendance bonus and a production adopt the suggested change under workforce continuity and stability by bonus has a ‘‘chilling effect on employer current law. helping employees retain their jobs incentive plans.’’ These commenters The Department proposes to move when an emergency strikes.’’ argued that the current regulatory language from existing § 825.310(h), The Department believes that this requirements are illogical and unfair, which deals with certification regulatory provision meets the intent of and have caused many companies to requirements when an employee fails to Congress in this area, by providing modify, or eliminate altogether, perfect return to work due to the continuation, employees with job protection while attendance reward programs. Other recurrence, or onset of a serious health allowing employers some flexibility to employers stated that they would not condition, to this section, as it believes return the employee to the same or an consider implementing a perfect it is more appropriately placed here equivalent position, and that no changes attendance program because, by with other issues involving repayment are appropriate under current law. requiring that employers provide of health premiums. This language The Department proposes minor awards to individuals with less than states that the cost of the certification an clarifications along with organizational perfect attendance, these commenters employee must obtain to avoid the changes to this section. First, the believe that the Department has placed repayment of health insurance Department proposes to add a heading employees taking FMLA leave in a premiums when the employee does not titled ‘‘[g]eneral rule,’’ emphasizing that better position than those who take no return from leave must be borne by the the section sets forth the general rule on leave. Many employees also commented employee, as well as any travel costs. reinstatement obligations under the on the perceived unfairness of providing FMLA. Proposed § 825.214 retains the a ‘‘perfect attendance’’ award to Section 825.214 (Employee Right to language from current § 825.214(a) Reinstatement) individuals who had been absent from without change. Language from current work for up to 12 weeks of the eligible Current § 825.214 addresses an paragraph (b) on limitations on time period. Several employer employee’s reinstatement rights upon reinstatement has been moved to representatives suggested that the returning to work. This section also proposed § 825.216(c) and combined Department permit employers to makes clear that even if an employee is with language from current § 825.216(d) administer attendance incentives and unable to return to work as a result of on concurrent workers’ compensation reward perfect attendance without the serious health condition and would absences during FMLA leave, for regard to the reason for an absence, thus not have FMLA reinstatement rights, the organizational and clarification allowing employers to treat all employee may have rights under the purposes. individuals absent for work in the same ADA. Section 825.215 (Equivalent Position) manner. In response to the Department’s RFI, Several employee organizations stated employers expressed concern about the Current § 825.215 defines what that the current regulatory scheme impact on their business operations of constitutes an ‘‘equivalent position’’ for appropriately recognizes that employees reinstating an individual to his or her purposes of reinstatement. Current should not be penalized for exercising same position. Many of these paragraph (a) explains that an their FMLA rights. These commenters commenters were particularly equivalent position is one ‘‘virtually believed that permitting employers to concerned about the interplay between identical’’ to the employee’s former exclude employees on FMLA leave from the use of intermittent leave by an position. Current paragraph (b) instructs award programs would discourage employee and that employee’s right to employers to give an employee a employees from taking FMLA leave. reinstatement. These commenters ‘‘reasonable opportunity’’ to fulfill any The Department proposes several argued that, in many cases, such conditions the employee needs to fulfill, changes to this section. No substantive individuals should not be entitled to job such as attending a course, if the changes have been made to proposed restoration under current § 825.214(b) employee is no longer qualified for his paragraph (a), titled ‘‘[e]quivalent because they are unable to perform an or her position as a result of an FMLA position,’’ proposed paragraph (b), titled essential function of their position, such absence. Current paragraph (c) defines ‘‘[c]onditions to qualify,’’ or current as to work overtime or meet regular and equivalent pay, including when an paragraph (c)(1). The Department reliable attendance requirements. employee is entitled to pay increases proposes changes to current paragraph Commenters in certain industries, such and certain types of bonuses when (c)(2) regarding bonuses to allow an as those where individuals are trained taking FMLA leave. Current paragraph employer to disqualify an employee to work with particular consumers, and (d) defines what constitutes ‘‘equivalent from a bonus or award predicated on the smaller employers stated that returning benefits.’’ Current paragraph (e) defines achievement of a goal where the an individual to his or her same what constitutes ‘‘equivalent terms and employee fails to achieve that goal as a position can be difficult, even when the conditions’’ of employment, and current result of an FMLA absence. Of course, individual takes block leave. These paragraph (f) confirms that the an employer could not disqualify only employers often have to hire an definition of ‘‘equivalency’’ does not those individuals on FMLA-qualified individual to replace the employee extend to de minimis or intangible, leave and allow other employees on taking FMLA leave, and are uncertain unmeasurable aspects of the job. other forms of non-FMLA leave to how to manage the employee’s return to The Department received extensive receive such an award without violating work and their obligation to provide feedback regarding the impact of the the FMLA’s non-discrimination reinstatement. On the other hand, requirements of this regulatory section requirement. numerous employees stated that the on employer incentive programs, The Department proposes this change ability to take FMLA leave, without especially perfect attendance awards. because the wording of current

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§ 825.215(c)(2) on bonuses is confusing FMLA leave to receive these awards. take intermittent leave for chronic and because of the unfairness perceived The Department did not intend, nor serious health conditions. For example, by both employees and employers as a does the Act itself intend, that the FNG Human Resources argued that an result of allowing an employee to obtain FMLA regulations result in a reduction employer should have the right to a perfect attendance award when the of benefits to all employees. replace employees who ‘‘consistently employee has been absent on FMLA Therefore, the Department proposes to use up to 11+ weeks of FMLA for year leave. The confusion stems from eliminate the existing language of after year.’’ One commenter requested language in the current section, which current § 825.215(c)(2) and replace it that the Department more clearly define distinguishes between bonuses for job with the following: the employer’s obligations should a performance, such as those based on Equivalent pay includes any bonus or layoff occur. A law firm asked that the production goals, versus bonuses based payment, whether it is discretionary or non- Department clarify the interaction on the absence of certain events discretionary, made to employees consistent between § 825.216(a), which ‘‘suggests occurring, and includes as examples with the provisions of paragraph (c)(1) of this that a seniority provision in a [collective both bonuses for perfect attendance and section. However, if a bonus or other bargaining agreement] would not yield for working safely with no accidents. payment is based on the achievement of a to the FMLA’’, and § 825.700, which, Moreover, the language of the current specified goal such as hours worked, the commenter indicated, suggests the products sold or perfect attendance, and the regulation incorrectly groups together employee has not met the goal due to FMLA opposite result. bonuses for perfect attendance and leave, then the payment may be denied, The Department is not proposing any safety as not requiring performance by unless otherwise paid to employees on an changes to this section to address the the employee but rather the absence of equivalent non-FMLA leave status. For use of intermittent leave for chronic occurrences. This defies the plain example, if an employee who used paid serious health conditions. Likewise, the meaning of attendance. Employers are vacation leave for a non-FMLA purpose Department believes the current uncertain whether their employee would receive the payment, then the regulatory language in this section and incentive plans will be in violation of employee who used vacation leave for an current § 825.700 adequately explains the current regulation. See Wage and FMLA-protected purpose also must receive the interaction between the job the payment. Hour Opinion Letter FMLA–110 (Sept. restoration provisions of FMLA and 11, 2000) (Employer inquiry regarding a The Department believes this proposed collectively-bargained seniority plan the employer believed to be a language better reflects the requirements provisions. ‘‘production incentive’’ plan, which the of the statutory scheme. Minor changes have been made to this Department found analogous to a perfect The Department has re-titled section for purposes of greater clarity. attendance program). paragraphs (e) and (f) in the proposed The only change the Department Section 825.215(c)(2), containing this rule. The final sentence of the current proposes to current paragraph (a)(1) is to confusing distinction between a bonus section, which reminds employers that incorporate the last sentence of for perfect attendance or safety versus putting an employee in a job slated for § 825.215(f) which, as discussed above, meeting or exceeding production goals, lay-off when the employee’s original states that restoration to a job slated for also seems to conflict with the language position would not be eliminated would lay-off would not meet the requirements in current § 825.215(d)(5), which states not meet the definition of an equivalent of an equivalent position. This is that an employee is ‘‘entitled to changes position, has been moved to proposed proposed for organizational and in benefits plans, except those which § 825.216(a)(1) where related issues are clarification purposes, but no may be dependent upon seniority or discussed, for organizational and substantive change is intended. accrual during the leave period, clarification purposes. Similarly, the Department proposes to re-order current paragraph (b) as immediately upon return from leave or Section 825.216 (Limitations on an paragraph (a)(3) for purposes of to the same extent they would have employee’s right to reinstatement) qualified if no leave had been taken. For organizational structure and clarity. The example, if the benefit plan is Current § 825.216 addresses the Department proposes a new paragraph predicated on a pre-established number limitations on an employee’s right to (c) to address an employer’s obligations of hours worked each year and the reinstatement. Specifically, current when an employee cannot return to employee does not have sufficient hours paragraph (a)(1) addresses what work after FMLA leave is exhausted as a result of taking unpaid FMLA leave, happens when an employee is laid off because the serious health condition the benefit is lost.’’ Current or the employee’s shift is eliminated continues. This section combines § 825.215(d)(5) is more consistent with while the employee is on FMLA leave. language from current §§ 825.214(b) and 29 U.S.C. 2614(a)(3), which provides Current paragraph (b) addresses what 825.216(d), because both sections that nothing in that section shall be happens when an employee taking address limitations on reinstatement construed to entitle any restored FMLA leave was only hired for a when an employee has exhausted his or employee to—(A) the accrual of any specific term or project. Current her FMLA leave entitlement and is seniority or employment benefits during paragraph (c) addresses limitations on unable to perform the essential any period of leave; or (B) any right, reinstatement with regard to ‘‘key functions of his or her job, but no benefit, or position of employment other employees.’’ Current paragraph (d) substantive changes are intended. The than any right, benefit, or position to addresses rules governing the Department has not made any changes which the employee would have been interaction between FMLA leave and a to current paragraph (c) except to re- entitled had the employee not taken the workers’ compensation absence when designate it as paragraph (b). Current leave. the employee is unable to return to work § 825.312 (g) and (h), which address the The Department also is concerned at the end of the 12-week FMLA leave fraudulent use of FMLA leave and that the regulatory language in current period. outside employment during FMLA § 825.215(c)(2) provides the wrong The Department’s RFI generated a leave, respectively, and therefore also incentive to employers to eliminate handful of comments regarding this address limitations on reinstatement, perfect attendance awards because of section. Several of the comments have been renumbered as proposed the inequity perceived by coworkers of focused on the difficulty in providing § 825.216 (d) and (e) for organizational allowing employees who have taken job restoration rights to individuals who purposes.

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Sections 825.217 through 825.219 this section, and to clarify two other retains rights under FMLA to job restoration (Explanation of key employees and their provisions. to the same or an equivalent position held rights) First, the Department proposes new prior to the start of the leave for a cumulative language to current paragraph (b) that period of up to 12 workweeks. This Taken together, current §§ 825.217, sets forth the remedy for interfering ‘‘cumulative period’’ would be measured by 825.218 and 825.219 define the term the time designated as FMLA leave for the with an employee’s rights under the workers’ compensation leave of absence and ‘‘key employee’’; explain the meaning of FMLA. While this language also has the phrase ‘‘substantial and grievous the time employed in a light duty been included in proposed § 825.300, assignment. The period of time employed in economic injury’’ to the employer’s which deals specifically with employer a light duty assignment cannot count, operations; and provide an explanation notice obligations, and proposed however, against the 12 weeks of FMLA of the rights of a key employee. A § 825.301, which addresses what leave. handful of comments received in triggers an employer’s designation Wage and Hour Opinion Letter FMLA– response to the Department’s RFI obligations, the Department believes it requested that the Department allow 55 (Mar. 10, 1995). is important that the general rule Numerous employers, and their employers greater flexibility to governing an employer’s obligations designate ‘‘key employees’’, particularly representatives, urged the Department to under the Act also provide guidance on apply the current regulatory language to in the safety industry. A law firm the remedy for such violations. First, representing employers also requested both voluntary and mandatory light numerous commenters to the RFI asked duty assignments. The National that the Department provide guidance the Department to strengthen or clarify Association of Convenience Stores, the regarding the responsibility of a the regulatory provisions implementing U.S. Chamber of Commerce, the Society placement agency to provide job the Act’s prohibitions on interference for Human Resource Management, and restoration rights when the secondary and discrimination. 29 U.S.C. 2615(a)(1) others asked the Department to require employer refuses to reinstate the and (2). For example, the University of that employees accept light duty individual because the position was California, Hastings College of Law, assignments, consistent with their ‘‘mission-critical.’’ Center for Worklife Law requested that medical restrictions, in lieu of taking the Department ‘‘clarify that The exemption for highly FMLA leave. The College and interference with an employee’s right to compensated employees is defined by University Professional Association for take FMLA leave includes not only statute as applying only to a salaried Human Resources stated that ‘‘[i]n many eligible employee who is among the withholding information but also deterring employees from exercising cases, light duty may be a better highest paid 10 percent of the alternative than placing the employee employees employed by the employer their rights. * * *’’ The Center for Worklife Law asserted that ‘‘employees on leave, as it allows the employer within 75 miles of the facility at which greater flexibility in meeting its staffing the employee is employed. See 29 returning from [FMLA] leave have been given poorer quality assignments, been needs’’ while the Society for Human U.S.C. 2614(b)(2). While the Department Resource Management noted that understands that requiring job subjected to heightened scrutiny of their work and received undeservedly ‘‘[e]xperience has shown that employees restoration for some lower-paid with minor injuries generally recover positions in public safety and other negative evaluations.’’ Similarly, the law firm of Kennedy, Reeve & Knoll and more quickly if they are working, industries may cause ‘‘substantial and gradually returning to their former grievous economic injury’’ in particular several individual workers asserted that some employers actively discourage the capabilities.’’ As an alternative, many situations or may cause hardship to the employers suggested that the employer, the Department believes that taking of FMLA leave, especially intermittent leave, or penalize those Department revise the regulation to any revisions to address such situations make clear that light duty work counts would require a change in the statute. employees who take such leave. Second, the Department also received against an employee’s 12-week FMLA Minor changes to § 825.217(b) have comments about the language contained entitlement. The American Bakers been made to update the reference to the in current § 825.220(d) stating that Association, the National Coalition to definition of ‘‘salary basis’’ as now where an employee has voluntarily Protect Family Leave, the National contained in 29 CFR 541.602 accepted a light duty position in lieu of Business Group on Health, the Retail (previously codified in 29 CFR 541.118) taking FMLA leave, the employee’s right Industry Leaders Association, the and to add ‘‘computer employees’’ to to restoration to the same or an National Restaurant Association, several the list of employees who may qualify equivalent position is available until 12 management-side law firms, and for exemption from the minimum wage weeks have passed within the 12-month individual employers and human and overtime requirements of the FLSA period, including all FMLA leave taken resource professionals urged the under those regulations if they meet and the period of ‘‘light duty.’’ The Department to rescind Opinion Letter certain duties and salary tests. The Department is aware that at least two FMLA–55 and explicitly provide ‘‘that Department did not receive any courts have interpreted this language to time spent in light duty away from the comments specific to §§ 825.218 and mean that an employee uses up his or employee’s usual job counts against the 825.219 in response to the RFI and is her twelve week FMLA leave 12 weeks of FMLA entitlement for all not proposing any changes to these entitlement while performing work in a purposes.’’ provisions. light duty assignment. See Roberts v. Other commenters, including the Section 825.220 (Protection for Owens-Illinois, Inc., 2004 WL 1087355 AFL-CIO, the Coalition of Labor Union Employees Who Request Leave or (S.D. Ind. 2004); Artis v. Palos Women, Families USA, the Maine Otherwise Assert FMLA Rights) Community Hospital, 2004 WL 2125414 Department of Labor, and the University (N.D. Ill. 2004). These holdings differ of Michigan Center for the Education of Current § 825.220 explains what from the Department’s interpretation of Women, argued that counting light duty actions taken by employers constitute the current regulation, as further work as FMLA leave is not appropriate. an interference with an employee’s expressed in a 1995 DOL opinion letter Some employers, and organizations rights under the FMLA. The Department which states that an employee who representing human resource proposes to change two provisions in voluntarily accepts a light duty position: professionals, also shared this view. For

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example, MedStar Health, Inc. stated Many RFI commenters asked that the urged the Department to prohibit both that ‘‘[w]hen an employee works, even Department clarify the language in prospective and retrospective waivers, in an alternate light duty capacity, subsection (d) that states ‘‘[e]mployees stating that requiring Departmental or he/she is not absent under the meaning cannot waive, nor may employers court approval of voluntary settlements of the FMLA.’’ induce employees to waive, their rights in no way jeopardizes the public policy Some commenters, such as the under FMLA.’’ Some courts have in favor of settlement and protects National Partnership for Women & disagreed as to whether this language vulnerable workers who might be Families, argued that the Department’s prohibits only the prospective waiver of induced to waive their FMLA rights current position, which counts the time FMLA rights, such as the right to 12 rather than forfeit income. spent in a light duty position for weeks of leave, or also prohibits the The Department proposes to clarify purposes of job restoration rights but not retrospective settlement of FMLA claims the language in paragraph (d) in light of FMLA leave entitlement, struck the based on past employer conduct, such the Fourth Circuit’s decision in Taylor appropriate balance. Still others, such as as through a settlement agreement. which held that employees cannot the University of California, Hastings Compare Taylor v. Progress Energy, 493 voluntarily settle their past FMLA College of Law, Center for Worklife Law, F.3d 454 (4th Cir. 2007), petition for claims. The Department disagrees with expressed concern that counting light cert. filed, 75 U.S.L.W. 3226 (Oct. 22, that reading of the regulations. As the duty work against an employee’s FMLA 2007) (No. 07–539) (Department’s example in the current regulations leave entitlement or reinstatement rights regulation prevents employees from reveals, this provision was intended to could negatively impact pregnant independently settling past claims for apply only to the waiver of prospective women. The National Retail Federation FMLA violations with employers rights. In the interest of clarity, suggested that light duty not count without the approval of the Department however, the Department proposes to against FMLA leave, unless the or a court) with Faris v. Williams WPC– make explicit in paragraph (d) that individual’s medical restrictions I, Inc., 332 F.3d 316 (5th Cir. 2003) employees and employers should be required reduced hours, in which case (plain reading of the Department’s permitted to voluntarily agree to the any reduction in normal work hours regulation is that it prohibits settlement of past claims without having would count against the individual’s prospective waiver of rights only and to first obtain the permission or FMLA leave entitlement. not retroactive settlement of claims). approval of the Department or a court. Upon further review, the Department The Department does not believe this is believes that the current regulatory A majority of commenters to the RFI, a change in the law as it has never been language does not serve the Act’s including the Connecticut Department the Department’s practice, since the purpose to provide job protection when of Labor, the Ohio Department of enactment of the FMLA, to supervise FMLA leave is taken. Accordingly, the Administration, the National Coalition such voluntary settlements. Department proposes deleting the final to Protect Family Leave, the National sentence of current § 825.220(d), which Retail Federation, the Association of Section 825.300 (Employer Notice states that job restoration rights are Corporate Counsel, the United Parcel Requirements) available until 12 weeks have passed Service, American Electric Power, and The Act imposes notice obligations on within the 12-month period including the University of California, argued that both employers and employees. Current all FMLA leave taken and the period of § 825.220(d) should be amended to §§ 825.300 and 825.301 outline light duty. This change will ensure that explicitly allow waivers and releases in employers’ responsibilities to notify employees retain their right to connection with the settlement of FMLA employees of their FMLA rights. Several reinstatement for a full 12 weeks of claims, that is, claims for past additional notice requirements, such as leave instead of having the right violations. Commenters supporting this notifying employees of their FMLA diminished by the amount of time spent view stated that any interpretation eligibility and designation of their in a light duty position. The Department preventing the waiver or release of past FMLA leave, also appear elsewhere in also is not proposing to require claims unnecessarily encourages current §§ 825.110 and 825.208. employees to accept light duty work in litigation and interferes with the public Current § 825.300(a) addresses the lieu of taking FMLA leave. If an policy favoring private resolution of statutory posting requirement (see 29 employee is voluntarily performing a disputes, is neither practical nor U.S.C. 2619(a)). Under current light duty assignment and performing efficient (particularly in a reduction-in- § 825.300(b), an employer that willfully work, the employee is not on FMLA force), may discourage companies from violates the posting requirement may be leave and the employee should not be providing severance or separation assessed a civil money penalty not to deprived of future FMLA-qualifying packages, and is not required by the exceed $100 for each separate offense leave when performing such work. By statutory language, which contains no (see 29 U.S.C. 2619(b)). Where an deleting this language, the Department indication that Congress intended to employer’s workforce is comprised of a in no way intends to discourage prevent such waivers. Many of these significant portion of workers who are employees and employers from commenters, such as the Connecticut not literate in English, the employer is engaging in such light duty work Department of Labor, the Indiana responsible for providing notice in a arrangements. Rather, the Department Chamber of Commerce, the Detroit language in which the employees are simply wishes to make clear that when Medical Center, Clark Hill PLC, and the literate. See § 825.300(c). an employee is performing a light duty Human Resource Management Current § 825.301(b) requires the assignment, that employee’s rights to Association of Southeastern Wisconsin, employer to provide the employee with FMLA leave and to job restoration are suggested that the Department adopt written notice detailing the specific not affected by such light duty minimum standards for knowing and expectations and obligations of the assignment. The Department invites voluntary waivers, similar to those employee and explaining the comment on whether the deletion of provided for under the Age consequences of a failure to meet these this language may negatively impact an Discrimination in Employment Act of obligations. The written notice must be employee’s ability to return to his or her 1967, 29 U.S.C. 621, 626(f). Other RFI provided in a language in which the original position from a voluntary light commenters, such as the National employee is literate and must include, duty position. Employment Lawyers Association, as appropriate:

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(i) That the leave will be counted against relate to employee awareness of their Communications Workers of America the employee’s annual FMLA leave rights and responsibilities. reiterated that employees need to entitlement (see § 825.208); Increasing employee and employer receive guidelines that ‘‘explain their (ii) Any requirements for the employee to awareness of FMLA rights and annual leave entitlement and the furnish medical certification of a serious responsibilities continues to be a process for making application for health condition and the consequences of challenge based on comments submitted FMLA leave.’’ failing to do so (see § 825.305); to the RFI. International Auto (iii) The employee’s right to substitute paid Processing, Inc., suggested that Proposed Revisions leave and whether the employer will require employees may be unaware of their The Department believes that a key the substitution of paid leave, and the FMLA rights due to the timing of when component of making the FMLA a conditions related to any substitution; they receive information about FMLA: success is effective communication (iv) Any requirement for the employee to ‘‘If employees continue to be unaware of between employees and employers. To make any premium payments to maintain improve the process, the Department health benefits and the arrangements for their FMLA rights, it may be because making such payments (see § 825.210), and most employers will cover this at proposes to collect the notice the possible consequences of failure to make orientation. On the first day of the job, requirements into one comprehensive such payments on a timely basis (i.e., the new employees are nervous and are section that better captures the circumstances under which coverage may overwhelmed with paperwork and work appropriate communications that need lapse); rules. Since FMLA won’t affect them to occur between an employer and (v) Any requirement for the employee to until they have in the requisite 12 employee in the FMLA process. present a fitness-for-duty certificate to be months with the company, they may Specifically, the Department proposes to restored to employment (see § 825.310); shove that information to the back combine components of current (vi) The employee’s status as a ‘‘key burner.’’ §§ 825.300, 825.301, 825.208, and employee’’ and the potential consequence Some comments addressed the 825.110 into one comprehensive section that restoration may be denied following sufficiency of the information provided. addressing an employer’s notice FMLA leave, explaining the conditions The United Transportation Union stated obligations. required for such denial (see § 825.218); that the ‘‘posting requirements for Proposed § 825.300 is divided into (vii) The employee’s right to restoration to employers under FMLA do not go far separate paragraphs that address the the same or an equivalent job upon return enough in that they do not actively major topics of ‘‘(a): [g]eneral notice’’; from leave (see §§ 825.214 and 825.604); and educate employees on their rights under ‘‘(b): [e]ligibility notice’’; ‘‘(c): (viii) The employee’s potential liability for FMLA. In addition to posting FMLA [d]esignation notice’’; and ‘‘(d): payment of health insurance premiums paid basic facts as required by the regulation, [c]onsequences of failing to provide by the employer during the employee’s employers should be required to give notice’’. The ‘‘general notice’’ unpaid FMLA leave if the employee fails to requirement requires an employer to return to work after taking FMLA leave (see the information to employees, in § 825.213). writing, once they become eligible post a notice explaining the Act’s under the regulations with that provisions and complaint filing 29 CFR 825.301(b)(1). The specific employer. Contact phone numbers for procedures, and to provide this same notice may include other information— the employer as well as detailed appeals notice in employee handbooks or by e.g., whether the employer will require process afforded to the employee should distributing a copy annually. The periodic reports of the employee’s status be provided, as well as recourse ‘‘eligibility notice’’ provides notice to and intent to return to work, but is not information for possible retaliatory the employee that he or she is an required to do so (§ 825.301(b)(2)). The practices by the employer.’’ The eligible employee under FMLA (as notice must be given within a International Association of Machinists defined in § 825.110), has FMLA leave reasonable time after notice of the need and Aerospace Workers recommended available, and has certain rights and for leave is given by the employee- that ‘‘employees should be expressly responsibilities. Within five business within one or two business days if notified of their right to take days of having obtained sufficient feasible (§ 825.301(c)). The written intermittent leave. * * * This has information to determine whether the notification to the employee that the proven a real problem for some of our requested leave is being taken for a leave has been designated as FMLA members. * * * An employee who qualifying reason, the employer must leave may be in any form, including a suffers from a condition that is still provide the employee with a notice notation on the employee’s pay stub being diagnosed, but doctors believe it regarding designation of FMLA leave— (§ 825.208(b)(2)). is either lupus, a connective tissue referred to as the ‘‘designation notice.’’ The Department noted in its RFI that disorder or rheumatoid arthritis, arrived The designation notice informs the one consistent concern expressed by the late to work due to her condition on a employee whether the particular leave employee representatives during number of occasions [and] was requested will be designated as FMLA stakeholder meetings was that completely unaware that she could take leave. employees need to be better aware of FMLA on an intermittent basis. She While the current regulations contain their rights under the FMLA. The RFI thought if she took any FMLA leave, she the ‘‘provisional designation’’ concept, solicited public input on the would have to stop working altogether, the Department believes that this effectiveness of these various regulatory something her illness did not process may cause confusion over notice provisions in promoting necessitate and something she could not whether leave is protected prior to the communications between employees afford to do.’’ actual designation. In some cases, the and employers and on what more could The AFL–CIO urged the Department leave may not eventually qualify for the be done to improve the general state of to consider ‘‘requiring employers to Act’s protections. Thus, the awareness of FMLA rights and provide an individualized notice Department’s proposal restructures the responsibilities by both employees and provision to employees on an annual regulations to recognize that employers employers. The Department sought basis,’’ and referred to another may not be able to designate leave as information in response to several commenter who suggested requiring FMLA covered until the employee questions concerning the notice notice to employees at the point of provides additional information. The provisions and how those provisions hiring and annually thereafter. The Department specifically invites

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comment on whether this proposal will assessed a civil money penalty (CMP) notice to individual employees even if effectively communicate the required not to exceed $100 for each separate no employees are eligible for FMLA information to employees about their offense. This CMP amount was set by leave. For example, an employer may FMLA rights while relieving some of the the Congress as part of the original employ 60 employees located in all 50 administrative burdens for employers FMLA of 1993. The regulations, at states, and no employee meets the under the current process. § 825.300(b), currently provide for eligibility requirement of working at a assessment of a $100 penalty for willful site to which 50 or more employees General Notice Requirements violations of the posting requirement. report within 75 miles. See 29 U.S.C. Proposed § 825.300(a) is a ‘‘general The Department proposes to increase 2611(2)(B)(ii) and 29 CFR 825.110. In notice requirement’’ that merges the the civil money penalty for violation of such a case, an employer still would poster/notice requirement contained in this posting to $110.00 to meet have to comply with the posting current § 825.300 with the written requirements of the Debt Collection requirement. This is a statutory posting guidance required in current Improvement Act of 1996 (Pub. L. 104– requirement, see 29 U.S.C. 2611(4) and § 825.301(a). Proposed § 825.300(a)(1) 134, Title III, § 31001(s)(1), Apr. 26, 2619(a), although some confusion exists maintains the statutory requirement that 1996, 110 Stat. 1321–373). The Debt on this point since it is not obvious that every covered employer post and keep Collection Improvement Act amended such a notice is required when an posted in conspicuous places on its the Federal Civil Penalties Inflation employer does not have any eligible premises a notice providing information Adjustment Act of 1990 (Public Law employees. The Department aims to about the FMLA. Given the growth of 101–410, Oct. 5, 1990, 104 Stat. 890) to minimize such confusion by the Internet since the Department issued require that Federal agencies issue highlighting this requirement in a the 1995 regulations, however, as well regulations to adjust certain CMPs for separate section. as the practical realities that more and inflation. As amended, the law requires Proposed § 825.300(a)(3) states that more employees do not physically each agency to initially adjust for covered employers with eligible report to a central location, the inflation all covered CMPs, and to employees also must distribute the Department proposes that this posting periodically make further inflationary general notice described in proposed requirement may be satisfied through an adjustments thereafter. The adjustment § 825.300(a) either by including it in an electronic posting of the notice as long prescribed in the amended Act is based employee handbook or by distributing a as it otherwise meets the requirements on a cost-of-living formula according to copy to each employee at least once a of this section. To provide sufficient the percentage determined by the year, either in paper or electronic form. notice required by the statute (see 29 Department of Labor’s Consumer Price This provision incorporates the existing U.S.C. 2619), the employer must make Index (CPI). The statute provides for notice distribution requirement found in sure that the information is accessible to rounding the penalty increases. Once current § 825.301(a)(1), which requires applicants as well as employees, so the percentage change in the CPI is an employer to place in an employee simply posting such information on an calculated, the amount of the handbook, if one exists, a notice of intranet that is not accessible to adjustment is rounded according to a FMLA rights and responsibilities and applicants will not meet the table in the Federal Civil Penalties the employer’s policies on the FMLA. requirements. Electronic posting could Inflation Adjustment Act, which is Current § 825.301(a)(2) states that if an be accomplished, for example, by scaled based on the dollar amount of the employer does not have a handbook, posting the notice in a conspicuous current penalty. For penalties less than when an employee gives specific notice manner on the employer’s Internet web- or equal to $100, the increase is rounded of the need for leave, the employer must page inviting applicants to apply if the to the nearest multiple of $10. The provide written guidance to an employer accepts applications only statute applies a cap, for the initial employee concerning all the employee’s through the Internet. If the employer adjustment only, which limits the rights and obligations under the FMLA, also accepts applications on-site, amount of the first penalty increase to and the DOL Fact Sheet can meet this however, the notice would have to be 10 percent of the current penalty requirement. The information found in physically posted for applicants to view amount. Any increase under the Act the DOL Fact Sheet mirrors, in part, on-site unless the employer had a applies prospectively to violations that information contained in the poster. computer kiosk available for applicants occur after the date the increase takes To streamline the notice requirement to view the poster on-line. Similarly, in effect in amendments to the regulations. currently found in § 825.301(a)(1) and order for electronic-only posting to The amount by which the current the posting requirement, the Department provide sufficient notice to employees, CPI–U exceeds the CPI–U for June of proposes that one document containing all employees must have access to 1993 is more than the statutory cap of identical information be both posted company computers that post the 10 percent. Consequently, due to and distributed, thereby satisfying the information in a conspicuous manner. inflation since this CMP amount was posting and distribution requirement. For example, the company may make first established in 1993, the adjustment The Department intends that this computer kiosks available for use in permitted by law is limited to the proposed change will more effectively employee lunch rooms. The Department maximum 10 percent initial cap. It is convey consistent, relevant information specifically seeks comment on whether proposed, therefore, to amend to employees. Moreover, the this ‘‘posting’’ alternative is considered § 825.300(a) to provide for assessment of Department’s proposed prototype notice workable and will ensure that a penalty of $110 for willful violations is revised to provide employees more employees and applicants obtain the of the posting requirement. useful information on their FMLA rights required FMLA information. and responsibilities. Clarification of Covered Employer To further address the concern that Poster Civil Money Penalty Responsibilities employees are unaware of their rights as Section 109(b) of the FMLA (29 U.S.C. For purposes of clarity, the explained above, the Department 2619(b)) provides that any employer Department proposes to separate out proposes that if the proposed notice is who willfully violates the Act’s into a new paragraph the language from not contained in an employee requirement to post the FMLA notice as existing § 825.300(a) that requires a handbook, it must be distributed required by section 109(a) may be covered employer to post the general annually, regardless of specific

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employee requests for leave. This new worked for 1,250 hours of service in the and responsibilities, such as any frequency requirement exceeds that of preceding 12 months) is not triggered requirement to provide sufficient the current regulations, but the until the employee has provided the medical certification, pay premiums for Department is responding to the employer with at least verbal notice continuing benefits, and job restoration concern that employees may not be sufficient to indicate that the employee rights upon expiration of FMLA leave. aware of their FMLA rights in many needs FMLA-qualifying leave. See The Department proposes to add cases, and the Department believes that §§ 825.302 and 825.303. The proposed language to clarify in § 825.300(b)(3)(iii) this requirement will promote increased regulations require that the eligibility when an employer notifies an eligible awareness. In addition, the notice be conveyed within five business employee of the right to substitute communication will be more effective if days after the employee either requests employer-provided paid leave and the the notice is provided routinely and leave or the employer acquires conditions related to any such annually rather than only when an knowledge that the employee’s leave substitution that the employer also employee is facing a significant family may be for an FMLA-qualifying reason. inform the employee that he/she may event like the birth or adoption of a While this proposal is a change from the take unpaid FMLA leave if the child or a serious medical emergency current timeframe of two business days, employee does not comply with the affecting the employee or a family the Department is responding to terms and conditions of the employer’s member. significant comments noting that the paid leave policies (see discussion The Department’s proposal does not two-day turnaround time is in practice supra at § 825.207). The Department require that a covered employer with no very difficult to meet, and the also proposes to add language to eligible employees distribute the general Department does not believe that § 825.300(b)(3)(v) indicating that notice, although the employer would extending this time frame to five employers should include a statement of have to comply with this requirement business days will compromise an the employee’s essential job functions even if it only has one eligible employee’s FMLA rights. The with the eligibility notice if they will employee. The Department specifically Department specifically seeks comment require that those functions be seeks comments on all aspects of these on whether this timeframe will both addressed in a fitness-for-duty proposed notice provisions. impart sufficient information to certification. The remainder of proposed Prototype General Notice employees in a timely manner and whether it is workable for employers. § 825.300(b) relies upon existing Proposed § 825.300(a)(4) explains that Proposed paragraph (b)(2) of this language in current § 825.301 with the Department has included a section specifies what information an limited modifications. Specifically, prototype notice in Appendix C for employer must convey when proposed § 825.300(b)(4) adopts employers to use and that copies will be communicating with the employee as to language from current § 825.301(b)(2), available from Wage and Hour offices eligibility status. While not required which provides that the eligibility and from the Department’s Internet under the current regulations, the notice may include other information on website. Consistent with current proposal requires the employer to notify an employee’s rights and §§ 825.300(c) and 825.301(b)(1), the employee whether leave is still responsibilities such as providing proposed § 825.300(a)(4) requires that available in the applicable 12-month periodic reports of the employee’s status an employer provide the poster and period. If the employee is not eligible or and intent to return to work. Consistent general notice to employees in a has no FMLA leave available, then, with language from current § 825.301(c), language in which they are literate pursuant to proposed paragraph (b)(2), proposed § 825.300(b)(6) states that the when the employer employs a the notice must indicate the reasons eligibility notice need not be provided significant portion of employees who why the employee is not eligible or that more frequently than once every six are not literate in English. The the employee has no FMLA leave months unless the specific information Department intends to make such available. For example, an employer in the notice changes. If leave has notices available in alternative might need to indicate that an employee already begun, the notice should be languages in accordance with the has not worked long enough to meet the mailed to the employee’s address of requirements of this section on the 12-month eligibility requirement. record. Proposed § 825.300(b)(7) states Internet and through local Wage and The Department proposes these new that if information changes, the Hour district offices. This section also notification requirements to address the employer should provide notice to the includes language from current concern that employees are not aware of employee of any information that has § 825.301(e) requiring notice to sensory- their rights. The Department believes changed within five business days, a impaired individuals as required under that a better understanding on the part change from the current two-day applicable Federal and State law. of both employees and employers as to requirement. The proposal also contains their respective FMLA rights and new language stating that the employer Eligibility Notice obligations will better ensure that should include the medical certification Proposed § 825.300(b) consolidates employees who qualify for FMLA leave form, if the employer requires such the notice provisions contained in obtain such leave. In proposing these information, along with the eligibility existing §§ 825.110(d) and 825.301(b) new notice requirements, the notice. into a paragraph entitled ‘‘eligibility Department believes that the additional Consistent with the current notice.’’ Consistent with current burden will be minimal, since the regulations, proposed § 825.300(b)(8) § 825.110, the employer continues to be employer is already required to provides that if an employer requires responsible under proposed paragraph calculate such information in any case medical certification or a fitness-for- (b)(1) of this section for communicating to determine eligibility in order to meet duty report, written notice of the eligibility status. As under the current the requirements of the statute. requirement shall be given with respect regulations, the employer’s obligation to If the employee is eligible for FMLA to each employee notice of a need for notify the employee of his or her leave, then proposed paragraph (b)(3) leave, unless the employer eligibility to take FMLA leave (i.e., also requires, consistent with current communicates in writing to employees whether the employee has been § 825.301(b), that the employer inform that such information will always be employed for 12 months and has the employee of the employee’s rights required in connection with certain

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absences and then oral notice must still LLP (fifteen days from receipt of a aware when such leave is designated as be given. certification form); National Coalition to FMLA leave in a timely fashion. Proposed paragraph (b)(9) is Protect Family Leave (ten business Further, the proposed section contains a unchanged from current § 825.301(d) days); Association of Corporate Counsel new requirement that an employer and provides that employers will (five working days); Courier Corporation notify the employee if the leave is not responsively answer employees’ (five days); United States Postal Service designated as FMLA leave due to questions on their rights and (same); Northrop Grumman Newport insufficient information or a non- responsibilities under FMLA. News Shipbuilding and Dry Dock qualifying reason. Proposed paragraph (b)(10) provides Company (same). As noted above, the Department that an optional prototype eligibility International Auto Processing, Inc., proposes to change the timeframe in notice is included in Appendix D. This stated that while some decisions can be which an employer must designate proposed prototype reflects changes in made in two days, even a week might leave as FMLA leave from two business the proposed regulation. The not be sufficient in other cases, days to five business days. As discussed Department also has attempted to depending upon the amount of above with respect to the change in simplify the form for easier use and information supplied by an employee timeframe for providing the eligibility adaptability. and whether clarification is needed notice, the Department believes this will Designation Notice from the health care provider. Hinshaw result in more accurate notice given to & Culbertson LLP commented similarly employees. Moreover, this change is Proposed § 825.300(c) outlines the that the two-day time frame for proposed in concert with new notice proposed requirements of the providing notification to employees that requirements that would require designation notice an employer must FMLA leave has been approved or employers to provide employees with provide to an employee, currently denied is inadequate, ‘‘as there are more substantive information than that located in § 825.208(b). This proposed many factors which result in delays in required under the current regulations. designation notice requires that an both obtaining information and The Department does not believe that employer notify the employee within processing requests.’’ these new information requirements five business days (a change from the In light of the comments received, the should be burdensome for employers current requirement of two business proposed rule requires the employer to since the employer will already need to days) that leave is designated as FMLA provide the employee notice of the determine in any event whether or not leave once the employer has sufficient designation of FMLA leave within five the leave should be designated and information to make such a business days of receiving sufficient counted against the employee’s 12-week determination. information from the employee to FMLA leave entitlement. The proposed The RFI sought comments on whether designate the leave as FMLA leave. The requirement merely requires the the current two business day time frame proposed designation notice also employer to expressly communicate this was adequate for employers to notify contains an additional provision that information to the employee. The employees that their request for FMLA expressly requires the employer to Department specifically seeks comment leave has been approved or denied. The inform the employee of the number of on whether these proposed revisions majority of comments on this topic hours, days or weeks, if possible, that both adequately protect employee rights indicated that the current two-day time will be designated as FMLA leave. and are workable for employers. Neither frame was too restrictive. United Parcel Although current § 825.208(b)(1) the proposed nor current regulations Service commented, ‘‘In most cases, the requires employers to inform employees mandate a specific format for the initial notification of an absence or need that leave ‘‘is designated and will be written notice. The proposed paragraph for leave is received by front-line counted as FMLA leave,’’ it does not (c)(2), consistent with current management, who conveys the specifically require employers to § 825.208(b)(2), indicates that this information up the chain of command provide employees with information information may be communicated on a and to the local HR representative, who detailing the amount of leave so pay stub. notifies the FMLA administrator, who is designated. When an employee requests Proposed § 825.300(c)(3) improves the ultimately responsible for making a a block of foreseeable leave and notices employers must provide to determination. It is not unusual for it to provides appropriate notice to the employees. It explicitly permits an take one to two business days just for employer, it should be relatively employer to provide an employee with the right personnel to receive the straightforward for the employer to both the eligibility and designation information, much less make a provide the employee with the amount notice at the same time in cases where determination and communicate it back of leave that will be designated as the employer has adequate information to the employee.’’ Courier Corporation FMLA. However, to the extent that to designate leave as FMLA leave when noted similarly, ‘‘The two-day future leave will be needed by the an employee requests the leave. This is timeframe is way too short for notifying employee for a condition but the exact an acknowledgement that in some cases employees about their leave request, amount of leave is unknown (as is often there will be no question that a leave since as employers we are often chasing the case with unforeseeable intermittent request qualifies as FMLA leave and the information from the employee or leave for a chronic serious health proposal encourages an employer to physician.’’ Spencer Fane Britt & condition), the employer must inform designate the leave as soon as possible. Browne LLP agreed: ‘‘For most the employee every 30 days that leave Section 825.300(c)(4) states that a employers, this is virtually impossible. has been designated and protected prototype designation notice is Although most employers designate under the FMLA and advise the contained in Appendix E. This form is leave within a reasonable time frame, it employee as to the amount so a new optional ‘‘designation notice’’ is usually well outside the two-day time designated if the employee took leave that an employer can use to satisfy its frame, thus creating a risk that the during the 30-day period. Currently, the obligation to notify an employee that designation will be ineffective.’’ regulations do not specifically address leave is being designated as FMLA leave Employers suggested varying designation of unforeseen, intermittent because it is being taken for a qualifying timeframes to replace the two-day limit. leave, and the Department believes that reason, as required by proposed See, e.g., comments by Fisher & Phillips it is important for employees to be § 825.300(c)(1).

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Remedy Provision information that leave is taken for an mirrors changes made to §§ 825.302 and Proposed paragraph (d) has been FMLA-qualifying reason, the employer 825.303. The proposed paragraph cross- added in light of Ragsdale, and expands must designate the leave as FMLA leave. references §§ 825.302 and 825.303 that on current § 825.301(f). Consistent with Paragraph (b)(2) explains that the address what constitutes sufficient the Department’s discussion of designation may be oral or in writing information an employee must proposed § 825.301, the Department and must be confirmed in writing no communicate to an employer when believes that the U.S. Supreme Court’s later than the following payday. Current needing FMLA leave, as further Ragsdale decision requires a remedy paragraph (c) of that section provides explained below. Proposed § 825.301(b) provision for a notice violation that is that paid leave must be designated as also incorporates the substance of the tailored to individualized harm. FMLA-covered leave within two provision in current § 825.208(a)(2) that business days of when the employee an employee need not invoke the FMLA Therefore, as noted in the discussion of gives notice of leave, or when the when asserting rights under the Act. As §§ 825.110, 825.301, and 825.220, the employer has sufficient information to a matter of clarification, the word Department has added a provision make such a determination if not ‘‘unpaid’’ is deleted, as these employee explaining that failure to comply with available until later. It also requires the responsibilities apply whether the leave the notice requirements set forth in this employer to advise the employee if is paid or unpaid. The proposed section section could result in the interference substitution of paid leave will be also explains that the consequences for with, restraint of, or denial of the use of required. The section also explains that an employee’s failure to satisfy these FMLA leave. If the employee is able to if the employer knows that paid leave is responsibilities may include delay as demonstrate harm as a result of the for an FMLA reason when the employee well as denial of FMLA leave. employer’s failure to provide notice of advises of the need for leave or when The substance of current § 825.208(b) eligibility or designation of FMLA leave the leave commences and does not at has been moved to proposed as required, an employer may be liable that time designate (and notify the § 825.300(c) that addresses the other for the harm suffered as a result of the employee) that the leave is being notice obligations of employers. As violation, such as lost compensation charged to the employee’s FMLA leave noted above, current § 825.208(c) and benefits, other monetary losses, and entitlement, the leave may not be explains an employer’s designation appropriate equitable or other relief, designated as FMLA leave retroactively obligations with regard to paid leave including employment, reinstatement, and may only be designated as FMLA and the consequences that apply when or promotion. leave prospectively. In such case, none an employer fails to properly and timely Section 825.301 (Employer Designation of the absence preceding the notice to designate leave. In light of Ragsdale, the of FMLA Leave) the employee of the designation may be Department cannot prohibit the counted against the employee’s 12-week retroactive designation of FMLA leave The Department proposes to delete FMLA leave entitlement, but ‘‘the absent a showing of individual harm. By current § 825.301, which addresses employee is subject to the full the same token, the Department believes employer notices to employees, because protections of the Act’’ during that that it is important that employers its requirements have been incorporated period of absence. timely designate FMLA leave so that into proposed § 825.300 as discussed Current paragraph (d) of that section both employees and employers are above. Current § 825.208 addressing explains the rules for designating leave aware as to what employee rights attach designation of FMLA leave has been after leave has begun. Current paragraph when a specific FMLA leave period is moved to proposed § 825.301. Current (e) explains that leave may not be at issue. Indeed, in the preamble § 825.208 explains under what retroactively designated except in accompanying the current regulations, circumstances an employer can limited circumstances such as when a the Department explained that this designate leave as FMLA leave. non-FMLA leave turns into an FMLA- section was intended to resolve the Paragraph (a) of that section explains qualifying leave or when an employee question of FMLA designation as early that it is the employer’s obligation to has taken leave for a short duration and as possible in the leave request process, designate leave as FMLA leave. only notifies the employer when the to eliminate protracted ‘‘after the fact’’ Paragraph (a)(1) of that section explains employee returns from leave. disputes. (60 FR at 2207) The that the employee has an obligation to The proposed revisions maintain the Department has received comments, provide the employer with enough basic requirement from current however, that in certain cases, the information to determine if the leave is § 825.208 that employers designate prohibition on retroactive designation potentially FMLA-qualifying. Paragraph qualifying leave as FMLA promptly and actually may harm the employee. (a)(2) explains that the employee need notify employees of that designation. The Department has reevaluated the not specifically request FMLA leave, See the Department’s 2007 Report on original rationale for this rule and still although if an employee requests paid the RFI comments, Chapter V, Section D believes it is beneficial to both leave for an FMLA reason and the (72 FR at 35585). The revisions, employees and employers to know in employer denies the request, the however, account for the Supreme advance, or at least as soon as possible, employee must provide the employer Court’s ruling in Ragsdale prohibiting when leave is considered FMLA- with sufficient information to make the categorical penalties based on an protected leave. Therefore, the determination that the leave is for an employer’s failure to appropriately Department proposes to make clear that FMLA-qualifying reason. Paragraph (a) designate FMLA leave. an employer has an obligation to timely also explains that if the employer does The Department also proposes a new designate leave (within five business not have sufficient information to paragraph (b) in this section that days, absent extenuating circumstances) designate paid leave as FMLA-covered, specifically addresses employee as proposed in § 825.301(a). However, in the employer has an obligation to responsibilities. The substance of the light of Ragsdale and the comments the inquire further in order to ascertain language contained in current paragraph Department has received, proposed whether the paid leave is potentially (a) of § 825.208 that addresses such paragraph (d) of this section covered by the FMLA. Current responsibilities has been retained and acknowledges that retroactive paragraph (b)(1) of that section states moved to this new section, but the designation may occur, but that if an that once an employer has enough proposal simplifies the language and employer fails to timely designate leave

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as specified in § 825.300 and paragraph retroactively designated under the was not practicable to give 30 days’ (a) of this section, and if an employee current regulations have been deleted. notice. establishes that he or she has suffered Section 825.302 (Employee Notice The Department proposes to delete harm as a result of the employer’s Requirements for Foreseeable FMLA the second sentence of current actions, a remedy may be available. The Leave) paragraph (b) of this section, which Department provides examples in defines ‘‘as soon as practicable’’ as Current § 825.302(a) explains what paragraph (e) to illustrate the type of ‘‘ordinarily * * * within one or two circumstance where an employee may notice an employee must give an employer when the need for FMLA business days of when the need for or may not be able to show that harm leave becomes known to the employee.’’ has occurred as a result of the leave is foreseeable. The requirement, as set forth in the statute, 29 U.S.C. While the ‘‘one to two business days’’’ employer’s actions. In many cases timeframe was intended as an where an employee’s own serious health 2612(e), is that an employee must give at least 30 days’ notice if the need for illustrative outer limit, Wage and Hour condition is involved, the Department Opinion Letter FMLA–101 (Jan. 15, believes it will be difficult to show harm FMLA leave is foreseeable. If 30 days’ notice is not possible, the employee 1999), in effect, mistakenly read the as a result of the employer’s failure to regulation as allowing employees two timely designate FMLA leave, as the must give notice ‘‘as soon as practicable.’’ The current regulations business days from learning of their employee will frequently be unable to need for leave to provide notice to their delay or forgo the leave. Cf. Downey v. define ‘‘as soon as practicable’’ in § 825.302(b) to mean ‘‘as soon as both employers, regardless of whether it Strain,—F.3d—, 2007 WL 4328487 (5th would have been practicable to provide Cir. 2007) (finding employee was possible and practical, taking into account all of the facts and notice more quickly. In that letter, the harmed by employer’s failure to Department found that an absence designate leave as FMLA leave). On the circumstances in the individual case.’’ It further states that ‘‘ordinarily’’ as soon policy that required employees to report other hand, if an employee knows he or their absences within one hour after the she would need the FMLA leave later in as practicable would mean ‘‘at least verbal notification to the employer start of their shift, unless they were the year for planned medical treatment, unable to do so due to circumstances he or she may choose to have another within one or two business days of when the need for leave becomes known beyond their control, was contrary to family member provide care for a child the FMLA’s notice procedures. The with a serious health condition instead to the employee.’’ Current paragraph (c) explains the form and content of notice Department provided the following of taking leave at a certain point if the an employee must provide when taking example of the employee’s notice employee knew that the time off would leave and the obligations of employers obligation: count against the employee’s FMLA to obtain follow-up information when entitlement. In addition, this proposal For example, an employee receives notice needed. Current paragraph (d) explains can benefit employees who did not on Monday that his/her therapy session for that an employer can require an a seriously injured back, which normally is fulfill their FMLA notice obligations at employee to comply with its usual and scheduled for Fridays, must be rescheduled the time of taking leave, by allowing customary notice procedures, but that for Thursday. If the employee failed to employers to retroactively designate an employer cannot disallow or delay provide the employer notice of this leave to prevent disciplinary action. leave if such procedures are not scheduling change by close of business The last sentence in proposed followed if timely notice is given. Wednesday (as would be required under paragraph (d) states that in all cases FMLA’s two-day notification rule), the Current paragraph (e) explains that an employer could take an adverse action where a leave is FMLA-qualifying, an employee has a duty to plan medical employer and an employee can against the employee for failure to provide treatment so as to not unduly disrupt an timely notice under the company’s mutually agree that leave be employer’s operations; current attendance policy. retroactively designated as FMLA leave. paragraph (f) explains an employee’s Proposed paragraph (e), titled notification obligations with regard to Comments received in response to the ‘‘[r]emedies,’’ mirrors the statutory intermittent leave; and current RFI indicated that the ‘‘two-day rule’’ scheme and provides that failure to paragraph (g) explains that while an has created significant problems for timely designate could constitute an employer can waive an employee’s employers in maintaining appropriate interference with, restraint of, or denial FMLA notice requirements, an employer staffing levels. See, e.g., Southwest of, the exercise of an employee’s FMLA cannot require an employee to comply Airlines Co. (‘‘[T]he DOL’s informal rights. Specifically, if the employee is with stricter FMLA requirements if a two-day notice practice is an arbitrary able to establish prejudice as a result of collective bargaining agreement, State standard that fails to recognize an the employer’s failure to designate leave law, or the employer’s leave policies employer’s legitimate operational need properly, an employer may be liable for allow less notice. for timely notice and that contradicts compensation and benefits lost by with an employee’s statutory duty to reason of the violation, for other Timing of Notice provide such notice as is practicable.’’); monetary losses sustained as a direct Proposed § 825.302(a) retains both the National Coalition to Protect Family result of the violation, and for current requirement that an employee Leave (‘‘The phrase ‘as much notice as appropriate equitable relief, including must give at least 30 days’ notice when is practicable’ is not well-defined. The employment, reinstatement, promotion, the need for FMLA leave is foreseeable current phrase puts employers in the or any other relief tailored to the harm at least 30 days in advance, and the difficult position of having to approve suffered. This language mirrors the requirement that notice be provided ‘‘as leaves where questionable notice has statutory remedies set forth in 29 U.S.C. soon as practicable’’ if leave is been given. The current regulatory 2617, as well as language in the foreseeable but 30 days’ notice is not definition—within one or two business Ragsdale decision. practicable. The Department further days—has been applied by the In light of proposed paragraphs (d) proposes to add that when an employee Department to both foreseeable and and (e) discussed above, current gives less than 30 days’ advance notice, unforeseeable leaves, and to protect paragraphs (d) and (e) of § 825.208 the employee must respond to a request employees who provide notice within discussing when leave can be from the employer and explain why it two days, even if notice could have been

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provided sooner under the particular have to specifically mention the FMLA. the FMLA to put the employer on notice facts and circumstances.’’). See, e.g., Edison Electric Institute, Miles of the need for FMLA leave, but at the The Department is aware that timely & Stockbridge, P.C., Pierce County, same time employees must provide notice of an employee’s need for FMLA Washington, Spencer Fane Britt & sufficient information to make an leave is critical to the balance struck in Browne LLP, and DST Systems, Inc. The employer aware that FMLA rights may the Act between the employee’s ability South Central Human Resource be at issue. The Department proposes to ‘‘to take reasonable leave for medical Management Association suggested: clarify that sufficient information must reasons, for the birth or adoption of a It would eliminate many disputes if an indicate that the employee is unable to child, and for the care of a child, employee were required to request leave in perform the functions of the job (or that spouse, or parent who has a serious writing or to follow up an oral request with a covered family member is unable to health condition’’ and ‘‘the legitimate a written request within a reasonable time participate in regular daily activities), interests of employers.’’ 29 U.S.C. (such as within two work days after returning the anticipated duration of the absence, 2601(b). Absent emergency situations, to work in the case of intermittent leave, or and whether the employee (or family five work days after requesting leave in the where an employee becomes aware of a member) intends to visit a health care need for FMLA leave less than 30 days event of unforeseen continuous leave). * * * It would help both parties immensely if the provider or is receiving continuing in advance, the Department expects that employee were required to mention the treatment. it will be practicable for the employee FMLA when making such a request. The Department believes that this to provide notice of the need for leave Other stakeholders expressed a desire proposal will provide employers with either the same day (if the employee the information necessary to determine becomes aware of the need for leave for more information from employees, but stopped short of suggesting a whether absences may be covered by the during work hours) or the next business FMLA, without being overly day (if the employee becomes aware of requirement that the employee must specifically ask for FMLA leave. The prescriptive in the wording that an the need for leave after work hours). employee must use to request leave. The Accordingly, the Department proposes Williams Mullen law firm suggested that the Department should implement proposal will also facilitate the early to add examples to proposed paragraph identification of potentially FMLA- (b) clarifying the employee’s obligation detailed regulations that provide necessary language or actions that must protected absences. Finally, the to provide notice ‘‘as soon as increased specificity in the proposed practicable.’’ be taken by employees to put their employers on notice of their intent to rule will protect employees from losing Content of Notice take FMLA leave. The U.S. Chamber of FMLA rights by inadvertently failing to Many commenters responding to the Commerce suggested that employees put the employer on notice of the need RFI identified issues relating to the should be required to specify the for FMLA leave. The Department also sufficiency of the information provided purpose of any instance of FMLA leave, proposes to include such information in by employees when notifying their such as a doctor’s appointment, the general notice that employers are employers of the need for FMLA leave, physical treatment, etc., so that required to post and either to provide in which is addressed in current employers can assess veracity when an employee handbook or distribute at § 825.302(c). For example, the National employees appear to be abusing the least annually, as specified in proposed Coalition To Protect Family Leave stated leave policy. The Association of § 825.300(a), to ensure that employees that ‘‘employees who call in because of Corporate Counsel proposed that the are aware of the information they must their own or a family member’s medical DOL should revise the regulations to provide. condition do not necessarily provide make clear that an employee’s notice to This proposed section continues to sufficient information for an employer the employer must go beyond merely require employers to inquire further if to [determine whether the leave requesting leave and must provide a they need additional information in qualifies for FMLA protection]. Since basis for the employer to conclude that order to obtain the necessary details what constitutes ‘sufficient’ information the requested leave is covered by the about the leave. The proposed rule also is not clearly defined anywhere in the FMLA. states that employees must respond to regulations, both employees and One reason employees may provide employers’ inquiries designed to employers face difficulties in meeting less notice than employers want may be determine whether leave is FMLA- their rights and responsibilities under employees’ lack of awareness of their qualifying or risk losing FMLA the FMLA.’’ Jackson Lewis LLP rights and obligations. As noted above, protection if the employer is unable to similarly noted that employers numerous commenters to the RFI determine whether the leave qualifies. sometimes have difficulty in identifying emphasized that employees remain The Department seeks comment as to FMLA-qualifying absences: ‘‘Employers unaware of their rights under the FMLA. whether a different notice standard are not ‘mind readers’ and they often See comments by National Partnership requiring employees to expressly assert refrain from asking employees why they for Women & Families, Madison Gas their FMLA rights should apply in are absent for fear that they may invade and Electric Company, Legal Aid situations in which an employee has an employee’s medical privacy. It is also Society-Employer Law Center. As the previously provided sufficient notice of na¨ive to think that employers can AARP commented, even employees who a serious health condition necessitating effectively train front line supervisors have some general awareness of the law leave and is subsequently providing on the myriad of health conditions and do not know the details of the law or notice of dates of leave due to the personal family emergencies that might whether it applies to them. These condition that were either previously qualify for FMLA protection.’’ commenters also noted that employers unknown or changed. For example, A number of commenters offered fail to provide employees with effective where an employee has taken two weeks suggestions for how the Department information about their rights. of FMLA leave for surgery and recovery, could clarify what information In light of these comments, the and then learns that he or she will need constitutes sufficient notice. Some Department proposes to retain in to undergo physical therapy once a commenters suggested that an § 825.302(c) the standard that an week for four to six weeks upon employee’s leave request should have to employee need not assert his or her returning to work, should the employee be in writing, or that the request should rights under the FMLA or even mention be required to specifically notify the

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employer that the additional leave is at 2221. Cases addressing various types failing to provide timely notice, and not due to the FMLA-covered condition? of employee call-in procedures, a change in current law. For example, if including employer requirements that an employee could have provided two Usual and Customary Employer employees report absences to specific weeks notice of a doctor’s appointment Procedures individuals or offices and that they keep for treatment of a serious health A number of commenters responding employers updated regarding their need condition, but instead provides only one to the RFI also addressed the provisions for leave, have analyzed the issue week’s notice of the appointment, the in § 825.302(d) regarding compliance differently. Compare, e.g., Bones v. employer may delay FMLA-protected with employers’ usual and customary Honeywell Int’l Inc., 366 F.3d 869, 878 leave for one week (i.e., if the employee notice procedures for requesting leave. (10th Cir. 2004) (‘‘[Employee’s] request could have provided notice on the 7th Many employers specifically asserted for an FMLA leave does not shelter her day of the month of an appointment on that call-in procedures, which are from the obligation, which is the same the 21st day, but instead only provides enforced routinely outside the FMLA as that of any other Honeywell notice on the 14th day, the employer context, can serve as a crucial element employee, to comply with Honeywell’s may delay FMLA leave until the 28th of an attendance program and are often employment policies, including its day (two weeks after the notice was critical to an employer’s ability to absence policy.’’); Cavin v. Honda of provided)). If the employee does not ensure appropriate staffing levels. In America Mfg., Inc., 346 F.3d 713, 723 delay the taking of the leave, the discussing the effect call-in (6th Cir. 2003) (‘‘[E]mployers cannot absence will be unprotected and the requirements have on State agencies in deny FMLA relief for failure to comply employer can treat the absence in the particular, the Ohio Department of with their internal notice requirements same manner as any unexcused absence Administrative Services commented [to call a specified department].’’); Lewis (i.e., if the employee in the example that such procedures are especially v. Holsum of Fort Wayne, Inc., 278 F.3d above is absent on the 21st day, instead critical in institutional agencies that 706, 710 (7th Cir. 2002) (failure to of delaying the absence until the notice provide direct care and supervision of follow three-day no-call rule legitimate period is met, the employer may treat inmates or patients. A number of basis for termination and did not violate the absence as an unexcused absence commenters urged reforming the FMLA); Gilliam v. UPS, 233 F.3d 969 under its normal leave policies). regulations to allow employers to (7th Cir. 2000) (upholding application of Alternatively, the employer would have enforce attendance policies that require three-day no-call rule). the option of accepting the employee’s employees to observe reasonable call-in Accordingly, the Department late notice and counting the leave procedures, including policies that proposes that, absent unusual against the employee’s FMLA require employees to call in to their circumstances, employees may be entitlement. See § 825.302(g). direct supervisors or to a designated required to follow established call-in Proposed § 825.302(g) retains person in human resources, and to procedures (except one that imposes a language stating that employers may allow a penalty for noncompliance. See, more stringent timing requirement than waive employees’ FMLA notice e.g., comments by American Electric the regulations provide), and failure to requirements. The Department proposes Power, Ohio Public Employer Relations properly notify employers of absences to delete language, however, stating that Association, and National Association may cause a delay or denial of FMLA employers cannot enforce FMLA notice of Convenience Stores. The University protections (as explained in § 825.304). requirements if those requirements are of Wisconsin-Milwaukee stated that Unusual circumstances would include stricter than the terms of a collective requiring employees to comply with situations such as when an employee is bargaining agreement, State law or regular attendance policies unless there hospitalized and his/her spouse calls employer leave policy. The example is a medical emergency would be the supervisor to report the absence, provided in current § 825.302(g) of an helpful, because the simple need for unaware that the attendance policy employee substituting paid vacation FMLA leave does not mean that regular requires that the human resources leave and the employer not being able notification is impossible. department be called instead of the to require notice from the employee In response to these comments, the supervisor. However, FMLA-protected under the FMLA because the vacation proposed revision of § 825.302(d) leave cannot be delayed or denied for leave policy does not require advance retains the current rule providing that failure to meet the employer’s timing notice has proved confusing because it an employer may require an employee standard where the standard is more is inconsistent with the employer’s right to comply with the employer’s usual stringent than those established in to require notice under the FMLA. notice and procedural requirements for § 825.302(a). This proposed revision of Accordingly, this language has been calling in absences and requesting leave. § 825.302(d) recognizes that call-in deleted. Sections 825.700 and 825.701 However, the Department proposes to procedures are necessary for employers address in more detail the interaction eliminate the current language stating to provide proper coverage to run their between the FMLA and the provisions that an employer cannot delay or deny businesses. The proposal also benefits of collective bargaining agreements, FMLA leave if an employee fails to employees by ensuring early State law, and employer policies. follow such procedures. The identification and protection of Section 825.303 (Employee notice combination of requiring employees to absences covered by the FMLA. comply with employer absence policies, Where FMLA protection is requirements for unforeseeable FMLA yet prohibiting employers from delaying appropriately delayed because the leave) or denying leave if such procedures are employee did not provide timely notice Current § 825.303 explains what not met in the current regulation, has of the need for leave, and the employee notice an employee must give in the proved confusing. This confusion has has an absence during the period in case of unforeseeable leave. Specifically, been exacerbated by language in the which he/she accordingly is not entitled current paragraph (a) explains the ‘‘as preamble accompanying the current rule to FMLA protection, that absence is soon as practicable’’ required timing of stating that while employers may not unprotected and can be treated in the the notice, and current paragraph (b) delay or deny FMLA leave for failure to same manner the employer would treat sets forth the method by which notice follow absence policies, they may ‘‘take any other unexcused absence. This is a can be given. The Department has heard appropriate disciplinary action.’’ 60 FR clarification of the ramifications of from numerous employers that the

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taking of unforeseeable leave is central Numerous other employer required to handle her needs without the to the administrative problems they commenters asserted that the ‘‘two day threat of being * * * terminated. experience with the FMLA, and the rule’’ interpreted in Wage and Hour In light of the apparent confusion SHRM FMLA Survey revealed that in its Opinion Letter FMLA–101 (see with regard to timing and sufficiency of members’ experiences, 60 percent of all discussion in § 825.302) is even more the required notice, and the critically FMLA leave is unforeseeable leave. unworkable in the context of unforeseen important nature of this topic, the Indeed, the significant number of cases FMLA leave because the employee is Department proposes to further clarify that have been litigated as to what not required to report the absence prior what constitutes timely and sufficient constitutes sufficient notice from an to the start of his/her shift even where notice when the need for leave is not employee in the case of unforeseeable it is practicable to do so. See, e.g., foreseeable. leave confirms the difficulties both Southwest Airlines Co. (the two-day Timing of Notice When ‘‘Not employers and employees experience rule allows employees to remain silent Foreseeable’’ under the current regulation. See when they have the knowledge and Spangler v. Federal Home Loan Bank, ability to give timely notice, and it ‘‘fails In the case of unforeseeable leave, the 278 F.3d 847, 852 (8th Cir. 2002) to recognize an employer’s legitimate Department proposes to maintain the (employee, who had made employer operational need for timely notice’’); requirement that an employee provide aware that she had problems with National Association of Manufacturers notice as soon as practicable under the depression, gave sufficient notice when (employees taking ‘‘unscheduled facts and circumstances of the particular she called in and indicated she was out intermittent leave routinely ignore case. While this is the same standard as because of ‘‘depression again’’); Gay v. mandatory shift call-in procedures (even notice for FMLA leave that is Gilman Paper Co., 125 F.3d 1432, 1434– if they are fully able to comply), wait foreseeable less than 30 days in 35 (11th Cir. 1997) (husband calling for two working days * * * and then report advance, the Department is aware that employee and indicating wife in the their absence as FMLA-qualifying’’). the employer’s need for prompt notice of the need for leave is heightened in hospital having some tests run was not The National Partnership for Women sufficient notice); Carter v. Ford Motor situations in which the need for leave is & Families and other employee not foreseeable. It is critical in such Co., 121 F.3d 1146, 1148–49 (8th Cir. advocates agreed that employees should 1997) (employee’s wife calling and situations that the employer be notified notify their employers about their need of the employee’s absence promptly so indicating he would be out because of for leave as quickly as is reasonably family problems did not provide that the employer can assure possible, but asserted that it also is appropriate staffing. Accordingly, the sufficient notice); Barr v. New York City important to ensure that employees are Transit Auth., 2002 WL 257823, at *7– Department expects that in all but the not penalized unfairly when confronted most extraordinary circumstances, 8 (E.D.N.Y. 2002) (employee calling in with unexpected emergencies. The sick reporting ‘‘swelling and tightness’’ employees will be able to provide notice Center for WorkLife Law similarly noted to their employers of the need for leave in legs and follow-up doctor’s note that for ‘‘working caregivers with a indicating swelling in legs and rapid at least prior to the start of their shift. seriously ill child or family member, To emphasize the importance of heart beat provided sufficient notice); medical emergencies are a way of life. notice when the need for FMLA leave Mora v. Chem-Tronics, Inc., 16 F. Supp. Intermittent FMLA leave allows these was unforeseen, the Department 2d 1192, 1216–17 (S.D. Cal. 1998) employees to be available to their proposes to add language to § 825.302(a) (invalidating call-in rule requiring families when they are needed most to clarify that it is expected employees employees to call in 30 minutes prior to without the stress of losing their jobs.’’ will provide notice to their employers shift in all circumstances); Hendry v. The Legal Aid Society’s Employment promptly. For example, if an employee’s GTE North, Inc., 896 F. Supp. 816, 828 Law Center noted that chronic illnesses child has a severe asthma attack and the (N.D. Ind. 1995) (employee calling in ill are devastating and wreak havoc on employee takes the child to the with a migraine headache provided employees’ lives also, and that the emergency room, the employee would sufficient notice). FMLA was specifically designed to not be required to leave his/her child in Employers and their representatives cover such episodic absences. The AFL- order to report the absence while the also mentioned the timing of employee CIO and the Association of Professional child is receiving emergency treatment; notification of the need for Flight Attendants emphasized that once the child’s medical situation has unforeseeable intermittent leave as a employees who experience stabilized, the employee can be particular problem in their unforeseeable absences due to chronic expected to report the absence. administration of the FMLA. For conditions are precisely those most in However, if the child’s asthma attack is example, Spokane County commented need of the FMLA’s protections, because resolved by the use of an inhaler at that it is often not notified that an their jobs are more in jeopardy than home followed by a period of rest, the employee is out for a serious health those of employees who suffer from a employee would be expected to call the condition until after the employee longer illness only once every two or employer promptly after ensuring the returns to work. The Pennsylvania three years. In explaining the difficulties child has used the inhaler. The Turnpike Commission stated: for employees who live with Department believes that this proposal The issue of [employees] failing to notify unforeseeable health conditions, an better balances the needs of employees their supervisors promptly that they are employee described her personal to take unforeseeable FMLA leave with taking FMLA leave is very prevalent in our experiences with her daughter’s chronic the interests of employers and other company. Some employees that are approved serious health condition: employees. for intermittent FMLA simply don’t show up for work, and then email or call their My daughter had a major asthma attack Content of Notice When ‘‘Not supervisor when the work day is almost over which caused a bronchial infection, swelling Foreseeable’’ to inform them that they are taking FMLA. and bacteria in her throat. * * * No one is This is extremely frustrating as an employer, capable of predicting an[ ] asthma attack or In proposed paragraph (b), the and there does not ever seem to be a valid the severity of the attack; I just would like Department retains the standard that an reason that the employee could not notify the the assurance of knowing that if or when the employee need not assert his or her supervisor earlier. situation should arise, I have the time off rights under the FMLA or even mention

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the FMLA to put the employer on notice medical treatment. For example, an FMLA notice obligations or its own of the need for FMLA leave. However, employee who seeks emergency internal rules. Current paragraph (b) consistent with the proposed changes treatment at a hospital may not be able explains that if 30 days notice is not discussed above with respect to to comply with the employer’s absence provided to the employer for foreseeable § 825.302, the Department proposes to reporting procedures if the employee leave, an employer may delay the taking require that the employee provide the does not have the telephone number for of FMLA leave for 30 days after the date employer with sufficient information to reporting absences with him or her and notice is given if no reasonable excuse put the employer on notice that the therefore leaves a message on the is provided. Current paragraph (c) states absence may be FMLA-protected. See supervisor’s voicemail (the employee that leave cannot be delayed if the Sarnowski v. Air Brook Limousine, Inc., may also be unable to comply with the employee was not aware of his or her F.3d—, 2007 WL 4323259, at *3 (3rd employer’s timing requirements due to notice requirements or the need for Cir. 2007) (‘‘In providing notice, the the emergency treatment). In contrast, leave and its timing were not clearly employee need not use any magic an employee who suffers a flare-up of a foreseeable to the employee 30 days in words. The critical question is how the chronic condition for which rest and advance. information conveyed to the employer is self-medication are the appropriate The proposal states the rules reasonably interpreted.’’). Sufficient treatment should be able to comply with applicable to leave foreseeable at least information is defined in the same the employer’s normal absence 30 days in advance, foreseeable less manner as proposed § 825.302(c), which reporting procedure. than 30 days in advance, and is information that indicates that the If an employee fails to follow the unforeseeable in different paragraphs for employee is unable to perform the employer’s call-in procedures (assuming purposes of clarity. Specifically, the functions of the job, the anticipated any required timing is not more Department proposes language that duration of the absence, and whether stringent than required by § 825.303(a)), provides practical examples of what it the employee intends to visit a health except under extraordinary means to delay FMLA leave in cases of care provider. In addition, because circumstances, then the employee is both foreseeable and unforeseeable issues are frequently raised with subject to whatever discipline the leave, such as a case where an employee employees giving notice of unforeseen employer’s rules provide for such a reasonably should have given the absences by simply calling in ‘‘sick,’’ failure and the employer may delay employer two weeks notice but instead proposed § 825.303(b) clarifies that FMLA coverage until the employee only provided one week notice. The calling in with the simple statement that complies with the rules. For example, proposal provides that in such a case, the employee or the employee’s family an employer requires that workers the employer may delay FMLA member is ‘‘sick’’ without providing needing unscheduled leave call a protected leave for one week. The more information will not be considered designated call-in number instead of proposal also provides that an employer sufficient notice to trigger an employer’s leaving a message on the supervisor’s can take disciplinary action for the obligations under the Act in the case of voicemail. An employee with a medical employee’s violation of the employer’s unforeseeable leave. Of course, many certification under FMLA for migraines internal call-in procedures, as long as unforeseeable conditions do develop leaves a message on the supervisor’s such procedures and discipline are and deteriorate over a period of a few voicemail indicating that the employee applied equally to employees taking days, and a condition that did not will be absent due to a migraine. Unless leave for non-FMLA reasons and the initially appear to be a serious health some extraordinary circumstance procedures do not require more advance condition may develop into one. The prevented the employee from complying notice than the standard in § 825.303. employee would be expected to provide with the employer’s requirement that Finally, the Department proposes to the employer the additional information the employee call the designated call-in retain language from current paragraph needed to determine if the serious number, the employer may treat the (c) stating that FMLA leave cannot be health condition standard is met as it employee’s failure to comply with the delayed due to lack of required notice became available. call-in rule in the same manner it would if the employer has not complied with The Department seeks comment as to normally handle such an infraction. The its notice requirements, which now will whether a different notice standard employer may also delay FMLA also include providing the general requiring employees to expressly assert protected leave until the employee notice in an employee handbook or their FMLA rights should apply in complies with the call-in procedure. Of annual distribution, as set forth in situations in which an employee has course, if the employer chooses to delay proposed § 825.300. previously provided sufficient notice of the employee’s FMLA leave until the Section 825.305 (Medical certification, a serious health condition necessitating employee complies with the call-in general rule) leave and is subsequently providing procedure, any leave that is not FMLA notice of dates of leave due to the protected may not be counted against Current § 825.305(a) sets forth the condition that were either previously the employee’s FMLA entitlement. general rule as to when an employer unknown or changed. Proposed § 825.303(c) also contains may request that an employee provide a language from current § 825.303(a) medical certification form to Complying With Employer Policy When stating that employers may not enforce substantiate the need for FMLA leave in ‘‘Not Foreseeable’’ advance written notice requirements connection with a serious health Proposed § 825.303(c) clarifies that an where the leave is due to a medical condition. employee must comply with the emergency. Current § 825.305(b) states that when employer’s usual procedures for calling leave is foreseeable and at least 30 in and requesting unforeseeable leave, Section 825.304 (Employee failure to (calendar) days notice has been given, except when extraordinary provide notice) ‘‘the employee should provide the circumstances exist (or the procedure Current § 825.304 addresses what medical certification before the leave imposes a more stringent timing employers may do if an employee fails begins.’’ If that is not possible, then the requirement than the regulations to provide the required notice for FMLA employer must give the employee at provide), such as when the employee or leave. Specifically, current paragraph (a) least 15 calendar days to provide the a family member needs emergency states that an employer may waive certification, unless it is not practicable

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to do so despite the employee’s diligent, five-business day standard and the leave. The Department believes that by good-faith efforts. requirement has been incorporated into defining these terms, employers will To help ensure that both employees proposed paragraph (b). better understand what triggers their and employers better understand this The Department proposes to create a obligations to give employees further requirement, the Department proposes new paragraph (c) entitled ‘‘complete opportunity to provide sufficient that the time-frame in this section for and sufficient certification,’’ certification, which will in turn protect submitting a medical certification be incorporated in part from paragraph (d) employees from having employers modified to clearly apply the 15-day of the current regulation. The immediately deny them FMLA standard for both foreseeable and Department has retained the standard protections based on the initial unforeseeable leave, consistent with the from the current regulations, which certification provided or deny their language in current § 825.311(a) and (b). advises employers that in the case of an certifications based on technicalities. The Department solicits comments on incomplete certification, they must give For example, under the current whether language should be added to the employee a reasonable period of regulation, an employer could interpret paragraph (b) of this section that would time to cure any deficiency. The a ‘‘vague’’ answer to simply be state that an employer must notify the Department proposes new language that insufficient and a basis to deny FMLA employee if the certification has not states ‘‘a certification is considered leave. Under the proposed regulation, been returned in the 15-day time period, incomplete if the employer receives a an employer must allow an employee an and give the employee another seven certification, but one or more of the opportunity to provide sufficient calendar days to provide the applicable entries have not been certification when the initial certification unless it is not practicable completed.’’ In response to the RFI, certification is either incomplete or under the particular circumstances to do many commenters, including insufficient. so despite the employee’s diligent, good faith efforts. The Department believes employers, employees, and health care The Department also proposes to that this proposed requirement may be providers, expressed dissatisfaction clarify the process for curing an necessary in light of Urban v. with the current medical certification incomplete or insufficient certification. Dolgencorp of Texas, Inc., 393 F.3d 572 process. The Department held a The Department received many (5th Cir. 2004), a decision which found stakeholder meeting with comments in response to the RFI an employee was not entitled to FMLA representatives of each of these groups indicating that employers were unsure leave because a certification was not in September 2007. Multiple employers how many opportunities an employee returned to the employer after a 15-day commented to the RFI that a must be given to cure an insufficient extension was granted to the employee certification should require not just that certification. See, e.g., Waste to submit the certification. In Urban, the the form is completed, but that Management, Inc. (‘‘The current employee argued that she did not realize meaningful responses are given to the regulation is open to interpretation that her health care provider had not questions. See, e.g., National Coalition regarding when information is due and returned the certification to the To Protect Family Leave (‘‘If health care how much additional time should be employer. She argued that since it was providers * * * do not provide direct afforded to employees who do not share not sent to her employer, she provided responses to the questions, the the FMLA certification forms timely.’’); an ‘‘incomplete’’ certification, and regulations should be modified to Federal Reserve Bank of Chicago therefore should have had an specify that the certification is not (‘‘There should be an absolute cut off opportunity to ‘cure’ the deficiency considered ‘complete’ for purposes of when an employer can require the under § 825.305(d). The court rejected the employee’s certification obligations, employee to submit a completed this argument, finding that a thereby not qualifying the employee for certification form and the consequence certification that was never given to the FMLA leave.’’); South Central Human of not meeting that deadline is that the employer was not ‘‘incomplete,’’ and Resource Management Association (‘‘We absence(s) is not covered by FMLA.’’); therefore the employee could not avail recommend the Regulations make clear Society for Human Resource herself of the provisions in § 825.305(d). that a ‘complete’ certification is Management (‘‘HR professionals often The court also observed that, as a policy required, that meaningful answers have have difficulty in determining how matter, the stated purpose of the FMLA to be furnished for all questions, and many times an employer must give an was to ‘‘balance the demands of the that a certification is ‘incomplete’ if a employee an opportunity to ‘cure’ a workplace with the needs of families’’ doctor provides ‘unknown’ or ‘as deficiency, and how long to allow them and ‘‘to entitle employees to take needed’ to any question.’’). The to provide such a complete reasonable leave for medical reasons’’ in Department agrees that an adequate certification.’’). Employees and their a ‘‘manner that accommodates the FMLA certification requires responsive representatives expressed a related legitimate interests of employers.’’ The answers and therefore also proposes to concern that some employers repeatedly court reasoned that ‘‘it would seem define an insufficient certification as indicated that certifications were illogical to require an employer to one where the information provided is incomplete but failed to specify what continually notify an employee who ‘‘vague, ambiguous or non-responsive.’’ additional information was necessary, failed to submit medical certification The Department proposes to define oftentimes necessitating that the within a specified deadline,’’ observing these terms because it is aware that employee make repeated appointments that in the case of Urban, a 15-day employers are unsure in many with the health care provider in an extension had already been granted. Id. circumstances what the distinction is effort to obtain a complete and sufficient at 577. between an incomplete versus an certification. See, e.g., An Employee Current § 825.305(c) provides that an insufficient certification, and whether Comment (‘‘[I]nsurmountable hurdle employer should request medical they must give an employee another which many employees encounter is, certification from the employee within opportunity to provide sufficient upon application for family leave, the two business days of receiving the certification when the initial Company returns the forms asking for employee notice. Consistent with the certification does not establish that the ‘more information’. Even though the modifications made to proposed employee has a serious health condition employee’s Health Care Provider has § 825.300, the Department proposes a or whether they can simply deny FMLA filled out the application sections

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relevant to the illness/injury, the providing the certification with any deleted text of current § 825.305(e), the Company is able to delay, and many necessary authorization from the Department proposes to add a provision times deny, for many weeks and months employee or the employee’s family allowing for annual medical the benefits and protections which the member—such as that required by the certifications in those cases in which Act affords.’’); Association of Health Insurance Portability and the serious health condition extends Professional Flight Attendants (‘‘[I]t is Accountability Act (HIPAA) Privacy beyond a leave year. This proposal simply unfair to send FMLA leave Regulations, 45 CFR Part 160 and 164, incorporates in the regulation the requests back to the employees and their or any other applicable law—in order Department’s statement in Wage and treating health care providers for more for the health care provider to release a Hour Opinion Letter FMLA2005–2–A medical facts, without ever indicating sufficient and complete certification to (Sept. 14, 2005) that a new medical what kinds of additional medical facts the employer to support the employee’s certification may be required once each are required before the employer will FMLA request. See Wage and Hour leave year. make a determination of medical Opinion Letter FMLA2005–2–A (Sept. Section 825.306 (Content of medical eligibility or medical ineligibility.’’); 14, 2005) (‘‘When requested, medical certification) International Association of Machinists certification is a basic qualification for and Aerospace Workers (‘‘We have FMLA-qualifying leave for a serious The information necessary for a many members who have their doctors health condition, and the employee is sufficient certification is set forth in fill out the paper work only to be told responsible for providing such section 103 of the Act. See 29 U.S.C. it is not properly filled out. The certification to his or her employer. If an 2613(b). The statute states that a employee fixes that problem and the employee fails to submit a requested medical certification ‘‘shall be Company tells them there is another certification, the leave is not FMLA- sufficient’’ if it states the following: the problem with the paper work. This protected leave.’’). date the condition commenced; the probable duration of the condition; occurs over and over until finally the Finally, current § 825.305(e) explains doctor or the employee, or both give ‘‘appropriate medical facts’’ regarding the interaction between the employer’s the condition; a statement that the up.’’) (emphasis in original). To address sick or medical leave plan and the these concerns, proposed § 825.305(c) employee is needed to care for a covered FMLA when paid leave (of any type) is family member or a statement that the requires that when an employer substituted for unpaid FMLA leave. The determines that a certification is employee is unable to perform the current regulation explains that if less functions of his/her position (as incomplete or insufficient, the employer stringent medical certification standards applicable); dates and duration of any must state in writing what additional apply to the sick leave plan, those planned treatment; and a statement of information is necessary and provide standards must be followed when paid the medical necessity for intermittent the employee with seven calendar days leave is substituted. The Department leave or leave on a reduced leave to cure the deficiency. Additional time proposes to delete this section. The schedule and expected duration of such must be allowed where the employee Department has heard feedback that it is leave. Id. notifies the employer within the seven unclear what constitutes less stringent Current § 825.306 addresses how calendar day period that he or she is information and how that information much information an employer can unable to obtain the additional would allow an employer to determine obtain in the medical certification to information despite diligent good faith if the leave should be designated as substantiate the fact that a serious efforts. The current regulations provide FMLA leave. For example, a plan that health condition exists. This section an employee ‘‘a reasonable opportunity’’ requires a doctor’s note may be currently explains that DOL has but no timeframe for curing an considered less stringent or more developed an optional form (Form WH– insufficient certification and the stringent depending on what type of 380) for employees or their family Department believes that a clear information is provided on the note, and members to use in obtaining medical timeframe will be helpful to employees that information may or may not certifications and second and third and employers. If the deficiencies indicate whether the leave is FMLA- opinions from a health care provider to specified by the employer are not qualified. See Wage and Hour Opinion substantiate the existence of a serious corrected in the resubmitted Letter FMLA–108 (Apr. 13, 2000) health condition for purposes of FMLA. certification, the employer may deny the (finding that certification requirements taking of FMLA leave. Finally, in light the employer asserted were ‘‘less Passage of HIPAA of the Urban decision discussed above stringent’’ were, in fact, more stringent Since the current FMLA regulations and the confusion that exists on this than FMLA requirements). Given this were issued in 1995, Congress enacted issue, language also is proposed that confusion, and the fact that Congress the Health Insurance Portability and specifies that a certification never clearly provided in 29 U.S.C. 2613 that Accountability Act (HIPAA) in 1996. submitted to the employer does not an employer could request a medical HIPAA addresses in part the privacy of qualify as an incomplete or insufficient certification to substantiate a ‘‘serious individually identifiable health certification but constitutes a failure to health condition’’ as a prerequisite to information. The Department of Health provide certification. being required to provide FMLA leave, and Human Services (HHS) Proposed paragraph (d), titled the Department proposes to eliminate promulgated regulations in December ‘‘[c]onsequences,’’ now sets forth the this language. Under the proposed rule, 2000 found at 45 CFR Parts 160 and 164 consequences if an employee fails to if an employee seeks the protections of that provide for the privacy of provide a complete and sufficient FMLA leave for a serious health individually identifiable medical medical certification, and reiterates the condition of the employee or qualifying information.15 These regulations apply standard under the existing regulations family member, an employer has a right only to ‘‘covered entities,’’ defined as a that an employer may deny leave. It to have the medical information health plan, a health care clearinghouse, clarifies that it is the employee’s permitted by the statute. Such or a health care provider who transmits responsibility either to provide such a information will best enable an any health information in electronic complete and sufficient certification or employer to determine if the leave is in to furnish the health care provider fact FMLA-qualified. In place of the 15 See 65 FR 82462 (Dec. 28, 2000).

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form in connection with a transaction as Paragraph (b)(2)(ii) of this section asks asks if the employee’s family member defined in the privacy regulations. See whether it will be necessary for the will need care only intermittently or on 45 CFR 160.102(a), 160.103. HHS has employee to take leave intermittently or a reduced leave schedule basis (i.e., stated that the statute does not include to work on a reduced leave schedule part-time), and the probable duration of ‘‘employers per se as covered entities.’’ basis (i.e., part-time) as a result of the the need. Therefore, the HHS regulations do not serious health condition (see current The RFI sought comments on how the regulate an employer, ‘‘even when it is §§ 825.117, 825.203), and if so, the current form WH–380 is working and a covered entity acting as an employer.’’ probable duration of such schedule. what improvements could be made to it See 67 FR 53192 (Aug. 14, 2002). Current paragraph (b)(2)(iii) asks if the to facilitate the certification process. The final regulations issued by HHS condition is pregnancy or a chronic The Department received significant may have an impact, either directly or condition within the meaning of current feedback from the stakeholder indirectly, on the medical certification § 825.114(a)(2)(iii), whether the patient community, including health care process for FMLA purposes. Under the is presently incapacitated and the likely providers, that the existing form is HIPAA Privacy Rule, the health care duration and frequency of episodes of confusing. See, e.g., American Academy provider is permitted to disclose incapacity. of Family Physicians (‘‘The form WH– protected health information directly to Current paragraph (b)(3)(i)(A) asks if 380 is overly complicated and confusing the patient. Therefore, if the employee additional treatments will be required in its format.’’); United Parcel Service, has the health care provider complete for the condition, and an estimate of the Inc. (‘‘The current WH–380 form is the medical certification form or a probable number of such treatments. poorly drafted and confusing.’’); document containing the equivalent Paragraph (b)(3)(i)(B) asks if the Association of Corporate Counsel (‘‘The information and personally requests a patient’s incapacity will be intermittent, current form is confusing and often copy of that form to take or send to the or will require a reduced leave results in incomplete or vague responses employer, the HIPAA Privacy Rule does schedule, an estimate of the probable by health care providers that are not and should not impede the number of and interval between such insufficient to assess the employee’s disclosure of the protected health treatments, actual or estimated dates of eligibility for leave or the timing of the information. If the employee asks the treatment if known, and period required leave.’’). Indeed, stakeholders have health care provider to send the for recovery if any. Paragraph (b)(3)(ii) shared with the Department that in a completed certification form or medical asks if any of the treatments will be number of cases, health care providers information directly to the employer or provided by another provider of health have refused to complete the the employer’s representative, however, services (e.g., physical therapist), and certification form. As the employee has the HIPAA Privacy Rule will require the the nature of the treatments. Paragraph the statutory burden of providing health care provider to receive a valid (b)(3)(iii) asks if a regimen of continuing sufficient medical information to authorization from the employee before treatment by the patient is required substantiate the need for FMLA leave, the health care provider can share the under the supervision of the health care this confusion poses a serious hardship protected medical information with the provider, and if so, a general description to the employee. Several stakeholders employer. As employers have a of the regimen (see current also have criticized the form for asking statutory right to require sufficient § 825.114(b)). health care providers to render legal medical information to support an Paragraph (b)(4) asks, if medical leave conclusions by certifying whether a employee’s request for FMLA leave for is required for the employee’s absence serious health condition exists as a serious health condition, if an from work because of the employee’s defined by the FMLA. employee does not fulfill his or her own condition (including absences due Several commenters suggested that obligation to provide such information to pregnancy or a chronic condition), the form could be simplified if it was upon request, the employee will not whether the employee: (i) is unable to broken into multiple forms, with qualify for FMLA leave. See Wage and perform work of any kind; (ii) is unable separate forms either for intermittent Hour Opinion Letter FMLA2005–2–A to perform any one or more of the and block leave, or for leave for the (Sept. 14, 2005). essential functions of the employee’s employee and leave for the employee’s position, including a statement of the family member. See, e.g., Yellow Book Current Certification Requirements essential functions the employee is USA (suggesting separate forms for With regard to what constitutes unable to perform (see current block and intermittent leave); National sufficient medical certification, current § 825.115), based on either information Council of Chain Restaurants § 825.306(b)(1) states that the health provided on a statement from the (suggesting separate forms for employee care provider must identify which part employer of the essential functions of and family members); Spencer Fane of the definition of ‘‘serious health the position or, if not provided, suggesting forms for: ‘‘(a) continuous condition,’’ if any, applies to the discussion with the employee about the leave for employee’s own serious health patient’s condition, and the medical employee’s job functions; or (iii) must condition; (b) continuous leave for facts which support the certification, be absent from work for treatment. serious health condition of a family including a brief statement as to how Paragraph (b)(5)(i) asks, if leave is member; (c) reduced schedule/ the medical facts meet the criteria of the required to care for the employee’s intermittent leave for employee’s own definition. Current § 825.306(b)(2)(i) family member with a serious health serious health condition; and (d) asks for the approximate date the condition, whether the patient requires reduced schedule/intermittent leave for serious health condition commenced, assistance for basic medical or personal serious health condition of a family and its probable duration, including the needs or safety, or for transportation; or member.’’). A physicians group probable duration of the patient’s if not, whether the employee’s presence suggested that use of a standard form, as present incapacity (defined to mean to provide psychological comfort would opposed to individual employer inability to work, attend school or be beneficial to the patient or assist in variations, would reduce the burden on perform other regular daily activities the patient’s recovery. The employee is health care providers. See American due to the serious health condition, required to indicate on the form the care Academy of Family Physicians; see also treatment therefor, or recovery he or she will provide and an estimate Kennedy Reeve & Knoll (‘‘The model therefrom) if different. of the time period. Paragraph (b)(5)(ii) certification form must be simplified,

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and then it must be the required form medication has been prescribed, allowed on the FMLA leave certification for employers to use.’’). referrals for evaluation or treatment form. However, the Department does not In reviewing the criticisms of the (physical therapy, for example) or any intend to suggest, by including such medical certification form, the other regimen of continuing treatment. language, that a diagnosis is a necessary Department notes that employers have a These examples of what constitutes component of a complete FMLA statutory right to obtain sufficient sufficient medical facts streamline the certification. If the medical facts set medical certification from an employee certification form by eliminating the forth by the health care provider’s to substantiate the existence of a serious need to ask several other questions that medical certification establish the health condition. See 29 U.S.C. 2613(a), are contained in the current regulations, necessity for leave due to a serious (b). However, the Department believes specifically those listed in health condition without reference to that the form can be simplified to make § 825.306(b)(2)(iii), (b)(3)(i)(A), (b)(3)(ii), the employee’s diagnosis, a diagnosis is it easier for health care providers to and (b)(3)(iii), and are intended to not necessary and may not be required. understand and complete. The simplify the certification process for The health care provider determines the Department proposes the following health care providers. appropriate relevant medical facts in revisions to the medical certification Proposed § 825.306(a)(3) also states any case and the employer determines form, to implement the statutory that the health care provider may if the certification is complete and requirements for ‘‘sufficiency’’ of the provide information on the diagnosis of sufficient to meet the regulatory medical certification as set forth in 29 the patient’s health condition. The term definition of a serious health condition. Proposed § 825.306(a)(4) requires that U.S.C. 2613(b). The Department has ‘‘diagnosis’’ was specifically not declined at this time to create multiple the health care provider provide included in the 1995 final regulations forms. However, the Department seeks sufficient information to establish that due to concerns expressed under the feedback as to whether multiple forms the employee cannot perform the Americans with Disabilities Act. See would be clearer than the revised Form functions of the employee’s job and the Preamble to Final FMLA Regulations, 60 WH–380 proposed in this rulemaking likely duration of such inability, FR at 2222. As noted, in response to the (see Appendix B to these proposed consistent with current § 825.306(b)(4). RFI, several commenters specifically regulations). Proposed § 825.306(a)(5) retains the requested that the Department require requirement currently found in Proposed Certification Requirements the employee’s health care provider to § 825.306(b)(5)(i) that information be Before detailing the proposed changes specify a diagnosis. See, e.g., South provided sufficient to establish that the to this section, the Department notes Central Human Resource Management employee is needed to care for a family that the medical certification process Association (‘‘an employer should be member, if applicable. remains optional for the employer. That permitted to obtain diagnosis and Proposed § 825.306(a)(6), (7), and (8) is, an employer is always free to prognosis’’); Detroit Medical Center (‘‘It address the need for certification in designate qualifying leave as FMLA is critical that the regulations and WH– connection with the need for reduced leave without requiring medical 380 form be changed to require actual schedule or intermittent leave for the certification of the underlying diagnoses to determine whether an employee’s own serious health condition. See 29 CFR § 825.305(a). employee’s absences correlate with the condition or that of a family member. Proposed § 825.306(a)(1) still requires medical certification.’’); MedStar These paragraphs incorporate the that the name and address of the health Health, Inc. (‘‘[T]he FMLA’s current requirements set forth in current care provider and type of medical restriction on obtaining a diagnosis § 825.306(b)(2)(i) and (ii), (b)(3)(i)(B), practice be identified, but also requires creates an unnecessary and awkward and (b)(5)(ii). In response to the RFI, that the pertinent specialization and fax limitation on the employee’s health care several commenters noted that current number of the health care provider be provider in completing the medical § 825.306 and the WH–380 model provided. This addition allows the certification form and the employer’s certification form do not require the employer to more efficiently contact the health care provider in seeking health care provider to certify the health care provider for purposes of clarification of information contained in medical necessity for intermittent leave, clarification and authentication as that form. Generally, meaningful which is a statutory requirement for the appropriate and in accordance with communications between the health taking of such leave under section proposed § 825.307 (discussed below). care providers cannot take place 102(b) of the Act. See, e.g., National The question of the approximate date on without some discussion about the Coalition to Protect Family Leave (‘‘In which the serious health condition actual diagnosis, particularly if second the case of intermittent leave, the commenced and the probable duration and third opinions are involved.’’). In medical necessity for the intermittent or has been retained in proposed practice, in many cases it may be reduced schedule also should be § 825.306(a)(2). difficult to provide sufficient medical specified in accordance with 29 C.F.R. Consistent with the statute, the facts without providing the actual § 825.117 (not currently asked on the Department proposes to retain the diagnosis, and in some cases the model form).’’); Society for Human requirement that a complete employee may prefer that a diagnosis be Resource Management (same); American certification contain appropriate provided as opposed to more detailed Electric Power (‘‘Unfortunately, the medical facts regarding the patient’s medical facts. The Department is also statutory requirement that ‘medical health condition for which FMLA leave aware that the diagnosis may often be necessity’ be demonstrated by is requested. See 29 U.S.C. 2613(b)(3). provided in practice under the current employees seeking intermittent leave The Department also has added regulation. For example, many health has been effectively eliminated by the guidance in this regulatory section as to care providers may currently write a Department’s regulations.’’). Consistent what constitutes sufficient medical facts diagnosis such as ‘‘asthma’’ on the with the statutory and the current for purposes of responding to this certification form instead of describing regulatory requirements, the proposed question. Specifically, the Department symptoms such as ‘‘intermittent section would now clarify that the proposes that such medical facts may difficulty in breathing due to inflamed health care provider must certify that include information on symptoms, airways.’’ The Department proposes, intermittent or reduced schedule leave hospitalization, doctors visits, whether therefore, that such information be is medically necessary.

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Interaction Between FMLA and what is contained in existing (‘‘In some cases, a medical release is Employer Policies § 825.207(d)(1) with regard to temporary attached to the FMLA form requesting Current paragraph (c) of this section disability benefit plans and proposed leave, with no explanation of its provides that an employer cannot § 825.207(a), although the existing purpose. As a result, many employees request all of the information set forth regulations do not define what unwittingly forego their right to medical above to substantiate the existence of a constitutes a disability plan. For privacy and agree to the unlimited serious health condition if an consistency and clarity, the Department disclosure of their entire medical employer’s sick leave plan requires less proposes that all disability and paid history, believing that they must sign information. Consistent with the change leave plans be covered by this the release in order to qualify for the made to § 825.305(e), the Department provision. FMLA.’’); United Steel, Paper and Forestry, Rubber, Manufacturing, proposes to eliminate this language. Interaction Between FMLA Certification Energy, Allied Industrial and Service Instead, the proposal incorporates and ADA Medical Inquiries language from current § 825.307(a)(1), Workers International Union (‘‘The The Department received comments USW asks the DOL to clarify that which explains the interaction between in response to the RFI indicating that workers’ compensation and the FMLA employees are not required to provide a employers were frustrated and confused release of medical information to the with regard to the clarification of by the differing processes for gathering medical information. Specifically, the employer as a condition of applying for medical information under the FMLA or receiving FMLA leave.’’). In the current regulation provides that if a and the ADA. See generally RFI Report, preamble to the current regulations, the workers’ compensation statute provides Chapter VII, Interplay Between the Department specifically rejected for an employer to have direct contact Family and Medical Leave Act and the suggestions that employees be required with the workers’ compensation health Americans With Disabilities Act, 72 FR to sign a release or waiver as part of the care provider, the employer may do so at 35599. The United Parcel Service, medical certification process. See 60 FR even if the leave also may be designated Inc. explained the dilemma faced by 2222 (‘‘The Department has not adopted FMLA leave. The Department proposes employers: ‘‘When an FMLA-qualifying the suggestion that a waiver by the to amend this language to state that if ‘serious health condition’ is also a employee is necessary for FMLA the employer is permitted ‘‘to request potential ‘disability’ under the ADA, purposes.’’). The Department continues additional information’’ from the [§ 825.306’s] restriction on medical to believe that employees should not be workers’ compensation health care information is in conflict with the ADA required to sign a release as a condition provider, the FMLA does not prevent interactive process, which allows—and of taking FMLA leave and has added a the employer from following the arguably requires—an employer to new § 825.306(e) to clarify this issue. Of workers’ compensation provisions. The gather far more medical information course, when certification is requested, Department notes that for purposes of regarding an employee so that it can the employee is required to provide the HIPAA, ‘‘individuals do not have a right make an informed decision regarding employer with a complete and sufficient under the Privacy Rule at 56 CFR possible accommodations.’’ See also certification and failure to do so may 164.522(a) to request that a covered Temple University (‘‘FMLA restrictions result in the delay or denial of FMLA entity restrict a disclosure of protected particularly are problematic when leave. health information about them for employers face a request from an workers’ compensation purposes when employee that triggers obligations under Section 825.307 (Authentication and that disclosure is required by law or both the FMLA and ADA, given that the clarification of medical certification) authorized by, and necessary to comply latter requires the employer to engage in Current § 825.307(a) explains that a with, a workers’ compensation or interactive processes to accommodate health care provider working for an similar law.’’ See Department of Health the employee.’’). The Department employer can contact the employee’s and Human Services, Office of Civil recognizes that an employee’s request health care provider with the Rights Publication, ‘‘Disclosures For for leave due to a serious health employee’s permission for purposes of Workers’ Compensation Purposes: condition may also trigger the clarification and authentication of the Frequently Asked Questions,’’ interactive process under the ADA to medical certification. Commenters December 3, 2002. determine whether the condition is also raised two major areas of concern in The Department also proposes to add a disability. The Department therefore their response to the RFI regarding the language to this section that clarifies the proposes to add a new § 825.306(d), authentication and clarification process: interaction between paid leave or which clarifies that where a serious (1) The requirement that employers benefit plans and FMLA leave. health condition may also be a obtain employee permission to contact Consistent with Wage and Hour disability, employers are not prevented the employee’s health care provider, Opinion Letter FMLA2004–3–A (Oct. 4, from following the procedures under the and (2) the requirement that a health 2004), the proposed language in this ADA for requesting medical care provider working for the employer section clarifies that if an employee information. be utilized to contact the employee’s ordinarily is required to provide Finally, the Department received health care provider, rather than additional medical information to comments from employees and their allowing direct employer contact. receive payments under a paid leave representatives indicating that Several commenters asserted that the plan or benefit plan, an employer may employers are incorporating medical requirement that an employer obtain the require that the employee provide the releases into their FMLA certification employee’s permission prior to seeking additional information to receive those forms and requiring employees to sign authentication of the certification from payments, as long as it is made clear to the release as a condition of providing the employee’s health care provider the employee that the additional FMLA leave. See An Employee makes it extremely difficult for information is requested only in Comment (‘‘Also, my employer [has] employers to investigate suspected connection with qualifying for the paid requested me to sign a medical release fraud related to medical certifications. leave benefit and does not affect the form for my son’s medical records, or I See, e.g., Robert Haynes, HR— employee’s unpaid FMLA leave wouldn’t be certified for FMLA.’’); Legal Compliance Supervisor, Pemco entitlement. This language reiterates Aid Society—Employment Law Center Aeroplex, Inc. (noting difficulty in

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investigating fraud when employee’s information than current § 825.307(a). employers commented that the consent is necessary for the employer to For example, a valid authorization requirement that they communicate authenticate form with employee’s under the HIPAA Privacy Rule requires, only through a health care practitioner health care provider); United States in part, a written document containing: resulted in significant cost and delay. Postal Service (suggesting that a ‘‘simple (1) A description of the information that See, e.g., Milwaukee Transport Services, and fair way to remedy this problem is may be disclosed; (2) the name or Inc. (‘‘In 2006 alone, MTS spent to allow an employer to make contact specific identification of the person(s) to $23,000.00 for the services of a with the provider for the purpose of whom the requested disclosure may be designated health care provider because confirming authenticity’’); Taft, made; (3) a description of the purpose it was not itself permitted under the Stettinius & Hollister LLP (‘‘Where of the requested disclosure; (4) an FMLA regulations to ask questions authenticity is suspect, the employer’s expiration date or event for the which that provider was then forced to inquiry is not medically related but authorization; and (5) a signature of the ask on its behalf.’’); City of Portland rather, is intended to determine whether individual and date. 45 CFR (‘‘The Act requires employers to use the the employee’s health care provider 164.508(c)(1). In any instance in which employee as an intermediary to issued the certificate and that it has not the employee’s health care provider is communicate with doctors or incur been altered. In such circumstances, the disclosing medical information to the substantial costs hiring additional restrictions contained in Section employer, the HIPAA Privacy Rule doctors to consult with employee 825.307(a) serve no useful purpose, requires that the employee execute a physicians or, in narrow circumstances, impose unnecessary expense on valid authorization prior to the to give second and third opinions.’’); employers, and are not justified by any disclosure. The Department agrees with Hewitt Associates LLC (‘‘The employer’s language in the Act.’’). The Department those commenters who suggested that engagement of its own health care notes that authentication involves only the protections afforded to employee provider is expensive, takes additional verifying that the certification was medical information by the HIPAA time and ultimately delays the decision completed, or authorized, by the Privacy Rule have supplanted the to approve or deny a leave request.’’). employee’s health care provider and requirement in current § 825.307(a) for Other commenters suggested that their does not involve disclosure of any employee permission to clarify the human resources professionals could additional medical information. certification. See Ohio Public Employer more efficiently clarify the certification Accordingly, proposed § 825.307(a) Labor Relations Association (‘‘With with the employee’s health care clarifies the limited nature of the HIPAA laws protecting confidential provider because they were both better authentication process and removes the medical information, the excessive versed in the FMLA and more familiar requirement of employee consent to restrictions found in 29 C.F.R. § 825.307 with the employee’s job duties and the authenticate the certification. are unnecessary and should be work environment than the employer’s Unlike authentication, clarification removed.’’); Taft, Stettinius & Hollister health care provider. See, e.g., does involve communication with the LLP (‘‘HIPAA and similar laws provide Association of Corporate Counsel employee’s health care provider ample protection for personal health (‘‘[T]he employer’s staff members—often regarding the substance of the medical data and the employee’s health care its Human Resources employees—are information contained in the provider can always refuse to disclose usually more knowledgeable about the certification. Several commenters noted information if he or she considers a specific job requirements and other that the passage of HIPAA (discussed request for clarification to implicate information that may be relevant or above in § 825.306) has complicated the privacy issues.’’); Hewitt Associates LLC helpful to the employee’s health care process of clarification of FMLA (‘‘[G]iven HIPAA concerns, it’s likely provider in making his/her certifications. See, e.g., Methodist that the employee will still have a check assessment.’’). Commenters also noted Hospital, Thomas Jefferson University over the process as the health care that the ADA does not contain a similar Hospital (‘‘With [HIPAA] regulations provider would require the employee’s restriction requiring employers to physicians are reluctant to share permission before he or she would engage medical providers to contact information with Employers who are speak with the employer.’’). employees’ doctors. See, e.g., trying to accommodate Employee Accordingly, in lieu of the requirement Commonwealth of Pennsylvania; Clark medical conditions to minimize in current § 825.307(a) that the Hill PLC; City of New York; Edison absence.’’); American Academy of Family Physicians (‘‘We agree with employee provide permission for the Electric Instituted. The AFL–CIO, comments that the Health Insurance employer to clarify the medical however, commented that the use of a Portability and Accountability Act certification, the Department proposes health care provider was necessary to (HIPAA) has created confusion about language highlighting that contact preserve employee privacy. the disclosure of information on the between the employer and the The Department has considered the FMLA form. As employers are not employee’s health care provider for the comments on this issue particularly in covered entities, disclosure directly to purpose of clarifying the medical light of the HIPAA Privacy Rule, and the employer is prohibited without an certification must comply with the has determined that employers should authorization by the patient.’’); AIG HIPAA Privacy Rule. Language has also be allowed to directly contact the Employee Benefit Solutions’ Disability been added to make clear that if such employee’s health care provider for the Claims Center (‘‘More than one Provider consent is not given, an employee may purposes of authenticating and has written ‘HIPAA’ across the Form jeopardize his or her FMLA rights if the clarifying the medical certification. and returned it.’’); Briggs & Stratton information provided is incomplete or Accordingly, proposed § 825.307(a) Corporation (‘‘[M]any physicians still insufficient. eliminates the requirement that the insist that they are prohibited by The second major area of concern employer’s health care provider, as [HIPAA] from responding to questions raised in the comments to the RFI opposed to the employer itself, make the on the Certification.’’). regarding § 825.307(a) was the contact to an employee’s health care The Department notes that the HIPAA requirement that the employer utilize a provider. The Department believes that Privacy Rule provides far more health care provider to contact the this change would significantly address protection for employee medical employee’s health care provider. Many the unnecessary administrative burdens

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the current requirement creates and, in which leave is sought from the Section 825.308 (Recertifications) light of the protections provided by the employee’s (or family member’s) health Current § 825.308 specifies when an HIPAA Privacy Rule, will not care provider to the second or third employer may request subsequent significantly impact employee privacy. opinion provider. recertifications of medical conditions. In The Department notes again, however, The final issue in § 825.307 that cases of pregnancy, chronic, or that such contact by the employer may garnered significant comments and an permanent/long-term conditions, only take place after the employee has issue which the Department is hearing recertifications may be requested no been afforded the opportunity to cure about more is the requirement in current more often than every 30 days (and only any deficiencies with the certification. in connection with an absence) unless Current § 825.307(a)(1), which § 825.307(f) that under certain circumstances described in the initial addresses rules governing access to circumstances, the employer shall certification have changed significantly, medical information when a workers’ accept the medical certification and or the employer receives information to compensation absence also is at issue, second and third opinions from a cast doubt on the employee’s stated has been moved to proposed § 825.306 foreign health care provider. In response reason for the absence. If the time because that section also addresses what to the RFI, several commenters stated period specified by the health care medical information an employer can that this requirement has caused obtain in connection with an FMLA numerous problems. See, e.g., Spencer, provider for the duration of the absence. Fane, Britt & Browne LLP (‘‘First, incapacity or its treatment is longer than 30 days, an employer may not request Current § 825.307(a)(2) and (b) cover employers have no idea whether the recertification until the minimum the requirements an employer must health care provider has training and duration has passed, unless the meet when obtaining a second opinion. credentials equivalent to U.S.-licensed The existing language of current employee requests an extension of health care providers. Second, it is leave, circumstances have changed § 825.307(a)(2) and (b) has been difficult to verify that the foreign health incorporated into proposed § 825.307(b), significantly, or an employer has care provider even completed the form. received information that casts doubt on titled ‘‘[s]econd opinion’’. Employers * * * Third, obtaining a second and expressed significant frustration with the validity of the certification. This third opinion is next to impossible same rule applies to intermittent leaves the second and third opinion process in *** .’’); U.S. Chamber of Commerce responding to the RFI— and questioned of absence. If no time period is specified (‘‘These companies have had to obtain its utility. Specifically, several and the condition is other than the services of translators and health employers commented on the expense pregnancy, chronic, or long-term or involved in the second and third care providers with foreign language permanent, an employer can request opinion process. See, e.g., Honda skills to discuss the certification with recertification every 30 days or more (‘‘Based upon Honda’s experience, foreign doctors.’’); Fairfax County Public frequently if the employee requests an second and third opinions average over Schools (‘‘Approximately 20% of the extension of leave, circumstances have $700 per second or third opinion, and FCPS FMLA requests are for leave for changed significantly, or an employer cost the employees their time.’’); Yellow immediate family members who live has received information that casts Book USA (asserting that second outside the U.S. and have received doubt on the validity of the certification. opinions are so expensive they are not medical diagnoses from individuals of The Department proposes to re- used). Other commenters noted unclear medical qualifications.’’). structure § 825.308 for the sake of practical concerns regarding finding Commenters suggested that there should clarity. Proposed paragraphs (a), (b), and physicians to perform second opinions. be additional requirements for (c) now clearly apply to all medical See, e.g., United States Postal Service certifications for foreign health care conditions and work in conjunction (‘‘We are experiencing increasing providers. See, e.g., Spencer, Fane, Britt with each other. Paragraph (a), titled difficulty finding physicians who will & Browne LLP; U.S. Chamber of ‘‘30-day rule,’’ merely states a general perform a second opinion medical Commerce; Fry’s Electronics, Inc. At the rule that an employer may request exam.’’); FNG Human Resources present time, the substance of recertification no more often than every (‘‘Requesting a second opinion is § 825.307(f) remains unchanged. 30 days and only in connection with the neither economically feasible nor Nevertheless, the Department seeks absence of the employee. This rule is beneficial in our area. We do not find further public comment about what subject to the more specific occurrences healthcare providers willing to state that specific changes would allow for better described in paragraphs (b) and (c). another provider is incorrect in his/her authentication in this area. Paragraph (b), titled ‘‘[m]ore than 30 diagnosis.’’). The Department notes that days,’’ explains, consistent with the In order to assist individuals referring the statute itself mandates the second existing regulation, that if a minimum and third opinion process, including to the regulations on second and third duration for the period of incapacity is that the employer cannot use a health opinions, proposed changes have been specified, the employer may not request care provider it regularly employs to made to add titles to each paragraph in recertification until that time period has render the second opinion, and that the this section. Paragraph (c) is now titled, expired, but adds that in all cases, employer bears the costs of the second ‘‘[t]hird opinion,’’ paragraph (d) is recertifications may be requested every and third opinions. 29 U.S.C. 2613(c), titled, ‘‘[c]opies of opinions,’’ paragraph six months. An example has been (d). Thus, the Department has (e) is titled ‘‘[t]ravel expenses,’’ and provided to give further guidance on determined that it is not appropriate to paragraph (f) is titled, ‘‘[m]edical this issue. This proposal addresses change the current regulation. In order certification abroad.’’ The timeframe for situations where a certification is to increase the utility of the second and employers to provide employees with provided that states an employee may third opinion process, however, the copies of second and third medical be incapacitated and in need of Department proposes to add language to opinions upon the employees’ request intermittent leave for an extended § 825.307(b)(1) and (c) requiring the under paragraph (d) is proposed to be period. There is confusion under the employee (or family member) to extended from two to five business existing requirements as to whether an authorize the release of relevant medical days, to be uniform with other similar employer would be able to obtain information regarding the condition for timeframes. recertification in a given year absent a

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significant change in circumstance or a employee and physician.’’). The have changed significantly based on the reason that casts doubt on the validity American Academy of Family duration or frequency of the absence or of the absence where the certification Physicians also objected to allowing the nature or severity of the illness, or indicates that the duration of the recertifications every 30 days for if the employer receives information condition is ‘‘lifetime.’’ Conversely, conditions that are medically stable: that casts doubt upon the employee’s under current law, where an employee ‘‘This is a burden to physicians who stated reason for the absence or the has a chronic condition certified to last must spend time completing the form to continuing validity of the certification. an ‘‘indefinite’’ period of time, that indicate that a chronic condition is still The remaining provisions of the existing certification may be treated as having no being managed. It would lessen this regulation have been incorporated durational timeframe and the employer burden to allow recertification only for without any substantive changes. may require a recertification every 30 those conditions which are not However, examples have been added to days in connection with an absence. See categorized as chronic care or illustrate what constitutes a change in Wage and Hour Opinion Letter permanent disability.’’ See also Mark circumstances or information that FMLA2004–2–A (May 25, 2004). Blick DO, Rene Darveaux MD, Eric would ‘‘cast doubt.’’ See also Wage and In response to the RFI, some Reiner MD, Susan R. Manuel PA-C Hour Opinion Letter FMLA2004–2–A employers argued that recertification (‘‘One employer requires us to complete (May 25, 2004) (noting that a pattern of should be permitted every 30 days even the form every 60 days (ATT/SBC), one Friday/Monday absences would permit where the certification indicates that the employer every 90 days and another an employer to request recertification in condition will last for an extended every year. Chronic conditions less than 30 days provided that there duration. See, e.g., University of extending a patient’s lifetime such as was no evidence of a medical basis for Minnesota (‘‘In all cases, employers diabetes and hypertension are not going the timing of the absences). No changes have been proposed to should have the right to request to change and there is no reason the paragraph (d) from the current recertification from an employee on form has to be updated multiple times regulations except it is titled, FMLA leave every thirty days.’’); throughout the year.’’); An Employee ‘‘[t]iming.’’ Carolyn Cooper, FMLA Coordinator, Comment (‘‘[E]ven though my mother’s illness is terminal and my father’s A new paragraph (e) has been City of Los Angeles (‘‘A remedy to this condition is considered lifetime, I still proposed, titled ‘‘[c]ontent,’’ that manipulation or gaming of the medical am required to fill out forms and have confirms an employer may ask for the recertification restriction pertaining to a doctor sign them every 3 months. The same information when obtaining intermittent/reduced work schedule physician’s office now charges me $20 recertification as that permitted for the leaves is to allow employers to request for each form I have to have them sign. original certification as set forth in recertification every 30 days, regardless As you can imagine, this takes a lot of current § 825.306. In addition, if the duration indicated in the initial time and money.’’). consistent with Wage and Hour Opinion medical certification is greater than 30 Taking all of the comments into Letter FMLA2004–2–A (May 25, 2004), days.’’) (emphasis in original); United consideration, the Department believes the proposed regulation states that as Parcel Service, Inc. (‘‘As currently that it would be reasonable for part of the information allowed to be drafted, [the] language permits employers to obtain recertifications obtained on recertification, the employees to evade the 30-day every six months in circumstances in employer may provide the health care recertification requirement by having which the certification indicates that the provider with a record of the employee’s their health care provider specify a condition will last for an extended absence pattern and ask the health care longer period of time.’’). Employees and period of time. An extended period of provider if the serious health condition their representatives, however, time includes not only specific months and need for leave is consistent with commented that frequent recertifcations or years (e.g., one year) but certified such a pattern. are burdensome for employees. See, e.g., durations of ‘‘indefinite,’’ ‘‘unknown,’’ Proposed paragraph (f) sets forth International Association of Machinists or ‘‘lifetime.’’ This is a change in the without change the requirements of and Aerospace Workers (‘‘[O]ur law from the current construction as current § 825.308(e) that the employee is members find that the requirement to explained above and expounded in responsible for the costs associated with recertify every 30 days is incredibly Wage and Hour Opinion Letter the recertification and that no second or burdensome. * * * [I]t is very FMLA2004–2–A (May 25, 2004). The third opinion may be required. The expensive for employees to get re- Department feels six months is a Department notes that several certifications. Some employees, reasonable timeframe for permitting employers responding to the RFI particularly in rural areas, have to travel recertification of such conditions but requested that the Department allow long distances to even see their doctor. requests comments on this proposal. second and third opinions on It is ironic that often these employees This is also consistent with the recertifications. See, e.g., United States actually have to miss more work time Department’s proposal in § 825.115(c) Postal Service (‘‘[A] second opinion just to get the recertification.’’); An that ‘‘periodic’’ visits to a health care should be allowed during the lifetime of Employee Comment (‘‘For an employer provider for a chronic serious health an employee’s condition, so long as to repeatedly request for recertifications condition is defined as at least twice per there is reason to doubt the validity of every 30 days, for an chronic Asthmatic year. the information in the certification.’’); who has an unforeseeable mild flare-up Proposed paragraph (c) of this section Air Transport Association of America, that can be taken care of with explains, with some modifications to Inc. and Airline Industrial Relations prescription medication, seems the current rule, what circumstances Conference (‘‘Second and third opinions unreasonable and repetitious.’’); must exist to request medical should also be available to employers on Kennedy Reeve & Knoll (‘‘The frequency recertification in less than 30 days and a medical recertification.’’). The with which some employers are is now titled ‘‘[l]ess than 30 days.’’ The National Partnership for Women & requiring notes and recertification is proposed paragraph explains that Families, however, argued that the fact both logistically (due to the availability recertification may be requested in less that the statute only refers to second and of doctor’s appointment times) and than 30 days if the employee requests an third opinions on initial certifications financially burdensome on the extension of leave, the circumstances supports the current regulatory

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prohibition on second and third statement of ability to return to work. It involved.’’ The Coalition and a number opinions on recertification. However, also provides that a health care provider of other commenters stated that the both Honda and the AFL-CIO noted that employed by the employer can contact return to work process under the FMLA employers are already permitted to the employee’s health care provider conflicts with the return to work process reinitiate the certification process on an with the employee’s permission for under the ADA, with the latter annual basis, which offers the employer purposes of clarifying the employee’s providing a better model because it the opportunity to seek a second fitness to return to work, that no allows both more substantive opinion annually. See supra discussion additional information may be acquired, information and physical examinations. of proposed § 825.305(e). The and that the employee’s reinstatement In contrast, as explained in more Department believes that allowing may not be delayed while contact with detail with regard to paragraph (g) of employers to request a new medical the health provider is made. A number this section, several commenters certification on an annual basis (and a of commenters responding to the RFI representing employees, including the second and third opinion, if addressed the ‘‘simple statement’’ rule. National Partnership for Women & appropriate) allows employers sufficient Some employers noted that particular Families, cautioned that altering the opportunity to verify the serious health safety concerns inherent in their fitness for duty certification procedures condition. Accordingly, the Department workplaces necessitated that they obtain under the FMLA would place an has retained the regulatory prohibition clear information regarding an ‘‘unwarranted burden’’ on employees. on second and third opinions on employee’s ability to safely return from The proposed regulation retains the recertification, but seeks comment about leave. For example, Union Pacific basic fitness-for-duty certification this in light of the restructuring of Railroad Company noted that clear procedures, but states that for purposes § 825.308. information regarding its employees’ of authenticating and clarifying the ability to work is critical as ‘‘those very fitness-for-duty statement, the employer Section 825.310 (Fitness-for-duty may contact the employee’s health care certification) employees are entrusted with jobs that affect the safety and security of the provider consistent with the procedures Current § 825.310 explains when an general public.’’ The Association of set forth in § 825.307 above. The employer may require an employee to American Railroads also stated that proposal also replaces the requirement provide a fitness-for-duty certification. ‘‘returning an employee to work is not that the certification must only be a Current paragraph (a) of this section a ‘simple’ process in cases where the ‘‘simple statement’’ with the statutory explains that employers may have a employee performs a safety sensitive language that the employee must obtain uniformly applied policy or practice job.’’ Therefore, it recommended that a certification from his or her health that requires similarly situated the Department should ‘‘define a return care provider that the employee is able employees who take leave to provide a to work ‘certification’ in such a way as to resume work. The employer may certification that they are able to resume provide the employee with a list of the to allow employers to require a detailed work. The Department proposes to add employee’s essential job duties together certification similar to what is required a sentence to paragraph (a) clarifying with the eligibility notice, in which (as when an employee first requests FMLA that employees have the same obligation provided for in proposed leave.’’ Similarly, the Maine Pulp & to provide a complete certification or § 825.300(b)(3)(v)) the employer advises Paper Association stated: provide sufficient authorization to the the employee of the necessity for a health care provider to provide the Employees in the paper industry routinely fitness-for-duty certification. If the information directly to the employer at work with hazardous materials in close employer provides such a list of the fitness-for-duty stage as they do in proximity to heavy machinery. Forcing essential functions, it may require the the initial certification stage. employers to accept the employee’s medical employee’s health care provider to No changes have been proposed to provider’s simple statement that the employee ‘‘is able to resume work,’’ or worse, certify that the employee can perform paragraph (b), which explains that if in the case of an intermittent leave-taker, them. When providing a fitness-for-duty State or local law or the terms of a accept the employee’s word alone with no certification, the health care provider collective bargaining agreement govern medical verification whatsoever jeopardizes therefore must assess the employee’s an employee’s return to work, those the safety of co-workers and increases ability to return to work against these provisions apply, and that the ADA exposure to expensive workers’ identified essential functions. However, requires that any return-to-work compensation claims. MPPA’s members have if the employer wants the health care physical be job-related and consistent strong safety programs which should not be provider to consider a list of essential with business necessity. The court in undercut by administrative requirements of functions, it must provide them with the Harrell v. USPS, 445 F.3d 913, 926–27 the FMLA. eligibility notice; providing the list at a (7th Cir.), cert. denied, 127 S. Ct. 845 Jackson Lewis LLP stated that the later date could force the employee to (2006), deferred to this regulation, ‘‘simple statement’’ provision allows make an extra visit to the health care holding that it reasonably implements employees to present ‘‘cursory and provider or to incur extra expense or the statute and is consistent with the conclusory notes asserting, without any delay. The statement in the current legislative history by providing that a factual explanation, that they are regulations that no additional collective bargaining agreement ‘‘may ‘cleared to return to work without information may be acquired has been impose more stringent return-to-work restrictions.’ Employers must ignore deleted, as the process of clarifying the requirements on the employee than facts suggesting employees are not fitness-for-duty certification may result those set forth in the statute.’’ qualified to perform their jobs or might in the employer obtaining additional Current paragraph (c) of this section pose a direct threat of harm to information not initially provided on explains the procedures for obtaining a themselves or others.’’ The National the fitness-for-duty certification. But the fitness-for-duty certification and states Coalition To Protect Family Leave also employer may not request or require that an employer may seek certification noted that ‘‘the inability of an employer additional information in a certification only with regard to the condition that to obtain more than a ‘statement’ that to establish fitness-for-duty than is caused the employee’s need for leave. the employee can return to work, and specified under these regulations. The existing regulation provides that the lack of opportunity to challenge such a The Department also requests further certification itself need only be a simple statement, creates risk for everyone input concerning the appropriate level

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of information that may be obtained and employer has a handbook, the employer puts the employee and his/her co- the process that employers may follow should include its general policy with workers at risk and requires the in connection with a fitness-for-duty regard to fitness-for-duty certifications. employer to assume a legal risk for certification. This includes, but is not The current regulations further provide liability, if there is an accident caused limited to, whether additional that no second or third opinions on by the reinstated employee.’’ Therefore, information or procedures (such as a fitness-for-duty certifications may be Honda suggested that employers should second and third opinion process) required. The Department proposes to be permitted to require a fitness-for-duty should be permitted where an employer modify this section by specifying that form for employees returning from has reason to doubt the validity of the the notice of the fitness-for-duty intermittent leave, but only ‘‘when it is fitness-for-duty certification. Although certification requirement is to be consistent with the employer’s the Department did not ask specific provided in the eligibility notice set ‘uniformly-applied policy or practice’ questions regarding these topics in the forth in proposed § 825.300(b). applicable to all similarly-situated RFI, some commenters did address Current paragraph (f) of this section employees [the general standard for them. For example, the Association of provides that an employer may delay fitness-for-duty certifications in Corporate Counsel suggested that restoration to employment until an § 825.310(a)].’’ The City of New York employers should be permitted to employee submits a required fitness-for- commented that ‘‘Fitness for Duty require an employee returning from duty certification unless the employer Certifications for employees in safety- FMLA leave to undergo a return to work has failed to provide the notice required sensitive positions who are physical conducted by the employer’s by paragraph (e). This language has been intermittently absent should be an physician, so long as the employer retained in the proposed regulations. option for employers. For example, if a regularly requires such a physical for all The Department proposes, however, to sanitation worker responsible for employees returning to work. The Ohio add language, consistent with current driving a two-ton truck on public Department of Administrative Services § 825.311(c), to make clear that the roadways takes intermittent leave to and the National Council of Chain employee is not entitled to the treat high blood pressure, a fitness for Restaurants stated that employers reinstatement protections of the Act if duty certification should be required should be allowed to get a second he or she does not provide such a before the employee is restored to the opinion on a return to work certification requested certification or request position which carries an extreme when they have reason to doubt the additional FMLA leave. responsibility to the public.’’ Dallas validity of the release. Briggs & Stratton Current § 825.310(g) provides that an Area Rapid Transit similarly stated that Corporation similarly suggested that an employer cannot obtain a fitness-for- allowing employers ‘‘to request a employer should be permitted, ‘‘at its duty certification when an employee Fitness for Duty certification [for expense, to require verification of the returns from an intermittent leave employees returning from intermittent treating health care providers’ return to absence. Numerous commenters leave] would protect the safety of both work certification,’’ arguing that the responding to the request for the employee and the public, and current prohibition impedes an information addressed this provision. support the employer’s efforts and employer’s ability to fulfill its OSHA The employer comments indicate that regulatory requirement to provide a safe obligation to provide a safe work place. the primary purpose of requiring a workplace, while also providing a safe The National Coalition To Protect fitness-for-duty certification is to make efficient service to its customers.’’ Such Family Leave also stated that the sure the employee is able to resume employers suggested that the FMLA prohibition on second and third work safely without harming the return to work process undercuts opinions on fitness for duty employee, co-workers, or the public. legitimate employer safety programs. certifications is ‘‘problematic from a When leave is taken intermittently, Therefore, numerous commenters, safety perspective’’ and conflicts with employers state that they may need to including Willcox & Savage, Foley & the ADA process. Therefore, it suggested determine whether the employee is fit Lardner LLP, the National Retail that employers should be able to for duty when safety concerns are at Federation, the National Council of challenge a certification obtained from issue, the same as when an employee Chain Restaurants, and the National an employee’s health care provider and returns from a block of leave. For Coalition to Protect Family Leave, ‘‘to delay the employee’s return to work example, the United States Postal suggested that the Department should pending receipt of a second opinion if Service stated: delete or revise this section of the the employer has a reasonable basis to regulations so that employers would believe that the employee may not be Exempting chronic conditions from return have the same right to seek fitness for able to safely return to work and to work clearance seems to make little sense duty certifications from employees perform all the essential functions of the because those conditions are just as likely as any other to compromise the health or safety returning to work from intermittent job.’’ The Department is proposing no of the workforce. Indeed, some chronic leave as they do for block leave. changes in this area, but requests further conditions are even more likely to give rise Hinshaw & Culbertson LLP suggested comments on these issues. to a justifiable need for return to work The Department proposes no changes that fitness-for-duty certifications clearance than the other serious health ‘‘could be regulated to prevent abuse by to current paragraph (d) of this section, conditions under the FMLA. For example, an which explains who bears the cost of employer may have little concern about the the employer by limiting such the fitness-for-duty certification. Under clerical assistant returning to work after statements to certain time frames, such both the current and proposed giving birth, but far more (and legitimate) as once a quarter. It could also be based regulations, the employee is responsible concern about allowing a utility worker to on the frequency of the intermittent for the cost of obtaining a fitness-for- return after a series of epileptic seizures on leave; the more frequent the leave, the duty certification. the job. more frequent the statement.’’ Current paragraph (e) of this section Honda similarly stated that, ‘‘[i]n However, numerous commenters explains that advance notice of the need manufacturing, many of the jobs include representing employees vigorously to provide a fitness-for-duty certification safety-sensitive duties. Therefore, the supported the existing regulation. The must be given when an employee goes current regulation prohibiting a fitness- National Partnership for Women & out on leave. It also requires that if an for-duty form for intermittent leaves Families commented that requiring

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employees returning from intermittent significant safety risks that can exist was ‘‘delayed’’ is not FMLA-protected. leave to provide fitness for duty when some employees return from To make sure both employees and certifications—which are at the intermittent leave absences indicate that employers understand the intended employee’s expense—would the current regulation does not meaning of this provision, the significantly undermine the statutory appropriately address those concerns. Department proposes to amend the purpose behind allowing employees to Therefore, the Department proposes that wording to state that the employer may take intermittent leave. It stated that an employer be permitted to require an ‘‘deny FMLA coverage’’ for the period at ‘‘[a]ny benefit to the employer of employee to furnish a fitness-for-duty issue. This proposed language ensures obtaining fitness for duty statements certificate every 30 days if an employee that there is no misunderstanding as to from intermittent leave-takers is far has used intermittent leave during that the impact of the ultimate failure to outstripped by the unwarranted burden period and reasonable safety concerns provide a medical certification in a that such a change in the regulations exist. For example, if an employee is out timely manner, but substantively this is would impose on employees. * * * The periodically for high blood pressure, not a change from the current intermittent leave option helps to take and the employee operates heavy regulation. See current § 825.312(b) (‘‘If some of the financial strain off equipment as part of the employee’s the employee never produces the employees by enabling them to continue essential functions, an employer may certification, the leave is not FMLA earning a paycheck while addressing have reason to get certification that the leave.’’); see also Sherman & Howard serious health or family needs, and employee can perform the essential LLC (‘‘The regulations should make allows employees to preserve as much functions of the job. The employer may clear that if an employee does not of the twelve weeks of leave as not terminate the employment of the ultimately qualify for FMLA leave, or possible.’’ The American Federation of employee while awaiting such a fails to provide medical certification to Teachers, Local 2026, stated that certification of fitness for duty for an support the requested leave, the ‘‘[t]here is no reason to disturb the intermittent or reduced schedule leave employee’s absence will be unprotected. current rule barring employers from absence. The Department is cognizant of This means that the employer may requesting fitness for duty statements the potential burdens on employees appropriately enforce its attendance from workers who take intermittent who may need to provide both a policy which may result in disciplinary leave.’’ The AFL–CIO noted that recertification and a fitness-for-duty action being taken against the ‘‘[r]equiring employees who take certificate within a short period of time. employee.’’). Proposed paragraph (a) is intermittent leave to present fitness for The Department specifically seeks titled ‘‘[f]oreseeable leave.’’ Current duty certifications for potentially every comment on ways to minimize this § 825.311(b) contains similar language absence is burdensome and burden and asks whether this proposal to current paragraph (a) with regard to unnecessary.’’ The Pennsylvania Social strikes the appropriate balance. unforeseeable leave. The Department Services Union, SEIU 668, concurred, Current paragraph (h) of this section proposes language similar to that stating that there is no reason to disturb would be deleted to avoid redundancy. proposed in paragraph (a), to be titled the current rule. Kennedy Reeve & Knoll This paragraph, which provides an ‘‘[u]nforeseeable leave,’’ in proposed commented that ‘‘the logistical explanation as to the repayment of § 825.311(b). Section 825.311(b) is impossibility and financial burdens of health insurance premiums if the proposed to be reworded for purposes of allowing employers to require fitness- employee is unable to return to work as clarity, but no other substantive changes a result of a continuation of a serious for-duty statements for each and every have been made. The Department health condition, is duplicative of the day of absence make such a policy not proposes a new paragraph (c), to be provisions set forth in § 825.213. The feasible.’’ The National Business Group titled ‘‘[r]ecertification,’’ that addresses last sentence of current § 825.310(h), on Health also stated that ‘‘[i]t would be the consequences of failing to provide a which explains who bears the cost of an administrative headache to require a timely recertification when requested by the certification in such circumstances, fitness for duty statement from an the employer. The proposed regulations is moved to proposed § 825.213(a)(3). employee who is absent intermittently. provide that if a recertification is not provided within 15 days of the request, The added paperwork to cover this Section 825.311 (Failure to provide or as soon as practicable, the employer would be overly burdensome.’’ The medical certification) may deny the continuation of the FMLA Indiana State Personnel Department, Current § 825.311(a) provides that, in leave protections until the Employee Relations Division, also the case of foreseeable leave, if an recertification is provided. Former recognized that the burden of providing employee fails to provide medical paragraph (c) is moved to proposed fitness for duty certifications after every certification in a timely manner, the paragraph (d) but no changes have been intermittent absence would be employer may delay the taking of FMLA made in the requirement to provide significant for employees and health leave until it has been provided. In medical certification that an employee care providers, but beneficial to response to the RFI, Foley & Lardner is fit for duty and able to return to work employers. In an attempt to address the LLP noted that the regulation ‘‘does not when seeking reinstatement following cost concern, the United Parcel Service explain how long the delay may last or FMLA leave for a serious health suggested that employers bear the cost what the consequences of a ’delay’ can condition. of fitness for duty certifications when be.’’ The Department agrees and the employee is returning from proposes to explain more clearly the Section 825.312 (When can an employer intermittent leave. implications of an employee’s failure to refuse reinstatement) The Department believes, as the provide the medical certification in a Current § 825.312(a) through (f) comments from employee timely manner. Currently, the regulation address when an employer can delay or representatives assert, that it would be states that an employer may ‘‘delay the deny FMLA leave to an employee, or unduly burdensome on employees to taking of FMLA leave.’’ If the employee deny reinstatement after FMLA leave, have to provide a fitness-for-duty takes leave without timely providing a when an employee fails to timely certificate for each intermittent leave sufficient medical certification for provide the required notifications and absence. However, the numerous foreseeable leave, then any leave during certifications set forth in the regulations. employer comments addressing the the time period that the certification As these sections are duplicative of

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other regulatory sections, they have notification obligations,’’ the Existing paragraph (g) would become been deleted from the proposed rule. Department would appropriately proposed paragraph (h) in this section. Current paragraphs (g) and (h) of respond to Ragsdale. The National Proposed paragraph (g) incorporates a § 825.312, which address the fraudulent Partnership for Women & Families discussion of the interaction between use of leave and outside employment, stated that while the Supreme Court the Uniformed Services Employment have been renumbered as § 825.216(d) struck down the ‘‘categorical penalty’’ and Reemployment Rights Act of 1994 and (e), which also deal with limitations in the current regulations, it left intact (USERRA) and the FMLA. The current on reinstatement, but no substantive the requirement that employers regulations contain no such reference, changes have been made. designate leave, and it ‘‘did not prohibit and the interaction between these two DOL from imposing any penalties on laws has been confusing to employees Sections 825.400 through 825.600 employers for failing to properly and employers alike. On July 22, 2002, No changes are proposed in designate and notify employee about the Department issued guidance stating §§ 825.400 through 825.600 other than leave’’ (emphasis in original). (Related that, based upon the reinstatement to the titles of the sections and very comments from both employer and rights provided by USERRA, an minor editorial changes (adding a employee representatives addressing employee is entitled to credit for FMLA reference to the Department’s website in possible changes to the notice and eligibility purposes for the months and proposed § 825.401(a), updating the designation of leave requirements are hours that the employee would have reference in proposed § 825.500(c)(4) to addressed in the preamble discussing worked during the 12 months preceding the new employer eligibility notice changes to § 825.208.) the start of the leave but for his or her requirement proposed in § 825.300(b), In light of these comments, the qualifying active duty uniformed and deleting a cross-reference in Department proposes to delete the last service. See http://www.dol.gov/vets/ proposed section 825.601(b)). sentence from paragraph (a) of this media/fmlarights.pdf. This guidance has section struck down by Ragsdale. Other been incorporated into paragraph (g) of Subpart G—Effect of Other Laws, than this change required by the Court’s the proposed regulations. The only Employer Practices, and Collective decision, the Department proposes no other change the Department is Bargaining Agreements on Employee changes to current paragraph (a). proposing is to conform the cross- Rights Under FMLA The Department proposes no changes reference in paragraph (d)(2) to the Section 825.700 (Interaction with to current § 825.700(b), which provides proper paragraph in proposed § 825.207. employer’s policies) that an employer may amend existing The Department received numerous leave programs, so long as they comply comments in response to the RFI that Current § 825.700(a) provides that an with the FMLA, and that nothing in the discussed the relationship between the employer may not diminish the rights Act is intended to discourage employers FMLA and the ADA. Many of those established by the FMLA through an from adopting or retaining more comments were discussed in Chapter employment benefit program or plan, generous leave policies. VII of the Department’s 2007 Report on but that an employer may provide The Department proposes to delete the RFI comments (see 72 FR at 35599), greater leave rights than the FMLA § 825.700(c)(1) and (2) from the current and other sections of this preamble requires. As noted previously, the U.S. regulations, as they discuss the initial address comments that are relevant to Supreme Court in Ragsdale invalidated applicability of the statute and periods those sections (see, e.g., §§ 825.306– the last sentence of current § 825.700(a), of employment prior to the statute’s .307). The Department also received which states that if an employee takes effective date, which are no longer comments regarding the interaction paid or unpaid leave and the employer necessary. between the FMLA and the ADA that does not designate the leave as FMLA Section 825.702 (Interaction with are relevant to the job modification, leave, the leave taken does not count light duty, and reassignment issues Federal and State anti-discrimination against an employee’s FMLA addressed in this section. laws) entitlement. A number of organizations A number of commenters responding Current § 825.702 addresses the commented on the differences between to the RFI addressed the effect of interaction between the FMLA and the FMLA’s and ADA’s treatment of Ragsdale. For example, the National other Federal and State anti- light duty work. Sections 825.702(d)(2) Coalition to Protect Family Leave stated discrimination laws. Current paragraph and 825.220(d) of the FMLA regulations that § 825.700(a) should be removed (a) confirms that the FMLA and other provide that an employee may from the regulations. The Air Transport Federal or State laws are wholly distinct voluntarily accept a ‘‘light duty’’ Association of America, Inc. and the and must be complied with assignment while recovering from a Airline Industrial Relations Conference independently. Paragraphs (b), (c), (d) serious health condition, but cannot be suggested that the regulations should be and (e) primarily focus on the coerced to do so. Under the ADA, an revised in light of Ragsdale, because interaction between the FMLA and the employer does not have to create a light employers do not know which Americans with Disabilities Act (ADA), duty position for an individual with a regulations they must follow and which particularly with regard to leave rights, disability but, if a vacant, light duty are no longer valid, and employees who job modification, light duty, position already exists, the employer read them also are confused about reassignment, and reinstatement. must reassign the individual with a which regulations their employers must Paragraph (f) focuses on the interaction disability to the position if there is no follow. The Association of Corporate of the FMLA with Title VII of the Civil other effective accommodation available Counsel similarly suggested that Rights Act of 1964, as amended by the and the reassignment would not pose an § 825.700(a) should be deleted to clarify Pregnancy Discrimination Act, and undue hardship. See EEOC, Workers’ that an employer’s failure to timely paragraph (g) states that the U.S. Equal Compensation Guidance, at Questions designate leave does not increase the Employment Opportunity Commission 27 and 28. In addition, if the only statutory leave period. Hewitt can provide further information on Title effective accommodation available is Associates LLC commented that ‘‘by VII and the ADA. similar or equivalent to a light duty deleting the ‘penalty’ provision and The Department proposes to add a position, an employer must provide that simply reinforcing employer new paragraph (g) in this section. accommodation, absent undue

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hardship. See EEOC, Workers’ accommodation that would pose an business. Undue hardship is defined as Compensation Guidance, at Question ‘‘undue hardship’’ on the operation of an action requiring significant difficulty 27. the employer’s business. Neither the or expense when considered in light of The Department also received FMLA regulations nor the statute limits factors such as an employer’s size, comments regarding the differing the availability of FMLA leave to financial resources, and the nature and standards under the FMLA and the ADA situations where the employee’s absence structure of its operation. Reasonable for transferring or reassigning does not impose an ‘‘undue hardship’’ accommodation may include adapting employees to alternative positions. The on the employer. existing facilities, job restructuring, FMLA permits an employer to Although the Department received modifying work schedules, acquiring or temporarily transfer an employee who many comments seeking greater modifying equipment or devices, or needs foreseeable intermittent or consistency between the FMLA and the adjusting or modifying policies. reduced schedule leave for planned ADA, the Department can do nothing to Reasonable accommodation can include medical treatment to an alternative alter the fact that the two statutes serve reassignment to a vacant equivalent position; however, the position must distinctly different purposes, provide position, if available, or to a lesser have equivalent pay and benefits. The different rights, and have different position if an equivalent one is position also must be one for which the eligibility criteria. Moreover, the FMLA unavailable or causes undue hardship. employee is qualified and which better legislative history clearly states that the An employer must provide an effective accommodates recurring periods of ‘‘purpose of the FMLA is to make leave reasonable accommodation that does leave. Under the ADA, part-time work available to eligible employees and not pose an undue hardship, but need or occasional time-off may be a employers within its coverage, and not not provide the employee’s preferred reasonable accommodation. As a general to limit already existing rights and accommodation. matter, reassignment is the protection,’’ and it specifically Generally, an individual with a accommodation of last resort under the recognizes that ‘‘the leave provisions of disability (or his or her representative) ADA. However, if or when an the [FMLA] are wholly distinct from the must notify the employer of a request employee’s need for part-time work or reasonable accommodation obligations for reasonable accommodation. An reduced hours in his or her current of employers covered under the [ADA].’’ individual may use ‘‘plain English’’ and position creates an undue hardship for S. Rep. No. 103–3, at 38 (1993). the request need not be in writing or an employer, the employer must transfer Therefore, the Department proposes no mention the ADA or the phrase the employee to a vacant, equivalent changes to this section (other than the position for which the employee is addition of a new section addressing ‘‘reasonable accommodation.’’ Instead, qualified, unless doing so would present USERRA and the changed internal an individual must let the employer an undue hardship for the employer. If cross-reference, as described know that he or she needs an an equivalent position is not available, previously). However, the Department adjustment or change at work for a the employer must look for a vacant believes that both employees and reason related to a medical condition. position at a lower level. Further employers would benefit from a better After receiving a request for reasonable accommodation is not required if a understanding of the interaction accommodation, an employer and the lower level position is also unavailable. between the ADA and FMLA, and individual with a disability should See EEOC, Fact Sheet: ‘‘The Family and provides the following additional engage in an informal, ‘‘interactive Medical Leave Act, the Americans with description of that interaction. process’’ to clarify what the individual Disabilities Act, and Title VII of the Although the FMLA adopts the ADA needs and identify the appropriate Civil Rights Act of 1964’’ (hereafter definition of ‘‘essential functions,’’ an reasonable accommodation. See 29 CFR ‘‘EEOC FMLA and ADA Fact Sheet’’), at FMLA ‘‘serious health condition’’ is not pt. 1630 app. § 1630.9. As part of this Question 13. Under the ADA, employers necessarily an ADA ‘‘disability.’’ An ‘‘interactive process,’’ the employer may who place employees in lower level ADA ‘‘disability’’ is an impairment that ask the individual relevant questions positions are not required to maintain substantially limits one or more major that will enable it to make an informed the employee’s salary at the level of the life activities, a record of such an decision about the request. This higher grade, unless the employer does impairment, or being regarded as having includes asking what type of reasonable so for other employees. See EEOC such an impairment. 42 U.S.C. 12102(2). accommodation is needed. When the Technical Assistance Manual § 3.10.5. Some FMLA ‘‘serious health disability and/or the need for Commenters also focused on the conditions’’ may be ADA disabilities, accommodation is not obvious, the differences between the FMLA and the for example, most cancers and serious employer may ask the individual for ADA with regard to the use of leave. strokes and some chronic conditions. reasonable documentation about his or Under current § 825.115, an eligible Other ‘‘serious health conditions’’ may her disability and functional limitations. employee may use leave ‘‘where the not be ADA disabilities, for example, See ‘‘EEOC Enforcement Guidance: health care provider finds that the pregnancy or a routine broken leg or Reasonable Accommodation and Undue employee is unable to work at all or is hernia. This is because the condition is Hardship Under the Americans with unable to perform any one of the not an impairment (e.g., normal Disabilities Act,’’ revised Oct. 17, 2002, essential functions of the employee’s pregnancy), or because the impairment at Questions 1, 3, 5, and 6. This is position.’’ Other provisions of the is not substantially limiting (e.g., a similar to the rule under the FMLA (see FMLA allow an employee to take leave routine broken leg or hernia). See EEOC § 825.302), where an employee need not intermittently or on a reduced schedule. FMLA and ADA Fact Sheet, at Question assert his or her rights under the FMLA See 29 U.S.C. 2612(b); 29 CFR 825.203– 9. or even mention the FMLA to put the .205. Under the ADA, an employee is Under the ADA, an employer is employer on notice of the need for entitled to reasonable accommodation, required to make a reasonable FMLA leave, but must provide sufficient including medical leave, only if he or accommodation to the known physical information to an employer so that the she has an impairment that or mental limitations of an otherwise employer is aware that FMLA rights ‘‘substantially limits’’ one or more major qualified employee with a disability if it may be at issue. The proposed rule life activities. Moreover, an employer is would not impose an ‘‘undue hardship’’ states that sufficient information not required to provide any on the operation of the employer’s includes information that indicates that

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the employee is unable to perform the EEOC FMLA and ADA Fact Sheet, at active duty or has been notified of an functions of the job, the anticipated Question 13. impending call to active duty status in duration of the absence, and whether Under the ADA, an employer must support of a contingency operation the employee intends to visit a health continue health insurance coverage for (collectively referred to herein as the care provider. Once the employer is put an employee taking leave or working military family leave provisions of H.R. on notice of a FMLA leave request, the part-time only if the employer also 4986). The provisions of H.R. 4986 regulations specify what information provides coverage for other employees providing FMLA leave to care for a must be exchanged between the in the same leave or part-time status. covered servicemember became employee and employer, rather than The coverage must be on the same terms effective on January 28, 2008, when the them engaging in an informal, normally provided to those in the same law was enacted. The provisions of H.R. ‘‘interactive’’ process. leave or part-time status. See EEOC 4986 providing for FMLA leave due to Unpaid leave is a potential reasonable FMLA and ADA Fact Sheet, at Question a qualifying exigency arising out of a accommodation that an employer might 15. Under the FMLA, an employer must covered family member’s active duty (or need to provide to an otherwise maintain the employee’s existing level call to active duty) status are not qualified individual with a disability, of coverage (including family or effective until the Secretary of Labor unless (or until) it imposes an undue dependent coverage) under a group issues regulations defining ‘‘qualifying hardship on the operation of the health plan during the period of FMLA exigencies.’’ Because a significant employer’s business. See 29 CFR pt. leave, provided the employee pays his number of United States military 1630 app. § 1630.2(o). An otherwise or her share of the premiums. 29 CFR servicemembers are currently on active qualified individual with a disability 825.209–.210. An employer may not duty or call to active duty status, the may be entitled to additional unpaid discriminate against an employee using Department is fully aware of the need to leave as a reasonable accommodation FMLA leave, and therefore must also issue regulations under the military under the ADA, beyond the 12 weeks of provide such an employee with the family leave provisions of H.R. 4986 as unpaid leave available under the FMLA, same benefits (e.g., life or disability soon as possible. Towards that end, the if the additional leave would not impose insurance) normally provided to an Department began preliminary an undue hardship on the operation of employee in the same leave or part-time consultations with the Departments of the employer’s business. Generally, status. 29 CFR 825.220(c). Defense and Veterans Affairs and the unpaid leave is explored as a reasonable Under the ADA, an employer and U.S. Office of Personnel Management accommodation only after examining, employee may agree to a transfer, on (which will administer similar through the interactive process, whether either a temporary or a permanent basis, provisions regarding leave to care for a reasonable accommodations can be if both parties believe that such a covered servicemember for most Federal made to the employee’s job to keep the transfer is preferable to accommodating employees) prior to the passage of H.R. employee at work. No set amount of the employee in his or her current 4986. leave is required as a reasonable position. Note that a qualified As it did in the initial notice of accommodation under the ADA. The individual with a disability who is proposed rulemaking under the FMLA existence of the FMLA does not mean using FMLA leave to work reduced in 1993, 58 FR 13394 (Mar. 10, 1993), that more than 12 weeks of unpaid leave hours, and/or has been temporarily and in the interest of ensuring the automatically imposes an undue transferred into another job under the expedient publication of regulations, the hardship for purposes of the ADA. To FMLA, may also need a reasonable Department is including in this Notice evaluate whether additional leave accommodation (e.g., special a description of the relevant military would impose an undue hardship, the equipment) to perform an essential family leave statutory provisions, a employer may consider the impact on function of the job. See 29 CFR discussion of issues the Department has its operations caused by the employee’s 825.204(b). identified, and a series of questions initial 12-week absence, along with the seeking comment on subjects and issues undue hardship factors specified in the Section 825.800 (Definitions) that may be considered in the final ADA and its regulations found at 29 Current § 825.800 contains the regulations. 5 U.S.C. 553(b)(3) (notice of CFR 1630.2(p). See EEOC FMLA and definitions of significant terms used in proposed rulemaking shall include ADA Fact Sheet. the regulations. Changes to definitions ‘‘either the terms or substance of the Under the ADA, a qualified that were affected by the Department’s proposed rule or a description of the individual with a disability may work proposed changes and clarifications subjects and issues involved’’). Because part-time in his or her current position, have been made. Specifically, changes of the need to issue regulations as soon or occasionally take time off, as a and clarifications have been made to the as possible so that employees and reasonable accommodation if it would terms ‘‘continuing treatment,’’ ‘‘eligible employers are aware of their respective not impose an undue hardship on the employee,’’ ‘‘employee,’’ ‘‘health care rights and obligations regarding military employer. If (or when) reduced hours provider,’’ ‘‘serious health condition,’’ family leave under the FMLA, the create an undue hardship in the current ‘‘parent,’’ and ‘‘son or daughter.’’ Department anticipates that the next position, the employer must see if there step in the rulemaking process, after full Family Leave in Connection With is another effective accommodation or if consideration of the comments received Injured Members of the Armed Forces there is a vacant, equivalent position for in response to this Notice, will be the and Qualifying Exigencies Related to which the employee is qualified and to issuance of final regulations. which the employee can be reassigned Active Duty The Department strongly encourages without undue hardship while working Section 585(a) of H.R. 4986, the the submission of any comments or a reduced schedule. If an equivalent National Defense Authorization Act for concerns which should be considered in position is not available, the employer FY 2008, amends the FMLA to provide the course of developing the final must look for a vacant position at a leave to eligible employees of covered regulations. Commenters are encouraged lower level for which the employee is employers to care for covered to identify any issues related to military qualified. Continued accommodation is servicemembers and because of any family leave they believe need to be not required if a vacant position at a qualifying exigency arising out of the addressed—even if the Department has lower level is also unavailable. See fact that a covered family member is on not identified such issues—and to offer

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their views, with supporting rationale, ‘‘Contingency operation’’ is defined definition does not require further as to how such issues should be by the military family leave provisions clarification, and is considering addressed by the Department. of H.R. 4986 as a military operation including it in proposed FMLA Commenters also are invited to submit designated by the Secretary of Defense regulatory § 825.800 as currently drafted data relating to the economic impact of as provided under 10 U.S.C. 101(a)(13). in Section 585(a)(1) of H.R. 4986. the FMLA provisions in H.R. 4986. The This definition will be codified in the ‘‘Next of kin’’ is defined by the Department will undertake to FMLA at 29 U.S.C. 2611(15). The military family leave provisions of H.R. implement the new military family Department believes that the 4986 as the ‘‘nearest blood relative’’ of leave provisions so as to maximize the Department of Defense’s definition of an individual. This definition will be benefits and minimize the burdens on ‘‘contingency operation’’ found in Title codified in the FMLA at 29 U.S.C. both employees and employers 10 does not require further clarification; 2611(18). The Department is consulting consistent with the purposes of the therefore, the Department is considering with the Department of Defense FMLA. including a definition of ‘‘contingency regarding this definition. Preliminary operations’’ in proposed FMLA information suggests that, for Summary of the Military Family Leave regulatory § 825.800 as currently disposition of remains, personal effects Provisions and Regulatory Issues defined in Section 585(a)(1) of H.R. and the release of records, the The FMLA amendments in Section 4986, and cross-referencing 10 U.S.C. Department of Defense generally 585(a) of H.R. 4986 are summarized 101(a)(13). considers the following individuals below. In addition to creating new leave ‘‘Covered servicemember’’ is defined ‘‘next of kin’’ of a servicemember in the entitlements, the FMLA provisions of by the military family leave provisions following order: (1) Unremarried H.R. 4986 include conforming of H.R. 4986 as a member of the Armed surviving spouse; (2) natural and amendments to incorporate the new Forces (including National Guard or adopted children; (3) parents; (4) leave entitlements into the current Reserves) ‘‘who is undergoing medical remarried surviving spouses (except FMLA statutory provisions relating to treatment, recuperation, or therapy, is those who obtained a divorce from the the use of leave and to add certain new otherwise in outpatient status, or is servicemember or who remarried before terms to the FMLA’s statutory otherwise on the temporary disability a finding of death by the military); (4) definitions. The FMLA amendments in retired list, for a serious injury or blood or adoptive relatives who have H.R. 4986 raise a number of issues about illness.’’ This definition will be codified been granted legal custody of the which the Department seeks comment. in the FMLA at 29 U.S.C. 2611(16). The servicemember by court decree or Although specific issues for public Department believes that determining statutory provisions; (5) brothers or comment are listed below after the whether a member of the Armed Forces sisters; (6) grandparents; (7) other discussion of each FMLA statutory is in outpatient status or is otherwise on relatives of legal age in order of amendment in H.R. 4986, commenters the temporary disability retired list for relationship to the individual according are encouraged to identify any issues a serious illness or injury is likely to be to civil laws; and (8) persons standing relatively straightforward. There may be in loco parentis to the servicemember. they believe need to be addressed. issues, however, regarding what it The Department seeks comments on Section 101—Definitions means for a servicemember to be whether it should adopt the above list ‘‘undergoing medical treatment, of next of kin for purposes of the The military family leave provisions recuperation, or therapy’’ for a serious military family leave provisions. The of H.R. 4986 add certain new terms to illness or injury. The Department’s Department also seeks comments on the FMLA’s definitions. The Department initial view is that any treatment, whether a definition of ‘‘next of kin’’ is considering adding these definitions recuperation, or therapy provided to a that relies on differing State law to proposed FMLA regulatory § 825.800 servicemember for a serious injury or interpretations is appropriate, and as follows: illness, and not just that provided by the whether a certification of ‘‘next of kin’’ The term ‘‘Active duty’’ is defined by Armed Forces, should be covered. The status should be required. If such a H.R. 4986 as duty under a call or order Department solicits public comments on certification is required, the Department to active duty under a provision of law this issue. Should there be a temporal seeks comments on who should issue referred to in 10 U.S.C. 101(a)(13)(B). proximity requirement between the such a certification, and its contents. This definition will be codified in the covered servicemember’s injury or The Department also seeks public FMLA at 29 U.S.C. 2611(14). The illness and the treatment, recuperation, comments on the requirement in the Department believes that the or therapy for which care is required? military family leave provisions of H.R. Department of Defense is in the best Should the Department rely on a 4986 that the next of kin be the position to determine when a determination made by the Department ‘‘nearest’’ blood relative. Should the servicemember has been called to active of Defense as to whether a Department interpret this provision to duty. Title 10 provides extensive servicemember is undergoing medical mean that each covered servicemember information regarding a treatment, recuperation, or therapy for a may only have one next of kin who is servicemember’s active duty or call to serious injury or illness? eligible to take FMLA leave to provide active duty status, the terms of which, ‘‘Outpatient status’’ for a covered care if the servicemember is undergoing as noted in H.R. 4986, are referenced in servicemember is defined by the medical treatment, recuperation, or Section 101(a)(13)(B) of that Title. military family leave provisions of H.R. therapy, is otherwise in outpatient Accordingly, the Department believes 4986 as the status of a member of the status, or is otherwise on the temporary that the definition of ‘‘active duty’’ in Armed Forces assigned to (a) a medical disability retired list, for a serious the military family leave provisions of treatment facility as an outpatient or (b) illness or injury? The Department seeks H.R. 4986 does not require further a unit established to provide command comments on how to determine if an clarification and is considering adding it and control of members of the Armed employee is the nearest blood relative of to proposed FMLA regulatory § 825.800 Forces receiving medical care as a covered servicemember when a as currently defined in H.R. 4986, and outpatients. This definition will be servicemember has several relatives of cross-referencing 10 U.S.C. codified in the FMLA at 29 U.S.C. close consanguinity still alive, and 101(a)(13)(B). 2611(17). The Department believes this whether this language could be

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interpreted to provide military caregiver would one determine whether the injury [W]hat this legislation does is allow family leave to any eligible next of kin of a or illness renders, or may render, the members of our brave men and women covered servicemember. If the nearest servicemember medically unfit to serving in the Guard and Reserve to use blood relative of a covered perform the duties of the member’s Family and Medical Leave Act time to see off, to see the deployment, or to see the servicemember is unable or unwilling to office, grade, rank, or rating, when the members return when they come back, and provide care, should the next nearest servicemember is no longer serving in to use that, importantly, to deal with blood relative of the covered the military? economic issues, and get the household servicemember be eligible to take FMLA The military family leave provisions economics in order * * * leave to care for the wounded of H.R. 4986 appear to rely on certain It will allow military families to use family servicemember? The Department also of the FMLA’s existing definitions (e.g., and medical leave time to manage issues such as childcare and financial planning that seeks comments on whether it would be ‘‘parent’’, ‘‘son or daughter’’, and appropriate to permit a covered arise as a result of the deployment of an ‘‘spouse’’). Although H.R. 4986 does not immediate family member. servicemember to designate any blood change these definitions, the legislative relative, or other individuals such as history includes statements by members 153 Cong. Rec. H5258 (daily ed. May 16, those recognized by the Department of of Congress that suggest that the term 2007); 153 Cong. Rec. H15325 (daily ed. Defense as the servicemember’s ‘‘son or daughter’’ should be given a Dec. 12, 2007); 153 Cong. Rec. H15349 Committed And Designated broader meaning under the military (daily ed. Dec. 12, 2007) (statements of Representative (CADRE), as next of kin family leave provisions to include adult Representative Altmire). for purposes of FMLA leave taken to children. As discussed in greater detail In addition to Representative care for the servicemember. below, the Department seeks comment Altmire’s statements, in remarks on the ‘‘Serious injury or illness’’ in the case on whether it would be appropriate to Floor, Representative Tom Udall stated: of members of the Armed Forces, define some of these terms differently For every soldier who is deployed National Guard, or Reserves is defined for purposes of leave taken because of overseas, there is a family back home faced by the military family leave provisions a qualifying exigency or to care for a with new and challenging hardships. The toll of H.R. 4986 as ‘‘an injury or illness covered servicemember under the extends beyond emotional stress. From incurred by the member in line of duty military family leave provisions of H.R. raising a child to managing household finances to day-to-day events, families have on active duty in the Armed Forces that 4986. to find the time and resources to deal with may render the member medically unfit Section 102(a)—Leave Entitlement the absence of a loved one. * * * The to perform the duties of the member’s Altmire-Udall amendment would allow office, grade, rank, or rating.’’ This The military family leave provisions spouses, parents or children of military definition will be codified in the FMLA of H.R. 4986 add a new qualifying personnel to use Family and Medical Leave at 29 U.S.C. 2611(19). The Department reason to take FMLA leave: ‘‘[b]ecause Act benefits for issues related directly to the believes that the Departments of Defense of any qualifying exigency (as the deployment of a soldier. Current FMLA or Veterans Affairs are likely in the best benefits allow individuals to take time off for Secretary shall, by regulation, the birth of a child or to care for a family position to provide the standard for determine) arising out of the fact that member with a serious illness. The what constitutes a ‘‘serious illness or the spouse, or a son, daughter, or parent deployment of a soldier is no less of a crisis injury’’ that may ‘‘render the member of the employee is on active duty (or has and certainly puts new demands on families. medically unfit to perform the duties of been notified of an impending call or We should ensure that the FMLA benefits the member’s office, grade, rank, or order to active duty) in the Armed given in other circumstances are provided to rating.’’ Preliminary information Forces in support of a contingency our fighting families during their time of suggests that the military branches operation.’’ This provision will be need. already regularly provide, when codified in the FMLA at 29 U.S.C. 153 Cong. Rec. E1076 (daily ed. May 17, requested, a medical certification to 2612(a)(1)(E) and, by its terms, is not 2007) (statement of Representative family members of covered operative until the Secretary of Labor Udall). servicemembers certifying that the determines, by regulation, the qualifying Finally, Representative George Miller member is seriously injured or ill and is exigencies that will entitle an eligible stated that: actively receiving medical treatment. employee to take FMLA leave. The Department seeks comments on Under the amendment * * * a worker can Representative Jason Altmire, who take family and medical leave to deal with whether a certification from the introduced this provision, made the the issues that arise as a result of a spouse, Departments of Defense or Veterans following three statements on the House parent, or child’s deployment to a combat Affairs should be sufficient to establish Floor regarding leave taken for a zone like Iraq or Afghanistan. Under this whether a servicemember has a serious qualifying exigency: amendment family members can use the injury or illness that was incurred by leave to take care of issues like making legal the member in the line of duty while on This amendment allows the immediate and financial arrangements and making child family of military personnel to use Family active duty status in the Armed Forces, care arrangements or other family obligations Medical Leave Act time for issues directly that arise and double when family members as well as on other approaches to arising from deployment and extended determining whether a servicemember are on active duty deployments * * * These deployments. The wife of a recently deployments and extended tours are not easy has an injury or illness that may render deployed military servicemember could use on families, and two-parent households can a servicemember medically unfit. The the Family and Medical Leave Act to arrange suddenly become a single-parent household Department also seeks comments on for childcare. The husband of a and one parent is left alone to deal with whether H.R. 4986 permits eligible servicemember could use the Family Medical paying the bills, going to the bank, picking employees to take military caregiver Leave Act to attend predeployment briefings up the kids from school, watching the kids, leave under FMLA to care for a and family support sessions. The parents of providing emotional support to the rest of the a deployed servicemember could take Family servicemember whose serious injury or family. You have got to deal with these Medical Leave Act time to see their raised predeployment preparations. illness was incurred in the line of duty child off or welcome them back home. This but does not manifest itself until after amendment does not expand eligibility to 153 Cong. Rec. H5336 (daily ed. May 17, the servicemember has left military employees not already covered by the Family 2007) (statement of Representative service. In such circumstances, how Medical Leave Act * * * Miller).

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Given the statements above and Additionally, should such a list be a per disability. One alternative would be for Webster’s Dictionary definition of se list of qualified exigencies? the Department to define ‘‘next of kin’’ ‘‘exigency’’ as ‘‘the quality or state of Although Representative Altmire’s as including children of covered requiring immediate aid or action, or a statements suggest that a parent of an servicemembers. The Department could state of affairs that makes urgent adult son or daughter should be then define the term ‘‘children’’ more demands,’’ how should the Department permitted to take FMLA leave for a expansively than the term ‘‘son or define qualifying exigencies for qualifying exigency arising out of the daughter’’ is currently defined in the purposes of the military family leave deployment of the son or daughter, the FMLA to allow adult children of provisions of H.R. 4986? Should military family leave provisions of H.R. covered servicemembers to take FMLA qualifying exigencies be limited to those 4986 do not alter the current FMLA leave to care for a covered items of an urgent or one-time nature definition of ‘‘son or daughter.’’ Under servicemember. Alternatively, the arising from deployment as opposed to this definition, a son or daughter must Department could define the term ‘‘son routine, everyday life occurrences? The either be (1) under the age of 18 or (2) or daughter of a covered 18 years of age or older and incapable military family leave provisions of H.R. servicemember’’ differently than the of self-care because of a mental or 4986 would allow leave for any term ‘‘son or daughter.’’ The Department physical disability. 29 U.S.C. 2611(12). ‘‘qualifying’’ exigency arising out of the seeks comments on these approaches, The Department recognizes that whether these approaches are allowed fact that the spouse, son, daughter, or applying this definition of ‘‘son or parent of an eligible employee is on by the military family leave provisions daughter’’ to leave taken because of a of H.R. 4986, and whether it is active duty (or has been notified of an qualifying exigency would mean parents impending call or order to active duty) appropriate to define the term ‘‘son or would only be able to take FMLA leave daughter’’ differently for purposes of in support of a contingency operation. because of a qualifying exigency if their Because the statute uses the word FMLA leave taken to care for a covered son or daughter is under the age of 18 servicemember. ‘‘qualifying’’, it is the Department’s or older than age 18 and incapable of Second, the military family leave initial view that not every exigency self-care because of a mental or physical provisions of H.R. 4986 provide that necessarily will entitle a military family disability. By Federal law, however, the leave to care for a covered member to leave. It also is the minimum age for enlistment in the servicemember shall only be available Department’s initial view that there United States Military is 17 (with ‘‘during a single 12-month period.’’ The must be some nexus between the parental consent). 10 U.S.C. 505. eligible employee’s need for leave and Moreover, children over the age of 18 amendments do not specify whether the servicemember’s active duty status. who are incapable of self-care are that 12-month period should be The Department solicits comments on unlikely to be found medically qualified calculated from the date of the the degree of nexus required to to perform military duties. Therefore, servicemember’s injury, the date of the demonstrate that the exigency arises out the Department seeks comments on determination that the servicemember has a serious injury or illness, the first of the servicemember’s active duty whether it would be appropriate, given date on which an eligible employee is status. In light of the fact that this new the language of H.R. 4986, to define the needed to care for a seriously injured entitlement to leave would be in term ‘‘son or daughter’’ differently for servicemember, or on some other basis. addition to the existing qualifying purposes of FMLA leave taken because Current and proposed § 825.200 of the reasons for FMLA leave, which already of a qualifying exigency. The military family leave provisions FMLA regulations permits an employer permit an eligible employee to take to choose any of the following methods FMLA leave to care for a son or of H.R. 4986 also establish an additional leave entitlement that permits an ‘‘an when determining the 12-month period daughter, parent, or spouse with a in which the current 12 weeks of FMLA serious health condition, the eligible employee who is the spouse, son, daughter, parent, or next of kin of leave entitlement occurs: (1) The Department’s initial view is that leave calendar year; (2) any fixed 12-month for qualifying exigencies should be a covered servicemember’’ to ‘‘a total of 26 workweeks of leave during a 12- ‘‘leave year,’’ such as a fiscal year, a year limited to non-medical related month period to care for the required by State law, or a year starting exigencies, as suggested by servicemember.’’ This provision will be on an employee’s anniversary date; (3) Representative Altmire’s statements. codified in the FMLA at 29 U.S.C. the 12-month period measured forward The Department seeks comment on 2612(a)(3). A number of issues regarding from the date any employee’s first these issues and on whether it would be the application of this new FMLA leave FMLA leave begins; or, (4) a ‘‘rolling’’ appropriate to develop a list of pre- entitlement are discussed below. The 12-month period measured backward deployment, deployment, and post- Department invites comments on these, from the date an employee uses any deployment qualifying exigencies. If so, and any other issues, related to the FMLA leave. The Department seeks should the following types of exigencies provision of FMLA leave to care for a comments on how the ‘‘single 12-month qualify: making arrangements for child covered servicemember. period’’ should be measured for care; making financial and legal First, as with leave taken for a purposes of determining entitlement to arrangements to address the qualifying exigency, the military leave to care for a covered servicemember’s absence; attending caregiver provision of H.R. 4986 does servicemember. For example, should an counseling related to the active duty of not alter the current FMLA definition of employer be permitted to choose a the servicemember; attending official ‘‘son or daughter’’ for purposes of method when determining the 12-month ceremonies or programs where the defining who is eligible to take leave to period in which the 26 workweeks of participation of the family member is care for a covered servicemember. Thus, leave entitlement to care for a covered requested by the military; attending to the only sons or daughters who will be servicemember occurs, as is the case for farewell or arrival arrangements for a eligible to take FMLA leave to care for other types of FMLA-qualifying leave? servicemember; and attending to affairs a seriously injured servicemember will What distinctions should the caused by the missing status or death of be those who are under the age of 18 or Department draw between calculating a servicemember? Are there other types age 18 or older and incapable of self- the 12-month period for leave to care for of exigencies that should qualify? care because of a mental or physical a covered servicemember and the other

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qualifying reasons for FMLA leave? The employee. This interpretation would reduced leave schedule when medically Department also seeks comments on permit each eligible employee to take 26 necessary. Eligible employees also are how to reconcile this single 12-month workweeks of leave during any single permitted to take FMLA leave for a period to the employer’s regular FMLA 12-month period, but would not entitle qualifying exigency intermittently or on leave year, if different 12-month periods that employee to any additional periods a reduced leave schedule. These are used. of military family leave to care for the provisions will be codified in the FMLA Third, the military family leave same or other covered servicemembers at 29 U.S.C. 2612(b)(1). The military provisions of H.R. 4986 provide that the while still employed by the same family leave provisions of H.R. 4986 eligible employee is entitled to a total of covered employer. In this circumstance, also permit an employer to require an 26 workweeks of leave during a single does the 12-month limitation continue employee taking FMLA leave to care for 12-month period to care for a covered to apply to the employee in the event he a covered servicemember who is servicemember. Is the 26 workweek or she goes to work for a different undergoing planned treatment to leave entitlement to care for a covered employer? Under any of these examples, temporarily transfer to an available servicemember a one-time entitlement should an employee be permitted to alternative position with equivalent pay or may an employee have multiple take more than 26 workweeks of leave and benefits that better accommodates entitlements? The FMLA currently during a single 12-month period? The recurring periods of intermittent leave provides that an eligible employee is Department seeks comments on these or leave on a reduced leave schedule. entitled to a total of 12 workweeks of and any other options relating to how This is the case currently for FMLA leave during the relevant 12-month this provision should be interpreted. leave taken for planned medical period. The 12 workweeks of leave may Fourth, because leave to care for a treatment due to the employee’s own be taken for any qualifying FMLA covered servicemember with a serious serious health condition or the serious reason until the leave is exhausted in illness or injury may, in some health condition of a spouse, son, the relevant 12-month period. Assuming circumstances, also qualify as leave to daughter, or parent. The military family the employee continues to meet the care for a spouse, parent, or child with leave provisions of H.R. 4986 do not eligibility requirements, the employee a serious health condition, the specifically provide for such temporary may take leave again (up to 12 weeks) Department seeks comments on how transfers when FMLA leave is taken for for any qualifying FMLA reason in a such leave should be designated. In a qualifying exigency. The Department new leave year. The Department seeks particular, the Department seeks seeks comment on whether it would be comments on whether a similar comments on whether the employee or appropriate to permit temporary approach to leave taken to care for a employer should be able to select transfers when FMLA leave is taken on covered servicemember would be whether the leave is counted as FMLA an intermittent or reduced leave appropriate even though the leave leave taken to care for a covered schedule basis for a qualifying exigency. entitlement to care for a covered servicemember or FMLA leave taken to The Department also seeks comment on servicemember is limited to a ‘‘single care for a spouse, parent or child with how H.R. 4986’s provisions regarding 12-month period’’ under the military a serious health condition. The leave taken intermittently or on a family leave provisions of H.R. 4986. Department also seeks comments on reduced leave schedule should be Given the statutory language of H.R. whether an initial designation of this incorporated into proposed FMLA 4986, can the 26 workweek leave leave as one type of FMLA leave may be regulatory § 825.202, which generally entitlement be interpreted to apply per changed retroactively in any explains the taking of FMLA leave covered servicemember, i.e., each circumstances. intermittently or on a reduced leave eligible employee may take 26 Finally, the military family leave schedule, and proposed FMLA workweeks of leave to care for each provisions of H.R. 4986 provide for a regulatory § 825.204, which covers covered servicemember? Under this combined total of 26 workweeks of temporary transfers. reading, an eligible employee would be FMLA leave for an eligible employee permitted to take 26 workweeks of leave who takes leave to care for a covered Section 102(d)—Relationship to Paid to care for his or her spouse who is a servicemember as well as leave for other Leave covered servicemember in a 12-month FMLA-qualifying reasons during the The military family leave provisions period, and could take another 26 applicable 12-month period. The of H.R. 4986 amend the statutory workweeks of leave to care for his or her military family leave provisions of H.R. provisions for substitution of paid leave parent who is a covered servicemember 4986 do not limit the availability of to include the new FMLA leave in another 12-month period. Could an leave to an eligible employee for other entitlements. These amendments will be employee take leave to care for both a FMLA-qualifying reasons during any codified in the FMLA at 29 U.S.C. spouse and a child who are covered other 12-month period. These 2612(d). Under the military family leave servicemembers in the same 12-month provisions will be codified in the FMLA provisions of H.R. 4986, an eligible period? Alternatively, could the 26 at 29 U.S.C. 2612(a)(4). How should employee may elect, or an employer workweek leave entitlement be these provisions be implemented if may require, that an employee calculated per injury of a covered different methods are used to calculate substitute any accrued paid vacation servicemember, such that an eligible the 12-month period for leave taken to leave, personal leave, or family leave for employee may take 26 workweeks of care for a covered servicemember versus unpaid FMLA leave taken because of a leave during a single 12-month period to leave for other FMLA-qualifying qualifying exigency. In addition, the provide care to a covered reasons? military family leave provisions of H.R. servicemember and then may take 4986 permit an eligible employee to another 26 workweeks of leave during a Section 102(b)—Requirements Relating elect, or an employer to require, that an different 12-month period to provide to Leave Taken Intermittently or on a employee substitute any accrued paid care to the same covered servicemember Reduced Leave Schedule vacation leave, personal leave, family who is experiencing a second serious The military family leave provisions leave, or medical or sick leave for injury or illness? The 26 workweek of H.R. 4986 allow eligible employees to unpaid FMLA leave taken to care for a leave entitlement also may be viewed as take FMLA leave to care for a covered covered servicemember. The a one-time entitlement to each eligible servicemember intermittently or on a Department is considering how to

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incorporate the military family leave employee taking FMLA leave to care for Department seeks comments on the type provisions into proposed FMLA a covered servicemember generally of information an employee should regulatory § 825.207, which addresses would be expected to provide the provide to the employer in order for the the substitution of paid leave for unpaid employer at least 30 days advance notice to be sufficient to make the FMLA leave. Because that section as notice before FMLA leave is to begin employer aware that the employee’s currently proposed in this NPRM refers when the need for the leave is need is FMLA-qualifying. generally to the substitution of paid foreseeable based on planned medical These changes also will likely require leave for unpaid FMLA leave, the treatment for the covered that the Department make conforming Department does not believe that servicemember. If 30 days notice is not changes to proposed FMLA regulatory specific reference to the new types of practicable, such as because of a lack of § 825.301(b), which generally addresses leave entitlement is required. The knowledge of approximately when leave employee responsibilities to provide Department also seeks comments on will be required to begin, a change in notice of the need for FMLA leave. The alternative approaches relating to circumstances, a medical emergency, or exact nature of the changes will depend substitution of paid leave for military because the leave is unforeseeable, on whether the same notice standards family leave provided under H.R. 4986. notice must be given as soon as are applied to all qualifying reasons for FMLA leave. The Department believes Section 102(e)—Employee Notice practicable under the particular facts and circumstances. The Department that the general notice principles set The military family leave provisions seeks comments on whether it should forth in proposed FMLA regulatory of H.R. 4986 extend to the new leave incorporate leave to care for a covered § 825.301 should apply to all qualifying provision related to care for a servicemember into the notice reasons for FMLA leave. The public is servicemember the FMLA’s existing provisions of proposed FMLA invited, however, to comment on this requirements for employees to provide regulatory §§ 825.302 and 825.303. The issue and provide alternative views. advance notice when the need for leave Department also is considering applying Section 102(f)—Leave Entitlements for is foreseeable based on planned medical the requirements in proposed FMLA treatment, and for making reasonable Spouses Employed by the Same regulatory §§ 825.302(c) and 825.303(b), Employer efforts to schedule planned medical which require that the employee Under the military family leave treatment so as not to disrupt unduly provide at least verbal notice sufficient provisions of H.R. 4986, an employer the employer’s operations. The military to make the employer aware that the may limit the aggregate amount of leave family leave provisions of H.R. 4986 employee needs FMLA-qualifying leave also provide for new notice to which eligible spouses employed by and provide information regarding the requirements for leave taken due to the same employer may be entitled in anticipated timing and duration of the qualifying exigencies whenever the some circumstances. H.R. 4986 provides leave, to the taking of FMLA leave to need for such leave is foreseeable. The that a husband and wife employed by care for a covered servicemember. military family leave provisions of H.R. the same employer are limited to a Finally, the Department requests 4986 require that eligible employees combined total of 26 workweeks of comments on whether proposed FMLA provide notice to the employer that is leave during the relevant 12-month regulatory §§ 825.203 and 825.302(e), ‘‘reasonable and practicable’’ in these period if the leave taken is to care for which address an employee’s obligation circumstances. These amendments will a covered servicemember or a to make a reasonable effort to schedule be codified in the FMLA at 29 U.S.C. combination of leave taken to care for a 2612(e)(2) and (e)(3). foreseeable leave for planned medical covered servicemember and leave for Under the proposed FMLA treatment so as not to disrupt unduly the birth or placement of a healthy child regulations in this NPRM, an employee the employer’s operations, should or to care for a parent with a serious must generally provide the employer at specifically reference the requirement in health condition. This provision does least 30 days advance notice before H.R. 4986 that servicemember family not alter the existing 12-week limitation FMLA leave is to begin if the need for leave that is foreseeable based on that applies to leave taken by a husband the leave is foreseeable based on an planned medical treatment be and wife employed by the same expected birth, placement for adoption scheduled in the same manner. employer for leave for the birth or or foster care, or planned medical The military family leave provisions placement of a healthy child or to care treatment for a serious health condition of H.R. 4986 provide that an employee for a parent with a serious health of the employee or of a family member. taking leave due to a qualifying condition (e.g., a husband and wife If 30 days notice is not practicable, such exigency provide ‘‘such notice to the employed by the same employer could as because of a lack of knowledge of employer as is reasonable and is take no more than a combined total of approximately when leave will be practicable.’’ The Department’s initial 12 weeks of FMLA leave for the birth or required to begin, a change in view is that the notice requirements in placement of a healthy child in a 12- circumstances, a medical emergency, or proposed FMLA regulatory §§ 825.302 month period, even if the husband and because the leave is unforeseeable, and 825.303 also should be applied to wife combined took fewer than 14 notice must be given as soon as leave taken due to qualifying exigencies. weeks of leave to care for a covered practicable under the particular facts If different notice requirements should servicemember, in that same period). and circumstances. For a further be used, the Department seeks These provisions will be codified in the discussion of the employee notice comments on what should be required. FMLA at 29 U.S.C. 2612(f). How should requirements proposed in this NPRM, For example, should the notice timing the Department incorporate the same see the preamble discussion of proposed requirements for leave taken due to employer limitation of the military FMLA regulatory §§ 825.302 and qualifying exigencies distinguish family leave provisions of H.R. 4986 825.303. between foreseeable leave and into the regulatory scheme proposed in The Department’s initial view is that unforeseeable leave, as proposed FMLA this NPRM? The Department these same notice requirements should regulatory §§ 825.302 and 825.303 do? specifically seeks comments on how be extended to leave taken to care for a Additionally, leave taken because of a H.R. 4986’s limitation on spouses covered servicemember. If the same qualifying exigency may not involve a employed by the same employer would notice requirements were adopted, an medical condition; therefore, the interact with FMLA’s existing limitation

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on spouses employed by the same office, grade, rank, or rating. In light of there should be different timing employer if different 12-month periods this, the Department seeks comments on requirements that an employee must are used to determine eligibility for the appropriate certification follow when providing such leave taken to care for a covered requirements for military caregiver certification. Likewise, should the servicemember and other FMLA- leave, including whether it would be content of a sufficient medical qualifying leave. appropriate to interpret FMLA’s certification be different when it is Conforming regulatory changes likely statutory certification requirements required to support a leave request to will be required to proposed FMLA differently for purposes of leave taken to care for a covered servicemember? regulatory § 825.120(a)(3), which care for a covered servicemember. Should the clarification, authentication, discusses the applicability of the same Furthermore, FMLA currently and second and third opinion employer limit to FMLA leave taken for provides that an employer may request provisions of proposed FMLA pregnancy or birth; proposed FMLA a medical certification issued by the regulatory § 825.307 and the regulatory § 825.121(a)(3), applying the health care provider of the employee’s recertification provisions in proposed same employer limit to FMLA leave son, daughter, spouse, or parent in order FMLA regulatory § 825.308 be applied taken for adoption or foster care; and to support a request for FMLA leave to to certifications supporting FMLA leave proposed FMLA regulatory § 825.201(b), care for a spouse, parent, or child with taken to care for a covered which discusses the same employer a serious health condition. 29 U.S.C. servicemember, and, if so, how? limit in the context of FMLA leave taken 2613. Although the leave entitlement The military family leave provisions to care for a parent with a serious health provisions of H.R. 4986 permit an of H.R. 4986 also permit the Secretary condition. The Department requests eligible employee who is the next of kin of Labor to prescribe a new certification comments on how these sections should of a covered servicemember to take requirement for leave taken because of be changed to incorporate the same military family leave, H.R. 4986’s a qualifying exigency arising out of a employer limit in the military family certification requirements appear to servicemember’s active duty or call to leave provisions of H.R. 4986. permit an employer to obtain active duty. The Department is certification issued by the health care Section 103—Certification considering how to implement such a provider of the employee’s next of kin, requirement and seeks comments on the The military family leave provisions rather than the covered servicemember. following specific issues: of H.R. 4986 allow employers to apply The Department believes that an the FMLA’s existing medical (A) What type of information should employer should only be able to obtain be provided in a certification related to certification requirements for serious a certification from the health care health conditions to leave taken to care active duty or call to active duty status provider or military branch of the in order for it to be considered complete for a covered servicemember. In covered servicemember for whom the and sufficient? Should the certification addition, the military family leave eligible employee is caring. The merely require confirmation of the provisions of H.R. 4986 provide for a Department seeks comment on whether covered servicemember’s active duty new certification related to leave taken it is appropriate to interpret the military status? because of a qualifying exigency. Under family leave provisions of H.R. 4986 in (B) Who may issue a certification the military family leave provisions of this manner when a medical related to active duty or call to active H.R. 4986, an employer may require that certification is sought for leave taken by leave taken because of a qualifying an eligible employee who is the next of duty status? Should anyone other than exigency be ‘‘supported by a kin of a covered servicemember. the Department of Defense provide a certification issued at such time and in The Department is considering certification of the covered such manner as the Secretary may by whether a medical certification to servicemember’s active duty or call to regulation prescribe.’’ These provisions support leave taken to care for a covered active duty status? will be codified in the FMLA at 29 servicemember issued by the (C) The Department’s initial view is U.S.C. 2613. Departments of Defense or Veterans that an employee also must provide The military family leave provisions Affairs would, in all cases, eliminate the certification that an absence(s) is due to of H.R. 4986 amend FMLA’s current need to both define a sufficient medical a qualifying exigency. Because the certification requirements to permit an certification for purposes of taking leave military family leave provisions of H.R. employer to request that leave taken to to care for a covered servicemember and 4986 require that the qualifying care for a covered servicemember be develop a clarification, authentication, exigency arise out of the covered supported by a medical certification. validation, and recertification process servicemember’s active duty or call to FMLA’s current certification for leave taken for this purpose. The active duty status in support of a requirements, however, focus on Department also seeks comment on contingency operation, should any providing information related to a whether, and how, to incorporate the required certification specify that the serious health condition—a term that is new certification requirement for leave requested leave is a qualifying exigency not relevant to leave taken to care for a taken to care for a covered or that it arises out of the covered covered servicemember. At the same servicemember into proposed FMLA servicemember’s active duty or call to time, the military family leave regulatory § 825.305, which describes active duty status in support of a provisions of H.R. 4986 do not explicitly the general rule applicable to FMLA contingency operation? require that a sufficient certification for medical certifications; and proposed (D) Should an employee seeking purposes of military caregiver leave FMLA regulatory § 825.306, which FMLA leave due to a qualifying provide relevant information regarding addresses the required content of a exigency provide certification of the the covered servicemember’s serious FMLA medical certification. In light of qualifying exigency by statement or injury or illness, such as whether the the fact that many of the certifications affidavit? Who else might certify that a injury was incurred by the member in supporting leave taken to care for a particular request for FMLA leave is the line of duty while on active duty in covered servicemember may be issued because of a qualifying exigency? the Armed Forces, or whether the injury by the Departments of Defense or (E) Should the certification may render the member medically unfit Veterans Affairs, the Department requirements for leave taken because of to perform the duties of the member’s specifically seeks comment on whether a qualifying exigency vary depending on

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the nature of the qualifying exigency for leave taken to care for a covered result of an employer’s violation of one which leave is being taken? servicemember. At the same time, the or more of the provisions of FMLA up (F) What timing requirements should military family leave provisions of H.R. to a total of 12 weeks of wages. In order be applied to certifications related to 4986 do not explicitly address whether to reflect that the leave provisions leave taken because of a qualifying an employer may recover premiums relating to care for a covered exigency? paid when an employee fails to return servicemember provide up to 26 weeks (G) Who should bear the cost, if any, to work because of the continuation, of leave, the Department anticipates of obtaining certifications related to recurrence, or onset of a serious injury changing FMLA regulatory § 825.400(c) leave taken because of a qualifying or illness of the covered servicemember. to provide that, in a case involving a exigency? Likewise, the military family leave violation of the military family leave (H) Should an employer be permitted provisions of H.R. 4986 do not provisions, an employee is entitled to to clarify, authenticate, or validate an specifically provide that an employer actual monetary losses sustained up to active duty or call to active duty may obtain a certification regarding the a total of 26 weeks of wages. The certification? Likewise, should an continuation, recurrence, or onset of the Department does not believe that further employer be permitted to clarify, servicemember’s serious injury or changes to the FMLA regulatory authenticate, or validate a certification illness if an employee does not return to provisions on enforcement are required that a particular event is a qualifying work after taking FMLA leave to care for in order to implement the military exigency? If so, what limitations, if any, a covered servicemember. In light of family leave provisions of H.R. 4986. should be imposed on an employer’s this, the Department seeks comments on The Department invites the public to ability to seek such clarification, how to appropriately implement these comment on this and any other authentication, or validation for both provisions of H.R. 4986. enforcement provisions that they types of certifications? The Department is considering believe may need to be revised. (I) Should a recertification process be revisions to proposed FMLA regulatory established for certifications related to § 825.213(a) to incorporate these new Section 108—Instructional Employees leave taken because of a qualifying requirements. The Department believes The military family leave provisions exigency? If so, how would that process that proposed FMLA regulatory of H.R. 4986 also extend the entitlement compare to the current FMLA § 825.213(a)(1) will need to be changed to take FMLA leave to care for a covered recertification process? in order to address an employee’s servicemember and because of a Section 104(c)—Maintenance of Health failure to return to work after taking qualifying exigency to eligible Benefits leave to care for a covered instructional employees of local servicemember. Proposed FMLA educational agencies. In order to Under the FMLA, an employer must regulatory § 825.213(a)(3) also will need implement this revision, H.R. 4986 maintain group health insurance to be changed to provide that an contains three statutory changes to the coverage for an eligible employee on employer may require an employee to FMLA, which will be codified in FMLA leave on the same terms as if the provide a certification issued by the subsections (c)(1), (d)(2), and (d)(3) of 29 employee continued to work. 29 U.S.C. health care provider of the covered U.S.C. 2618, and apply the current 2614(c). When an eligible employee servicemember being cared for by the FMLA rules regarding the taking of takes qualifying leave to care for a employee. The Department requests intermittent leave or leave on a reduced covered servicemember and fails to comments on how the requirements in leave schedule, or leave near the end of return from leave after the period of H.R. 4986 should be incorporated into an academic term, by employees of local leave entitlement has expired, under the these proposed FMLA regulatory educational agencies to certain leave FMLA amendments in H.R. 4986, the provisions, and whether any additional taken to care for a covered employer may recover the premiums guidance may be required on this topic. servicemember by these same paid for maintaining the employee’s employees. The Department believes group health plan coverage during any Section 107—Enforcement that three related regulatory changes are period of unpaid leave if the employee The military family leave provisions required to incorporate these provisions fails to return to work for a reason other of H.R. 4986 provide for conforming of H.R. 4986 into the FMLA regulatory than the continuation, recurrence, or amendments to the FMLA to include the scheme proposed in this NPRM, which onset of a serious health condition that new leave entitlements in the FMLA’s other than changes to titles and very entitles the employee to leave or other statutory enforcement scheme. These minor editorial changes is the same as circumstances beyond the control of the provisions will be codified in the FMLA the instructional employee provisions in employee. In addition, the military at 29 U.S.C. 2617 and amend FMLA’s the current FMLA regulations. family leave provisions of H.R. 4986 damages provision to provide for the First, the military family leave provide that an employer may require recovery of damages equal to any actual provisions of H.R. 4986 provide that an an employee to support a claim that he monetary losses sustained by the employer covered by 29 U.S.C. 2618 or she did not return to work after employee up to a total of 26 weeks could require that, in the case of an taking military caregiver leave because (rather than the current 12 weeks) in a instructional employee who requests of the continuation, recurrence, or onset case involving leave to care for a FMLA leave intermittently or on a of a serious health condition with a covered servicemember in which wages, reduced leave schedule for foreseeable certification issued by the health care salary, employment benefits or other planned medical treatment of a covered provider of the servicemember being compensation have not been denied or servicemember and who, as a result, cared for by the employee. These lost to the employee. will be on leave for greater than 20 provisions will be codified in the FMLA The Department believes that a percent of the total number of working at 29 U.S.C. 2614(c)(2)–(3). similar revision is required to FMLA days during the period of leave, the These new requirements focus on regulatory § 825.400(c). That regulatory employee choose to either (1) take leave whether an employee does not return to provision currently and as proposed in for a period or periods of particular work because of the continuation, this NPRM provides that an employee is duration; or (2) transfer temporarily to recurrence, or onset of a serious health entitled to actual monetary losses an available alternative position with condition—a term that is not relevant to sustained by an employee as a direct equivalent pay and benefits that better

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accommodates recurring periods of an instructional employee to continue on how these notices should be revised leave. In order to incorporate this taking leave until the end of the term in order to incorporate these new FMLA change, the Department believes a where the employee begins leave which leave entitlements. minor technical revision is required to will last more than five working days for The Department seeks public current and proposed FMLA regulatory a purpose other than the employee’s comment on whether there are § 825.601(a)(1) to provide that the own serious health condition during the additional regulatory sections that provisions of that section apply when three-week period before the end of the should be reexamined in light of the an eligible instructional employee needs term. military family leave provisions of H.R. intermittent leave or leave on a reduced The Department invites comments on 4986. The questions set forth above are schedule to care for a covered whether additional revisions are not intended to be an exhaustive list of servicemember, in addition to applying required to the regulatory provisions issues that might arise when FMLA to situations where the employee takes governing local educational institutions leave is taken to care for a covered such leave to care for a family member in light of the military family leave servicemember or because of a or for the employee’s own serious health provisions of H.R. 4986. qualifying exigency. The Department encourages the public to identify any condition. In all three cases, the Incorporation of New FMLA Leave other issues which should be provision would continue to apply only Entitlements Into Proposed FMLA considered during the rulemaking to intermittent leave or leave on a Regulatory Scheme reduced leave schedule which is process. In addition to the issues discussed foreseeable based on planned medical Paperwork Reduction Act treatment and requires the employee to above, the Department specifically be on leave for more than 20 percent of requests comments on whether the In accordance with requirements of FMLA leave entitlements in H.R. 4986 the Paperwork Reduction Act (PRA), 44 the total number of working days over should generally be incorporated into U.S.C. 3501 et seq., and its attendant the period the leave would extend. the FMLA regulatory scheme proposed regulations, 5 CFR part 1320, the DOL Second, the military family leave in this NPRM, or whether stand-alone seeks to minimize the paperwork provisions of H.R. 4986 extend some of regulatory sections should be created for burden for individuals, small the limitations on leave near the end of one or both of the military family leave businesses, educational and nonprofit an academic term to leave requested provisions of H.R. 4986. The institutions, Federal contractors, State, during this period to care for a covered Department seeks comments on which local and tribal governments, and other servicemember. The Department of these approaches would be most persons resulting from the collection of believes that several FMLA regulatory beneficial for employees and employers. information by or for the agency. The sections will need to be changed in Although not specified in the military PRA typically requires an agency to order to apply the limitations on leave family leave provisions of H.R. 4986, the provide notice and seek public near the end of an academic term to Department believes that a number of comments on any proposed collection of military family leave. Current and additional conforming changes may be information contained in a proposed proposed FMLA regulatory required to the proposed FMLA rule. See 44 U.S.C. 3506(c)(2)(B); 5 CFR § 825.602(a)(2) provides that, where an regulations in this NPRM in order to 1320.8. Persons are not required to instructional employee begins leave for fully integrate the military family leave respond to the information collection a purpose other than the employee’s provisions into FMLA’s regulatory requirements as contained in this own serious health condition during the scheme. For example, proposed FMLA proposal unless and until they are five-week period before the end of the regulatory § 825.100 may need to be approved by the OMB under the PRA at term, the employer may require the changed to incorporate a discussion of the final rule stage. employee to continue taking leave until the new leave entitlements into the This ‘‘paperwork burden’’ analysis the end of the term if the leave will last general description of what the FMLA estimates the burdens for the proposed more than two weeks and the employee provides. Similarly, proposed FMLA regulations as drafted. In addition and would return to work during the two- regulatory § 825.112(a), which provides as already discussed, the military family week period before the end of the term. the general rule regarding the leave provisions of H.R. 4986 amend the Because the military family leave circumstances that will qualify for FMLA to provide leave to eligible provisions of H.R. 4986 only extend this leave, may need to be changed to employees of covered employers to care limitation on leave near the end of an reference the two qualifying reasons for for covered servicemembers and academic term to leave taken to care for FMLA leave in H.R. 4986. because of any qualifying exigency a covered servicemember, and not leave The Department also plans on arising out of the fact that a covered taken because of a qualifying exigency, changing the proposed poster and family member is on active duty or has the Department believes that this FMLA general notice to incorporate the been notified of an impending call to regulatory section may need to be military family leave provisions of H.R. active duty status in support of a changed in order to specifically 4986. The Department’s initial view is contingency operation. The new reference the types of leave that are that these new qualifying reasons for statutory provisions will be codified at subject to the limitation: (1) Leave FMLA leave should be incorporated into 29 U.S.C. 2612(e)(2) and (e)(3). The because of the birth of a son or daughter, the poster and general notice discussed earlier preamble discussion on Family (2) leave because of the placement of a in proposed FMLA regulatory Leave in Connection with Injured son or daughter for adoption or foster § 825.300(a). However, the Department Members of the Armed Forces and care, (3) leave taken to care for a spouse, seeks comments on whether a separate Qualifying Exigencies Related to Active parent, or child with a serious health poster and general notice should be Duty provides a fuller explanation of the condition, and (4) leave taken to care for created for military family leave. The specific provisions and issues on which a covered servicemember. A similar proposed eligibility and designation the Department seeks public comments. revision also may be required to FMLA notices in FMLA regulatory § 825.300(b) Because of the need to issue regulations regulatory § 825.602(a)(3), which and (c) also will need to incorporate as soon as possible so that employees currently and as proposed in this NPRM appropriate references to military family and employers are aware of the provides that an employer may require leave. The Department seeks comments respective rights and obligations

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regarding military family leave under activities (e.g., in compiling and with its usual and customary notice and the FMLA, the Department anticipates maintaining business records). 5 CFR procedural requirements for requesting issuing, after full consideration of the 1320.3(b)(2). The PRIA, however, must leave. comments received in response to this consider the economic impact of any B. Notice to Employee of FMLA Notice, final regulations that will changes in the proposed regulation. Eligibility [29 CFR 825.219 and include necessary revisions to the Circumstances Necessitating 825.300(b)]. When an employee requests currently proposed FMLA information Collection: The FMLA requires private FMLA leave or when the employer collections. sector employers of 50 or more acquires knowledge that an employee’s As will be more fully explained later, employees and public agencies to leave may be for an FMLA-qualifying many of the estimates in the analysis of provide up to 12 weeks of unpaid, job- condition, the employer must notify the the ‘‘paperwork’’ requirements derive protected leave during any 12-month employee within five business days of from data developed for the Preliminary period to ‘‘eligible’’ employees for the employee’s eligibility to take FMLA Regulatory Impact Analysis (PRIA) certain family and medical reasons (i.e., leave and any additional requirements under E.O. 12866. However, the specific for birth of a son or daughter, and to for qualifying for such leave. This needs that the PRA analysis and PRIA care for the newborn child; for eligibility notice must provide are intended to meet often require that placement with the employee of a son information regarding the employee’s the data undergo a different analysis to or daughter for adoption or foster care; eligibility for FMLA leave, detail the estimate the burdens imposed by the to care for the employee’s spouse, son, specific responsibilities of the daughter, or parent with a serious health employee, and explain any ‘‘paperwork’’ requirements from the condition; and because of a serious consequences of a failure to meet these analysis used in estimating the effect the health condition that makes the responsibilities. The employer generally regulations will have on the economy. employee unable to perform the must provide the notice the first time in Consequently, the differing treatment functions of the employee’s job). FMLA each six-month period that an employee that must be undertaken in the PRA section 404 requires the Secretary of gives notice of the need for FMLA leave; analysis and the PRIA may result in Labor to prescribe such regulations as however, if the specific information different results. For example, the PRA necessary to enforce this Act. 29 U.S.C. provided by the notice changes with analysis measures the total burden of 2654. The proposed regulations provide respect to a subsequent period of FMLA the information collection; however, the for the following information leave, the employer would need to PRIA measures the incremental changes collections, many of which are third- provide an updated notice. expected to result from the proposed party notifications between employers C. Medical Certification and regulatory changes. Thus, the PRA and employees. Recertification [29 U.S.C. 2613, analysis will calculate a paperwork A. Employee Notice of Need for 2614(c)(3); 29 CFR 825.100(d) and burden for an information collection FMLA Leave [29 U.S.C. 2612(e); 29 CFR 825.305 through 825.308]. An employer that remains unchanged from the 825.100(d), 825.301(b), 825.302, and may require that an employee’s leave to current regulation and the PRIA will not 825.303]. An employee must provide care for the employee’s seriously-ill consider that item. Conversely, the the employer at least 30 days’ advance spouse, son, daughter, or parent, or due regulatory definition for ‘‘collection of notice before FMLA leave is to begin if to the employee’s own serious health information’’ for PRA purposes the need for the leave is foreseeable condition that makes the employee specifically excludes the public based on an expected birth, placement unable to perform one or more essential disclosure of information originally for adoption or foster care, or planned functions of the employee’s position, be supplied by the Federal government to medical treatment for a serious health supported by a certification issued by the recipient for the purpose of condition of the employee or of a family the health care provider of the eligible disclosure to the public. 5 CFR member. If 30 days’ notice is not employee or of the ill family member. 1320.3(c)(2). The PRIA, however, may practicable, such as because of a lack of The proposal provides that the need to consider the impact of any knowledge of approximately when leave employer may contact the employee’s regulatory changes in such notifications will be required to begin, a change in health care provider for purposes of provided by the government. For circumstances, or a medical emergency, clarification and authentication of the example, in the context of the proposed notice must be given as soon as medical certification (whether initial FMLA changes, the general notice that practicable under the facts and certification or recertification) after the employers currently must develop and circumstances of the particular case. In employer has given the employee an provide to their workers is proposed to neither case must an employee opportunity to cure any deficiencies. In be replaced with a notice using wording expressly assert rights under the FMLA addition, an employer must advise an provided by the DOL that employers or even mention the FMLA. The employee whenever it finds a must periodically provide to their employee must, however, provide certification incomplete or insufficient employees. This proposed DOL- information that indicates that a and state in writing what additional provided FMLA notice would not be a condition renders the employee unable information is necessary to make the ‘‘collection of information’’ for PRA to perform the functions of the job, or certification complete and sufficient. An purposes; therefore, the proposal if the leave is for a family member, that employer, at its own expense and reduces burden for PRA purposes. The the condition renders the family subject to certain limitations, also may PRIA, however, must address the member unable to perform daily require an employee to obtain a second economic impact of the frequency with activities; the anticipated duration of and third medical opinion. In addition, which employers must provide the the absence; and whether the employee an employer may also request DOL’s FMLA notice under the proposed or the employee’s family member recertification under certain conditions. change to the regulations. Finally, the intends to visit a health care provider or The employer must provide the PRA definition of ‘‘burden’’ can exclude has a condition for which the employee employee at least 15 calendar days to the time, effort, and financial resources or the employee’s family member is provide the initial certification and any necessary to comply with a collection of under the continuing care of a health subsequent recertification. The information that would be incurred by care provider. An employer, generally, proposed regulations would provide persons in the normal course of their may require an employee to comply that the employer must provide seven

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calendar days (unless not practicable which the 12-week entitlement occurs facts at that time. If the employer under the particular circumstances for purposes of FMLA leave. An determines that substantial and grievous despite the employee’s diligent good employer wishing to change to another economic injury will result from faith efforts) to cure any deficiency alternative is required to give at least 60 reinstating the employee, the employer identified by the employer. days’ notice to all employees. must notify the employee in writing (in D. Notice to Employees of FMLA G. Key Employee Notification [29 person or by certified mail) of the denial Designation [29 CFR 825.300(c) and U.S.C. 2614(b)(1)(B); 29 CFR 825.219 of restoration. 825.301(a)]. When the employer has and 825.300(b)(3)(vi)]. An employer that H. Periodic Employee Status Reports enough information to determine believes that it may deny reinstatement [29 CFR 825.300(b)(4) and 825.309]. An whether the leave qualifies as FMLA to a key employee must give written employer may require an employee to leave (after receiving a medical notice to the employee at the time the provide periodic reports regarding the certification, for example), the employer employee gives notice of the need for employee’s status and intent to return to must notify the employee within five FMLA leave (or when FMLA leave work. business days of making such commences, if earlier) that he or she I. Notice to Employee of Pending determination whether the leave has or qualifies as a key employee. At the same Cancellation of Health Benefits [29 CFR has not been designated as FMLA leave time, the employer must also fully 825.212(a)]. Unless an employer and the number of hours, days or weeks inform the employee of the potential establishes a policy providing a longer that will be counted against the consequences with respect to grace period, an employer’s obligation employee’s FMLA leave entitlement. If reinstatement and maintenance of to maintain health insurance coverage it is not possible to provide the hours, health benefits if the employer should ceases under FMLA if an employee’s days or weeks that will be counted determine that substantial and grievous premium payment is more than 30 days against the employee’s FMLA leave economic injury to the employer’s late. In order to drop the coverage for an entitlement (such as in the case of operations would result if the employer employee whose premium payment is unforeseeable intermittent leave), then were to reinstate the employee from late, the employer must provide written such information must be provided FMLA leave. If the employer cannot notice to the employee that the payment every 30 days to the employee if leave immediately give such notice, because has not been received. Such notice must is taken during the prior 30-day period. of the need to determine whether the be mailed to the employee at least 15 If the employer requires paid leave to be employee is a key employee, the days before coverage is to cease and substituted for unpaid leave, or that employer must give the notice as soon advise the employee that coverage will paid leave taken under an existing leave as practicable after receiving the be dropped on a specified date at least plan be counted as FMLA leave, this employee’s notice of a need for leave (or 15 days after the date of the letter unless designation also must be made at the the commencement of leave, if earlier). the payment has been received by that time of the FMLA designation. If an employer fails to provide such date. E. Fitness-for-Duty Medical timely notice it loses its right to deny J. Documenting Family Relationship Certification [29 U.S.C. 2614(a)(4); 29 restoration, even if substantial and [29 CFR 825.122(f)]. An employer may CFR 825.100(d) and 825.310]. As a grievous economic injury will result require an employee giving notice of the condition of restoring an employee from reinstatement. need for leave to provide reasonable whose FMLA leave was occasioned by As soon as an employer makes a good documentation or statement of family the employee’s own serious health faith determination—based on the facts relationship. This documentation may condition that made the employee available—that substantial and grievous take the form of a child’s birth unable to perform the employee’s job, economic injury to its operations will certificate, a court document, a sworn an employer may have a uniformly- result if a key employee who has given notarized statement, a submitted or applied policy or practice that requires notice of the need for FMLA leave or is signed tax return, etc. The employer is all similarly-situated employees (i.e., using FMLA leave is reinstated, the entitled to examine documentation such same occupation, same serious health employer must notify the employee in as a birth certificate, etc., but the condition) who take leave for such writing of its determination; that the employee is entitled to the return of the conditions to obtain and present employer cannot deny FMLA leave; and official document submitted for this certification from the employee’s health that the employer intends to deny purpose. care provider that the employee is able restoration to employment on K. Recordkeeping [29 U.S.C. 2616; 29 to resume work. The employee has the completion of the FMLA leave. The CFR 825.500]. The FMLA provides that same obligations to participate and employer must serve this notice either employers shall make, keep, and cooperate in providing a complete and in person or by certified mail. This preserve records pertaining to the FMLA sufficient certification to the employer notice must explain the basis for the in accordance with the recordkeeping in the fitness-for-duty certification employer’s finding that substantial and requirements of Fair Labor Standards process as in the initial certification grievous economic injury will result, Act section 11(c), 29 U.S.C. 211(c), and process. The DOL is also proposing in and, if leave has commenced, must regulations issued by the Secretary of § 825.310(g) that an employer be provide the employee a reasonable time Labor. This statutory authority provides permitted to require an employee to in which to return to work, taking into that no employer or plan, fund, or furnish a fitness-for-duty certificate account the circumstances, such as the program shall be required to submit every 30 days if an employee has used length of the leave and the urgency of books or records more than once during intermittent leave during that period the need for the employee to return. any 12-month period unless the DOL and reasonable safety concerns exist. An employee may still request has reasonable cause to believe a F. Notice to Employees of Change of reinstatement at the end of the leave violation of the FMLA exists or is 12-Month Period for Determining FMLA period, even if the employee did not investigating a complaint. Entitlement [29 CFR 825.200(d)(1)]. An return to work in response to the Employers must maintain basic employer generally must choose a single employer’s notice. The employer must payroll and identifying employee data, uniform method from four options then determine whether there will be including name, address, and available under the regulations for substantial and grievous economic occupation; rate or basis of pay and determining the 12-month period in injury from reinstatement, based on the terms of compensation; daily and

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weekly hours worked per pay period; must also maintain such records in and issues on which the Department additions to or deductions from wages; conformance with any applicable ADA seeks public comments. and total compensation paid; dates confidentiality requirements; except Purpose and Use: The WHD has FMLA leave is taken by FMLA eligible that: supervisors and managers may be created optional use Forms WH–380, employees (available from time records, informed regarding necessary WH–381, and the proposed WH–382 to requests for leave, etc., if so designated). restrictions on the work or duties of an assist employees and employers in Leave must be designated in records as employee and necessary meeting their FMLA third-party FMLA leave; leave so designated may accommodations; first aid and safety notification obligations. Form WH–380 not include leave required under State personnel may be informed, when allows an employee requesting FMLA law or an employer plan which is not appropriate, if the employee’s physical leave based on a serious health also covered by FMLA; if FMLA leave or medical condition might require condition to satisfy the statutory is taken by eligible employees in emergency treatment; and government requirement to furnish, upon the increments of less than one full day, the officials investigating compliance with employer’s request, a medical hours of the leave; copies of employee the FMLA, or other pertinent law, shall certification (including a second or third notices of leave furnished to the be provided relevant information upon opinion and recertification) from the employer under FMLA, if in writing, request. health care provider. See §§ 825.306 and and copies of all eligibility notices given The FLSA recordkeeping 825.307 and Appendices B, D, and E. to employees as required under FMLA requirements, contained in 29 CFR part Form WH–381 allows an employer to and these regulations; any documents 516, are currently approved under satisfy the regulatory requirement to (including written and electronic Office of Management and Budget provide employees taking FMLA leave records) describing employee benefits or (OMB) control number 1215–0017; with written notice detailing specific employer policies and practices consequently, this information expectations and obligations of the regarding the taking of paid and unpaid collection does not duplicate their employee and explaining any leaves; premium payments of employee burden, despite the fact that for the consequences of a failure to meet these benefits; records of any dispute between administrative ease of the regulated obligations. See § 825.301(b). Form WH– the employer and an eligible employee community this information collection 382 allows an employer to meet its regarding designation of leave as FMLA restates them. obligation to designate an absence as leave, including any written statement L. Military Family Leave [29 U.S.C. FMLA leave. See §§ 825.300(c) and 825 .301(a). While the use of the DOL forms from the employer or employee of the 2612(e), 2613]: The military family leave is optional, the regulations require reasons for the designation and for the provisions of H.R. 4986 extend to the employers and employees to make the disagreement. new leave provision related to care for Covered employers with no eligible third-party disclosures that the forms a servicemember the FMLA’s existing employees must maintain the basic cover. The FMLA third-party requirements for employees to provide payroll and identifying employee data disclosures ensure that both employers advance notice when the need for leave already discussed. Covered employers and employees are aware of and can is foreseeable based on planned medical that jointly employ workers with other exercise their rights and meet their treatment, and for making reasonable employers must keep all the records respective obligations under FMLA. efforts to schedule planned medical required by the regulations with respect The recordkeeping requirements are treatment so as not to disrupt unduly to any primary employees, and must necessary in order for the DOL to carry keep the basic payroll and identifying the employer’s operations. The military out its statutory obligation under FMLA employee data with respect to any family leave provisions of H.R. 4986 section 106 to investigate and ensure secondary employees. also provide for new notice employer compliance. The WHD uses If FMLA-eligible employees are not requirements for leave taken due to these records to determine employer subject to FLSA recordkeeping qualifying exigencies whenever the compliance. regulations for purposes of minimum need for such leave is foreseeable. The Information Technology: The wage or overtime compliance (i.e., not military family leave provisions of H.R. proposed regulations continue to covered by, or exempt from, FLSA), an 4986 require that eligible employees prescribe no particular order or form of employer need not keep a record of provide notice to the employer that is records. See § 825.500(b). The actual hours worked (as otherwise ‘‘reasonable and practicable’’ in these preservation of records in such forms as required under FLSA, 29 CFR circumstances. microfilm or automated word or data 516.2(a)(7)), provided that: eligibility for The military family leave provisions processing memory is acceptable, FMLA leave is presumed for any of H.R. 4986 allow employers to apply provided the employer maintains the employee who has been employed for at the FMLA’s existing medical information and provides adequate least 12 months; and with respect to certification requirements for serious facilities to the DOL for inspection, employees who take FMLA leave health conditions to leave taken to care copying, and transcription of the intermittently or on a reduced leave for a covered servicemember. In records. In addition, photocopies of schedule, the employer and employee addition, the military family leave records are also acceptable under the agree on the employee’s normal provisions of H.R. 4986 also permit the regulations. Id. schedule or average hours worked each Secretary of Labor to prescribe a new Aside from the basic requirement that week and reduce their agreement to a certification requirement to leave taken all third-party notifications be in written record. because of a qualifying exigency arising writing, with a possible exception for Employers must maintain records and out of a servicemember’s active duty or the employee’s FMLA request that documents relating to any medical call to active duty. depends on the employer’s leave certification, recertification or medical The earlier preamble discussion on policies, there are no restrictions on the history of an employee or employee’s Family Leave in Connection with method of transmission. Respondents family member, created for FMLA Injured Members of the Armed Forces may meet many of their notification purposes as confidential medical and Qualifying Exigencies Related to obligations by using DOL-prepared records in separate files/records from Active Duty provides a fuller publications available on the WHD Web the usual personnel files. Employers explanation of the specific provisions site. These forms are in a PDF, fillable

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format for downloading and printing. the details of when employees and made a matter of public record, and The employers may keep recordkeeping employers must provide certain notices. posted without change to http:// requirements covered by this Employers must maintain employee www.regulations.gov, including any information collection in any form, medical information they obtain for personal information provided. including electronic. FMLA purposes as confidential medical An agency may not conduct an Minimizing Duplication: The FMLA records in separate files/records from information collection unless it has a information collections do not duplicate the usual personnel files. Employers currently valid OMB approval, and the other existing information collections. must also maintain such records in DOL has submitted the identified In order to provide all relevant FMLA conformance with any applicable ADA information collections contained in the information in one set of requirements, confidentiality requirements, except proposed rule to the OMB for review the recordkeeping requirements restate a that: supervisors and managers may be under the PRA under Control Number portion of the records employers must informed regarding necessary 1215–0181. See 44 U.S.C. 3507(d); 5 maintain under the FLSA. Employers do restrictions on the work or duties of an CFR 1320.11. While much of the not need to duplicate the records when employee and necessary information provided to the OMB in basic records maintained to meet FLSA accommodations; first aid and safety support of the information collection requirements also document FMLA personnel may be informed (when request appears in this preamble, compliance. The additional records appropriate) if the employee’s physical interested parties may obtain a copy of required by the FMLA regulations, with or medical condition might require the full supporting statement by sending the exception of specifically tracking emergency treatment; and government a written request to the mail address FMLA leave, are records that employers officials investigating compliance with shown in the ADDRESSES section at the ordinarily maintain for monitoring FMLA (or other pertinent law) shall be beginning of this preamble or by visiting employee leave in the usual and provided relevant information upon the http://www.reginfo.gov/public/do/ ordinary course of business. The request. PRAMain Web site. regulations do impose, however, a three- Public Comments: On December 1, In addition to having an opportunity year minimum time limit that 2006, the DOL published a Request for to file comments with the DOL, employers must make the records Information (RFI) in the Federal comments about the paperwork available for inspection, copying, and Register inviting public comment about implications of the proposed regulations transcription by the DOL. The DOL the FMLA paperwork requirements and may be addressed to the OMB. minimizes the FMLA information other issues. 71 FR 69504. On June 28, Comments to the OMB should be collection burden by accepting records 2007, the DOL published a report that directed to: Office of Information and maintained by employers as a matter of summarized the comments received in Regulatory Affairs, Attention OMB Desk usual or customary business practices. response to the RFI. 72 FR 35550. The Officer for the Employment Standards The DOL also accepts records kept due DOL also engaged various stakeholders Administration (ESA), Office of to requirements of other governmental representing the interests of employees, Management and Budget, Room 10235, requirements (e.g., records maintained employers, and healthcare providers to Washington, DC 20503, Telephone: for tax and payroll purposes). The DOL discuss the FMLA information 202–395–7316/Fax: 202–395–6974 has reviewed the needs of both collection requirements. The proposed (these are not toll-free numbers). employers and employees to determine FMLA regulations reflect the results of Confidentiality: The DOL makes no the frequency of the third-party these efforts. assurances of confidentiality to notifications covered by this collection The DOL seeks additional public respondents. Much of the information to establish frequencies that provide comments regarding the burdens covered by this information collection timely information with the least imposed by information collections consists of third-party disclosures. burden. The DOL has further minimized contained in this proposed rule. In Employers generally must maintain burden by developing prototype notices particular, the DOL seeks comments records and documents relating to any for many of the third-party disclosures that: evaluate whether the proposed medical certification, recertification, or covered by this information collection. collection of information is necessary medical history of an employee or Agency Need: The DOL is assigned a for the proper performance of the employee’s family members as statutory responsibility to ensure functions of the agency, including confidential medical records in separate employer compliance with the FMLA. whether the information will have files/records from usual personnel files. The DOL uses records covered by the practical utility; evaluate the accuracy Employers must also generally maintain FMLA information collection to of the agency’s estimate of the burden of such records in conformance with any determine compliance, as required of the proposed collection of information, applicable ADA confidentiality the agency by FMLA section 107(b)(1). including the validity of the requirements. As a practical matter, the 29 U.S.C. 2617(b)(1). Without the third- methodology and assumptions used; DOL would only disclose agency party notifications required by the law enhance the quality, utility and clarity investigation records of materials and/or regulations, employers and of the information to be collected; and subject to this collection in accordance employees would have difficulty minimize the burden of the collection of with the provisions of the Freedom of knowing their FMLA rights and information on those who are to Information Act, 5 U.S.C. 552, and the obligations. respond, including through the use of attendant regulations, 29 CFR part 70, Special Circumstances: Because of the appropriate automated, electronic, and the Privacy Act, 5 U.S.C. 552a, and unforeseeable and often urgent nature of mechanical, or other technological its attendant regulations, 29 CFR part the need for FMLA leave, notice and collection techniques or other forms of 71. response times must be of short information technology, e.g., permitting Hours Burden Estimates: The DOL duration to ensure that employers and electronic submissions of responses. bases the following burden estimates on employees are sufficiently informed and Commenters may send their views about the estimates the PRIA presented can exercise their FMLA rights and these information collections to the DOL elsewhere in this document, except as obligations. The discussion above in the same way as all other comments otherwise noted. The DOL estimates outlines the circumstances necessitating (e.g., through the regulations.gov Web 77.1 million employees were eligible for the information collection and provides site). All comments received will be FMLA leave in 2005. The FMLA applied

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to approximately 415,000 private 5, http://www.dol.gov/esa/whd/fmla/ 27,875,000 total responses × 10 business establishments and State and fmla/chapter2.pdf. The DOL also minutes/60 minutes per hour = local governments in 2005. See County estimates 92 percent of these employees 4,645,833 hours Business Patterns, 2005, U.S. Census provide medical certifications. See 2000 E. Fitness-for-Duty Medical Bureau, http://censtats.census.gov/cgi- Westat Report at A–2–51. Additionally, Certification. The DOL estimates that bin/cbpnaic/cbpsel.pl; and Census of the DOL estimates that second or third 367,000 employees will each have to Governments, Volume 3, Public opinions and/or recertifications add 15 provide one fitness for duty certification Employment, Compendium of Public percent to the total number of and 44,000 employees will each have to Employment: 2002 at 248–249, http:// certifications and that employees spend provide three such certifications, for a www.census.gov/prod/2004pubs/ an average of 20 minutes in obtaining total of 499,000 certifications provided gc023x2.pdf. The PRIA data also suggest the certifications. Employers may have by 411,000 employees and that each 7 million employees took FMLA leave employees use optional Form WH–380 fitness for duty certification will require in 2005. to satisfy this requirement. ten minutes of the employee’s time. A. Employee Notice of Need for 7,000,000 employees taking FMLA leave × FMLA Leave. While employees × 499,000 responses 10 minutes/60 81.5% rate for serious health minutes per hour = 83,167 hours normally will provide general condition × 92% asked to provide The DOL accounts for health care information regarding their absences, initial medical certifications = provider burdens to complete these the regulations may impose 5,248,600 employee respondents requirements for workers to provide 5,248,600 employee respondents × 1.15 certifications as a ‘‘maintenance and their employers with more detailed responses = 6,035,890 total responses operation’’ cost burden, discussed later. information than might otherwise be the 6,035,890 total responses × 20 minutes/ F. Notice to Employees of Change of case. The DOL estimates that providing 60 minutes per hour = 2,011,963 12-Month Period for Determining FMLA this additional information will take hours Entitlement. The DOL estimates that approximately two minutes per annually 10 percent of FMLA covered The DOL associates no paperwork employers choose to change their 12- employee notice of the need to take burden with the portion of this FMLA leave. In addition, Westat Report month period for determining FMLA information collection employers eligibility and must notify employees of data indicate about 75 percent of FMLA complete, since—even absent the users take leave in a single block, 15 the change, requiring approximately 10 FMLA—similar information would minutes per change. percent take leave in two blocks, and 10 customarily appear in their internal 415,000 covered employers × 10% percent take leave in more than two instructions requesting a medical response rate = 41,500 respondents blocks. See 2000 Westat Report at 2–3, certification or recertification. The DOL 41,500 respondents × 10 minutes/60 http://www.dol.gov/esa/whd/fmla/fmla/ accounts for health care provider minutes = 6917 hours chapter2.pdf. The DOL, consequently, burdens to complete these certifications estimates FMLA leave takers, on a per as a ‘‘maintenance and operation’’ cost G. Key Employee Notification. The capita basis, annually provide 1.5 burden, discussed later. ‘‘key employee’’ status notification to an notices of the need for FMLA leave. In D. Notice to Employees of FMLA employee is part of the employee addition, the PRIA estimates some Designation. The DOL estimates that eligibility notice; accordingly, the DOL employees who are not eligible for each written FMLA designation notice associates no additional burden for the FMLA protections will make some takes approximately ten minutes and initial notification. The DOL estimates 2,200,000 requests for FMLA leave. that there are 10,500,000 FMLA leaves that annually 10 percent of employers (7,000,000 FMLA covered employee taken each year. Employers can notify one employee of the intent not to respondents × 1.5 valid responses designate FMLA leave at the same time restore the employee at the conclusion [i.e., notices to employers]) + they provide the eligibility notice about of FMLA leave. In addition, the DOL 2,200,000 ineligible FMLA requests = 25 percent of the time, based on the estimates half of these cases will require 12,700,000 total responses number of instances where employers the employer to issue a second notice × 12,700,000 total responses 2 minutes/ request a medical certification. from the employer to address a key 60 minutes per hour = 423,333 hours According to a 2005 WorldatWork employee’s subsequent request for B. Notice to Employee of FMLA survey, 28.6 percent of absences result reinstatement. Finally, the DOL Eligibility. The DOL estimates that each from either chronic or permanent/long estimates each key employee written notice to an employee of FMLA term conditions. (See FMLA notification takes approximately 5 eligibility, rights, and responsibilities Perspectives and Practices: Survey of minutes. The DOL associates no takes approximately ten minutes. WorldatWork Members, April 2005, paperwork burden with the employee Consistent with the estimates for the WorldatWork, Figure 9a, p. 8.) requests, since these employees would number of notices employees provide, Assuming that this applies to FMLA ordinarily ask for reinstatement even if the DOL estimates that employers will leave takers, the DOL estimates that the the rule were not to exist. provide 12,700,000 FMLA eligibility notices will have to be sent to about 415,000 covered employers × 10% notices to employees. Employers may 2,000,000 workers (i.e., 28.6% of 7 response rate = 41,500 employer use optional Form WH–381 to satisfy million) taking FMLA for either chronic respondents this requirement. or permanent/long term conditions. For 41,500 employer respondents × 1.5 12,700,000 total responses × 10 purposes of estimating the paperwork responses = 62,250 total responses minutes/60 minutes per hour = burden, the DOL assumes that for 62,250 total responses × 5 minutes/60 2,116,667 hours workers with chronic conditions (either minutes = 5188 hours C. Medical Certification and temporary or permanent) ten additional H. Periodic Employee Status Reports. Recertification. The DOL estimates 81.5 notices will have to be provided each The DOL estimates employers require percent of employees taking FMLA year to each of these employees. periodic reports from 25 percent of leave do so because of their own serious 7,875,000 initial notices + 20,000,000 FMLA leave users (based on the health condition or that of a family additional notices = 27,875,000 total percentage of FMLA leave takers with member. See 2000 Westat Report at 2– responses absences lasting more than 30 days). See

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2000 Westat Report at A–2–29, http:// J. Documenting Family Relationships. used the average hourly rate of non- www.dol.gov/esa/whd/fmla/fmla/ The DOL estimates 50% of FMLA leave supervisory workers on non-farm appendixa-2.pdf. The DOL also takers do so for ‘‘family’’ related payrolls for September 2007 of $17.62 estimates a typical employee would reasons, such as caring for a newborn or plus 40 percent for fringe benefits to normally respond to an employer’s recently adopted child or a qualifying estimate respondent costs. See The request for a status report; however, to family member with a serious health Employment Situation, November 2007, account for any additional burden the condition. See 2000 Westat Report at 2– at DOL, Bureau of Labor Statistics (BLS) regulations might impose, the DOL 5, http://www.dol.gov/esa/whd/fmla/ (http://www.bls.gov/news.release/ estimates a 10 percent response rate and fmla/chapter2.pdf. The DOL also archives/empsit_12072007.pdf). The a burden of two minutes per response. estimates employers require additional DOL estimates total annual respondent The DOL also estimates that each such documentation to support a family costs for the value of their time to be respondent annually provides two relationship in 5 percent of these cases, $236,652,088 ($17.62 × 1.4 × 9,593,485 periodic status reports. While the DOL and the additional documentation hours). believes most employers would only requires 20 minutes. seek these reports in accordance with Other Respondent Cost Burdens 7,000,000 employees taking FMLA leave (Maintenance and Operation): customary business practices, the × 50% rate for family leave × 5% agency has accounted for any potential Employees seeking FMLA leave for a response rate = 175,000 employee serious health condition must obtain, additional employer burden in the respondents ‘‘Eligibility Notice.’’ × upon their employer’s request, a 175,000 20 minutes/60 minutes per certification of the serious health 7,000,000 FMLA leave takers × 25% rate hour = 58,333 hours × condition from a health care provider. of employer requests 10% K. General Recordkeeping. The DOL regulatory burden = 175,000 Often the heath care provider’s office estimates the FMLA imposes an staff completes the form for the employee respondents additional general recordkeeping 175,000 employee respondents × 2 provider’s signature. In other cases, the burden on each employer that equals health care provider personally responses = 350,000 total responses 1.25 minutes for each notation of an 350,000 total responses × 2 minutes/60 completes it. While most health care employee absence. minutes per hour = 11,667 hours providers do not charge for completing 10,500,000 total records × 1.25 minutes/ I. Notice to Employee of Pending these certifications, some do. The DOL 60 minutes per hour = 218,750 hours Cancellation of Health Benefits. The estimates completion of Form WH–380 DOL estimates the regulations require L. Military Family Leave. This to take about 20 minutes and a fitness- employers send notifications of not ‘‘paperwork burden’’ analysis estimates for-duty certification to require 10 having received health insurance the burdens for the proposed regulations minutes; thus, the time would equal the premiums to 2% of leave takers, based as drafted. The Department anticipates respondent’s time in obtaining the on the number of employees indicating issuing, after full consideration of the certification. The DOL has used the they have lost benefits. For purposes of comments received in response to the 2005 average hourly wage rate for a estimating the paperwork burden Proposed Rule, final regulations that physician’s assistant of $36.49 plus 40 associated with this information will include necessary revisions to the percent in fringe benefits to compute a × collection, the DOL expects that unique currently proposed FMLA information $17.03 cost for Form WH–380 ($51.09 respondents would send all responses. burden estimates to account for the 20 minutes/60 minutes per hour) and See 2000 Westat Report at 4–4, http:// military family leave provisions of H.R. $8.52 cost for fitness-for-duty × www.dol.gov/esa/whd/fmla/fmla/ 4986. certifications ($51.09 10 minutes/60 chapter4.pdf. The DOL also estimates GRAND TOTAL ANNUAL BURDEN minutes per hour) See National each notification will take 5 minutes. HOURS = 9,593,485 HOURS Compensation Survey 2005, DOL, BLS. 7,000,000 FMLA leave takers × 2% rate Persons responding to the various The DOL also attributes an average notification = 140,000 respondents FMLA information collections may be $1.00 cost for each documentation of a and responses employees of any of a wide variety of family relationship to cover notary costs 140,000 responses × 5 minutes/60 businesses. Absent specific wage data when an employee does not have other minutes per hour = 11,667 hours regarding respondents, the DOL has documentation available.

6,035,890 total medical certifications x $17.03 cost per certification = ...... $102,791,207 499,000 fitness-for-duty certifications x $8.52 cost per certification = ...... 4,251,480 +175,000 documentations of family relationship x $1.00 each = ...... 175,000

Total Maintenance and Operations Cost Burden for Respondents ...... 107,217,687

Federal Costs: The Federal costs that of each form covered by this will offset some of the printing and the DOL associates with this information collection to each FMLA- duplicating costs in an equal amount; information collection relate to printing/ covered employer, and that the agency therefore, the agency is presenting only duplicating and mailing the subject will mail all forms simultaneously to the costs of the latter: forms. The DOL also estimates it will any given requestor. The DOL further annually provide an average of one copy estimates information technology costs

415,000 WH–380s (Certification of Health Care Provider) × 4 pages = ...... 1,660,000 pages. 415,000 WH–381s (Notice to Employee of FMLA Eligibility) × 2 pages = ...... 830,000 pages. 415,000 WH–382s (Notice to Employee of FMLA Designation) × 1 page = ...... 415,000 pages. Total Forms = 1,245,000, Total pages = 2,905,000. 2,905,000 pages × $0.03 printing costs = ...... $87,150. 1,245,000 forms × $0.03 envelopes = ...... $37,350.

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1,245,000 forms × $0.41 postage = ...... $510,450.

Total Estimated Annual Federal Costs = ...... $634,950.

Displaying OMB Expiration Date: The annual number of FMLA leaves taken. If In 2006, the Department published a DOL will display the expiration dates these additional leaves significantly Request for Information (RFI) seeking for OMB clearances on the DOL forms increase the economic impacts imposed public comment on the Department’s cleared under this information by the FMLA regulation on a substantial administration and implementation of collection. number of small businesses, then a the FMLA regulations.19 To assist in Executive Order 12866, the Small regulatory flexibility analysis will be analyzing the impacts of the FMLA, the Business Regulatory Enforcement required. Department presented estimates of the Fairness Act, and the Regulatory The Department has prepared a coverage and usage of FMLA leave in Flexibility Act Preliminary Regulatory Impact Analysis 2005 in the ‘‘FMLA Coverage and Usage (PRIA) in connection with this rule, Estimates’’ section of the RFI (71 FR This rule has been drafted and which is presented below in its entirety. 69510). That presentation updated reviewed in accordance with Executive Westat’s estimates of the number of Order 12866, Section 1(b), Principles of Preliminary Regulatory Impact Analysis workers employed at establishments Regulation. The Department has of the Proposed Revisions to the Family covered by the FMLA, the number of preliminarily determined that this and Medical Leave Act Regulations workers eligible for FMLA leave at proposed rule is an ‘‘economically Chapter 1: Industry Profile covered establishments, and the number significant’’ regulatory action under of workers who took FMLA leave in Section 3(f)(1) of Executive Order Background 2005 (the latest year for which BLS 12866, based on the analysis presented employment data was available). It also below. As a result, the Office of The Family and Medical Leave Act highlighted a number of important Management and Budget has reviewed established a bipartisan Commission on this proposed rule. The Department also Family and Medical Leave to study findings in the 2000 Westat Report has concluded that this proposed rule is family and medical leave policies and including some of the limitations in a major rule under the Small Business their impact on workers and their using the estimates presented in the Regulatory Enforcement Fairness Act of employers. The Commission surveyed report that were noted by Westat and 1996 (5 U.S.C. 801 et seq.). In addition, workers and employers and issued a others. the Department has certified that the report in 1995.16 The methodology to calculate the proposed rule as drafted will not have In 1999, the Department contracted estimates presented in the RFI was to ‘‘a significant economic impact on a with Westat to update the employee and apply coverage, eligibility, and usage substantial number of small entities’’ establishment surveys conducted in rates from the 2000 Westat Report to and, therefore, has not prepared an 1995.17 The two surveys were employment estimates from the 2005 initial regulatory flexibility analysis completed in 2000. A report entitled Current Population Survey to produce under the Regulatory Flexibility Act of ‘‘Balancing the Needs of Families and national estimates of FMLA coverage, 1980 (see the Regulatory Flexibility Act Employers: Family and Medical Leave eligibility, and usage. The estimates the section below). However, the new Surveys, 2000 Update’’ (the ‘‘2000 Department developed using this military family leave provisions of H.R. Westat Report’’) was published in methodology are reproduced in Table 1 4986 will result in an increase in the January 2001.18 below.

TABLE 1.—ESTIMATES OF NUMBER OF COVERED AND ELIGIBLE EMPLOYEES AND LEAVE TAKEN UNDER THE FAMILY AND MEDICAL LEAVE ACT IN 2005 [Millions of employees]

Employees at FMLA-covered worksites ...... 94 .4 Eligible Employees at FMLA-covered worksites ...... 76 .1 Non-eligible Employees at FMLA-covered worksites ...... 18.4 Employees taking FMLA-protected leave ...... 6 .1 Employees taking intermittent FMLA leave ** ...... 1.5 ** Note: Many of these 1.5 million workers repeatedly take intermittent leave. Source: U.S. Department of Labor, Request for Information, (71 FR 69510 and 69511).

As discussed in the Department’s eligibility estimates, or the methodology In the RFI, the Department presented report entitled ‘‘Family and Medical it used to produce those estimates.20 three estimates of the percent (or rate) Leave Act Regulations: A Report on the However, the Department received of covered and eligible workers who Department of Labor’s Request for many comments regarding the FMLA took FMLA leave in 2005, and asked for Information’’ (the ‘‘RFI Report’’), the leave usage rates that the Department information and data on the estimates. Department did not receive any used. These estimates are reproduced in Table substantive comments on its coverage or 2 below.

16 ‘‘A Workable Balance: Report to Congress on Government, as well as businesses, foundations, 19 The Department received many comments Family and Medical Leave Policies.’’ The report is and State and local governments. about how the 2000 Westat Report in response to available at: http://www.dol.gov/esa/whd/ 18 The report is available at http://www.dol.gov/ the RFI. fmlacoments.htm. esa/whd/fmlacomments.htm. 20 The report is available at: www.dol.gov/esa/ 17 Westat is a statistical survey research whd/Fmla2007Report.htm and 72 FR at 35550. organization serving agencies of the U.S.

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TABLE 2.—PERCENT OF COVERED AND ELIGIBLE EMPLOYEES TAKING FMLA LEAVE IN 2005

Percent

Upper-bound Estimate * ...... 17.1 Employer Survey Based Estimate ** ...... 8.0 Lower-bound Estimate * ...... 3.2 * From the Westat Employee Survey. ** The Department used a rate of 6.5 percent of covered workers in the RFI. The rate presented here is the percentage of covered and eligible workers calculated by dividing 6.1 million by 76.1 million. Source: U.S. Department of Labor, ‘‘Family and Medical Leave Act Regulations: A Report on the Department of Labor’s Request for Informa- tion’’ (72 FR at 35622).

In response to the RFI the Department Data Sources and Total Estimates by FMLA regulations, since the 50- received a significant amount of data on Industry employee cutoff above which the FMLA FMLA leave usage from a wide variety The estimates presented in this applies refers to the number of of sources, including nationally Preliminary Regulatory Impact Analysis employees at a particular firm within a representative survey data and detailed (PRIA) are primarily derived from an geographic area. The Statistics of U.S. information from specific employers, industry profile developed by CONSAD Business contains both the number of both large and small, in a wide variety Research.22 Just as the Department did firms and the number of establishments of industries. Although many of the for the RFI, CONSAD used data from the in those firms at the 2-digit industry comments concerning FMLA usage rates 2000 Westat Report as the basis for level. submitted data higher than the many of its estimates. However, rather CONSAD based its estimates of employer survey based estimate than applying the Westat coverage, revenues at the 2-digit industry level presented in Table 2 above, many of the eligibility, and usage rates to data from primarily on data from the U.S. Census comments included usage rates that the Current Population Survey (CPS), Bureau, 2002 Economic Census series were consistent with the range of CONSAD primarily used data from the (2005). Depending upon the particular estimates presented in the RFI and U.S. Census Bureau, 2005 County industry sector, CONSAD used the Table 2. Clearly, some employers in Business Patterns (CBP). The CBP data value of shipments, value of business was used because it provides data on some industries will experience higher done, receipts, sales, or revenues, in the number of employees, rates of usage just as other employers in conjunction with the employment establishments, and the size of the other industries may experience lower estimates in the Economic Census. In payroll in each industry, as well as addition, CONSAD obtained some rates. Indeed, a few comments to the RFI these data by size of establishment. revenue estimates directly from the suggested the Department develop However, since the CBP only covers Census of Agriculture, as well as in the industry specific estimates because the most non-agricultural businesses in the annual reports for the Bonneville Power issues related to the FMLA vary by private sector, CONSAD supplemented Authority, the Tennessee Valley industry. the CBP with data from other sources Authority, and the U.S. Postal Service.23 including the U.S. Department of The RFI was a useful information CONSAD developed estimates of net Agriculture, Census of Agriculture, collection method that yielded a wide income before taxes (profits) for each 2- 2002, the U.S. Census Bureau, Census of variety of objective survey data and digit industry primarily from the research, as well as a considerable Governments, Compendium of Public Employment, 2002, the annual reports Statistics of Income, 2004, published by amount of company-specific data and the Internal Revenue Service. In information. As explained in the RFI of certain Federal agencies (Bonneville Power Authority and Tennessee Valley addition, CONSAD obtained net income and the RFI Report, despite the Authority), the Association of American estimates directly from the annual criticisms and limitations of the 2000 reports for the Bonneville Power 21 Railroads, Railroad Service in the Westat Report, the Department United States, 2005, and the U.S. Postal Authority, the Tennessee Valley 24 believes that it provides a great deal of Service, Annual Report, 2006. Authority, and the U.S. Postal Service. useful information and data on FMLA CONSAD estimated the number of Table 3 below presents CONSAD’s leave-takers. Moreover, based upon that firms based upon the U.S. Census estimates of the total number of firms, data, coupled with the information Bureau, Statistics of U.S. Business, establishments, and employees in the 2- received in response to the RFI, the 2004. The Statistics of U.S. Business is digit industries in which Title I of the Department has significantly based upon the same underlying data as FMLA applies. It also presents the supplemented and updated its CBP, but presents the data on a firm annual payroll, revenues, and profits for knowledge of the impacts of FMLA basis rather than the establishment basis each 2-digit industry sector. See the leave, particularly intermittent FMLA presented in the CBP. This was an CONSAD Report for the complete leave. important consideration in studying the details on these estimates.25

21 For comments on, and critiques of, the 2000 agencies of the U.S. Government, as well as Public Transit and Transportation; Public Westat Report see Chapter XI, Section A, of the RFI businesses, foundations, and State and local Educational Services; and Public Administration. Report (72 FR at 35550). governments. 24 For certain industry sectors net income 22 CONSAD Research Corporation is an economic 23 Revenue estimates were not available for parts estimates were not available. and public policy analysis consulting firm serving of Forestry, Fishing, and Hunting; Public Utilities; 25 Available at: http://www.wagehour.dol.gov.

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TABLE 3.—NUMBER OF FIRMS, ESTABLISHMENTS, EMPLOYMENT, PAYROLLS, ANNUAL REVENUE, AND PROFITS, THAT TITLE I OF THE FMLA APPLIES TO, BY INDUSTRY, 2005

Number of Annual NAICS Industry description Number establish- Number of payroll Revenues Profits codes of firms ments employees ($million) ($million) ($million)

11 ...... Agriculture, Forestry, Fishing and Hunting .... 563,692 578,536 3,205,214 $23,664 $200,646 $16,001 21 ...... Mining, Quarrying, and Oil and Gas Extrac- 19,271 24,696 497,272 30,823 190,349 24,598 tion. 22 ...... Utilities ...... 6,565 17,328 908,106 57,540 391,226 20,509 23 ...... Construction ...... 778,065 787,672 6,781,327 292,519 1,139,542 71,579 31–33 .. Manufacturing ...... 288,595 333,460 13,667,337 600,696 3,641,146 257,170 42 ...... Wholesale Trade...... 337,905 429,823 5,968,929 308,918 4,706,128 181,334 44–45 .. Retail Trade...... 737,188 1,123,207 15,338,672 348,047 3,200,607 119,040 48–49 .. Transportation and Warehousing ...... 168,769 249,211 6,067,022 257,686 556,815 27,340 51 ...... Information ...... 76,138 141,290 3,402,599 203,130 812,244 88,977 52 ...... Finance and Insurance ...... 255,273 476,806 6,431,837 446,740 2,741,213 416,135 53 ...... Real Estate and Rental and Leasing ...... 300,555 370,651 2,144,077 81,790 369,242 58,386 54 ...... Professional, Scientific, and Technical Serv- 754,580 826,101 7,689,366 456,456 941,493 87,964 ices. 55 ...... Management of Companies and Enterprises 27,353 47,593 2,856,418 243,267 119,588 20,295 56 ...... Administrative and Support and Waste Man- 320,615 369,507 9,280,282 255,400 459,221 28,777 agement and Remediation Services. 61 ...... Educational Services ...... 87,807 95,500 13,210,374 405,009 205,433 23,715 62 ...... Health Care and Social Assistance ...... 599,987 746,600 16,025,147 589,654 1,285,333 111,556 71 ...... Arts, Entertainment, and Recreation ...... 114,072 121,777 1,936,484 52,936 148,644 18,926 72 ...... Accommodation and Food Services ...... 462,956 603,435 11,025,909 156,041 489,690 33,202 81 ...... Other Services (except Public Administra- 676,401 740,034 5,390,954 127,481 476,300 31,751 tion). 92 ...... Public Administration ...... 74,067 74,067 7,534,000 222,832 ......

All Industry Sectors Covered by Title 1 of the FMLA ...... 6,649,854 8,157,294 139,361,326 $5,160,628 $22,074,860 $1,637,255 Source: CONSAD 2007. —Data Not Available. The totals may not sum due to rounding.

Note the total number of employees in more employees within a 75 mile radius and switching and terminal carriers. Table 3, 139.361 million, is very close of each other. Some additional data for Based on the average employment in to the total number of workers (less the operations not covered by the CBP each type of freight railroad, CONSAD Federal employees) in 2005 published and Statistics of U.S. Business (i.e., the assumed that Class I railroads and by the Bureau of Labor Statistics, estimates from Census of Agriculture, regional line haul railroads are, in 139.773 million. The difference is just Census of Governments, U.S. Postal general, covered under the FMLA, while 412,000, or 0.3 percent—not enough to Service, Association of American local line haul carriers and switching significantly affect the estimates Railroads, Bonneville Power Authority, and terminal carriers are generally not presented below. and Tennessee Valley Authority) were covered because they generally do not FMLA Coverage and Eligibility also used. employ 50 or more workers. Estimates All employers in primary and Data for the agricultural sectors are secondary education are covered. Title I of the FMLA covers private- from the 2002 Census of Agriculture for sector employers of 50 or more Although data for the U.S. Postal both crop production and animal employees, public agencies and certain Service, classified by the employment production combined. These data Federal employers and entities, such as size of the post office, are not available, identify those farms with 10 or more the U.S. Postal Service and the Postal CONSAD assumed that all career postal workers and those workers on these Rate Commission. To be eligible for workers are employed at worksites farms who are employed at least 150 FMLA benefits, an employee must: (1) where 50 or more employees work for days per year. To the extent that these Work for a covered employer; (2) have the U.S. Postal Service within 75 miles farms have a total of 50 or more worked for the employer for a total of of those locations and that all non- employees (and the data suggest that 12 months; (3) have worked at least career postal workers, which primarily they likely would when the average 1,250 hours over the previous 12 include casual workers and workers at number of workers employed on these months; and 4) work at a location where rural substations, likely do not meet the farms working less than 150 days per at least 50 employees are employed by coverage and eligibility requirements year is added into the average number the employer within 75 miles. relating to worksite location or to job of workers employed on these farms CONSAD’s best estimate of FMLA tenure and working hours (and are not working at least 150 days per year), coverage, by 2-digit industry, was included in these estimates). these farms would then be covered developed by summing the number of For the railroad industry (more under the FMLA. Their employees establishments with 50 or more specifically, the freight railroad include those workers employed at least employees from the CBP with data from industry), data for 2005 from the 150 days per year (and likely eligible for the U.S. Census Bureau, Statistics of Association of American Railroads FMLA leave), as well as workers U.S. Business for estimates of include Class I railroads, regional line employed less than 150 days per year employment in private firms with 50 or haul railroads, local line haul carriers, (and not eligible for FMLA leave).

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Table 4 below presents CONSAD’s covered establishments based upon this the RFI) based upon the 2005 CPS and estimates for covered establishments. methodology and data is close to the the methodology in the RFI. Note the 95.8 million estimate of the Department’s estimate of 94.4 million total number of workers employed at (presented in the RFI and the report on

TABLE 4.—NUMBER OF FMLA COVERED FIRMS AND ESTABLISHMENTS, EMPLOYMENT, PAYROLLS, ANNUAL REVENUE, AND PROFITS BY INDUSTRY, 2005

Number of Annual NAICS Industry description Number of establish- Number of payroll Revenues Profits codes firms ments employees ($million) ($million) ($million)

11 ...... Agriculture, Forestry, Fishing and Hunting .... 7,893 16,399 1,008,802 $7,485 $62,902 $5,016 21 ...... Mining, Quarrying, and Oil and Gas Extrac- 881 3,914 336,604 21,389 128,848 16,651 tion. 22 ...... Utilities ...... 570 4,773 796,896 50,865 324,319 16,933 23 ...... Construction ...... 16,650 24,291 2,741,450 133,635 460,676 28,937 31–33 .. Manufacturing ...... 29,765 66,333 11,065,335 501,498 2,947,941 208,210 42 ...... Wholesale Trade...... 11,926 59,989 3,390,529 184,438 2,673,220 103,003 44–45 .. Retail Trade...... 14,512 218,674 9,229,640 206,364 1,925,881 71,629 48–49 .. Transportation and Warehousing ...... 5,175 80,665 4,922,320 213,610 418,618 19,793 51 ...... Information ...... 3,703 31,089 2,664,028 164,743 635,938 69,663 52 ...... Finance and Insurance ...... 5,335 89,035 4,367,850 325,031 1,861,553 282,597 53 ...... Real Estate and Rental and Leasing ...... 3,726 62,188 1,033,014 39,438 177,900 28,130 54 ...... Professional, Scientific, and Technical Serv- 17,492 70,715 4,315,079 269,222 528,342 49,363 ices. 55 ...... Management of Companies and Enterprises 2,800 11,322 2,500,373 211,486 104,682 17,765 56 ...... Administrative and Support and Waste Man- 12,945 52,333 7,428,951 191,044 367,611 23,036 agement and Remediation Services. 61 ...... Educational Services ...... 18,130 27,610 12,655,139 391,513 165,820 19,142 62 ...... Health Care and Social Assistance ...... 22,161 89,592 11,330,723 400,431 908,806 78,877 71 ...... Arts, Entertainment, and Recreation ...... 3,626 14,661 1,276,356 34,243 97,973 12,475 72 ...... Accommodation and Food Services ...... 19,882 80,376 5,352,996 80,221 237,741 16,119 81 ...... Other Services (except Public Administra- 13,997 56,587 1,843,408 44,489 162,868 10,857 tion). 92 ...... Public Administration ...... 74,067 74,067 7,534,000 222,832 ......

All Establishments Covered by Title 1 of the FMLA ...... 285,237 1,134,612 95,793,493 $3,693,976 $14,191,639 $1,078,197 Source: CONSAD 2007. —Data Not Available. Note: The totals may not sum due to rounding.

Estimates of Workers Eligible To Take establishments covered by the FMLA by Department. CONSAD then assumed FMLA Leave and FMLA Leave Usage Westat’s estimate that 6.5 percent of that the extrapolation would look like a The estimates of the number of workers employed at establishments typical learning curve and plotted three workers eligible to take FMLA leave and covered by the FMLA took FMLA points corresponding to zero FMLA 27 FMLA leave usage were developed by leave. However, the Department leave taking in 1993, 3.6 percent in applying estimates from the 2000 Westat received many comments in response to 1995, and 6.5 percent in 2000, and Report to the coverage estimates. The RFI that noted this estimate does not sketched a smooth, monotonically number of workers eligible to take represent current conditions because increasing curve through the points and FMLA leave in each industry was employees today are more aware of their projected it through 2007. On this basis, calculated by multiplying Westat’s FMLA rights than they were in 1999 CONSAD estimated that the curve estimate that 80.5 percent of workers when Westat conducted its survey. In would have a value of roughly 7.3 in employed at covered establishments are the RFI Report, the Department 2007 (i.e., 7.3 percent of workers eligible to take FMLA leave 26 by the concurred and stated that ‘‘awareness of employed at establishments covered by number of workers covered by the the FMLA appears to be higher in 2005 the FMLA currently take FMLA leave). FMLA in each industry. Note that than in 1999 when Westat conducted its Estimates of the number of workers CONSAD’s estimates of the total number surveys. So just as FMLA usage taking FMLA in each industry were then of workers covered by the FMLA is increased between the times the two calculated by multiplying the estimated relatively close to the Department’s surveys sponsored by the Department number of workers covered by the estimates published in the RFI, because were conducted in the 1990s, given the FMLA in each industry by 7.3 percent. both were developed by applying the comments received it is likely that See Table 5 below. same Westat estimate to the number of FMLA usage increased between 1999 The number of workers who took covered employees. and 2005.’’ (72 FR at 35623) intermittent FMLA leave in 2005 in In the RFI, the Department estimated To account for the increase in each industry was estimated by the number of workers who took FMLA employee awareness of the FMLA, multiplying Westat’s estimate that 23.9 leave in 2005 by multiplying the CONSAD examined the changes in percent of workers who take FMLA number of workers employed in FMLA usage between the 1995 and the leave take some of the leave 1999 surveys commissioned by the intermittently (i.e., they repeatedly took 26 DOL estimate developed from 2000 Westat leave for a few hours or days at a time Report, p. A–2–21. 27 See 2000 Westat Report, pp. 3–14—3–15. because of ongoing family or medical

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reasons) 28 by the estimated number of industry. Table 5 below also presents workers taking FMLA leave in each these estimates.

TABLE 5.—ESTIMATED OF NUMBER OF FMLA ELIGIBLE WORKERS AND FMLA LEAVE USAGE, BY INDUSTRY, 2005

Number of employees NAICS Industry description Eligible to Taking Taking codes take FMLA FMLA intermittent leave leave FMLA leave

11 ...... Agriculture, Forestry, Fishing and Hunting ...... 812,085 73,643 17,601 21 ...... Mining, Quarrying, and Oil and Gas Extraction ...... 270,966 24,572 5,873 22 ...... Utilities ...... 641,501 58,173 13,903 23 ...... Construction ...... 2,206,867 200,126 47,830 31–33 .. Manufacturing ...... 8,907,594 807,769 193,057 42 ...... Wholesale Trade ...... 2,729,376 247,509 59,155 44–45 .. Retail Trade ...... 7,429,860 673,764 161,030 48–49 .. Transportation and Warehousing ...... 3,962,468 359,329 85,880 51 ...... Information ...... 2,144,543 194,474 46,479 52 ...... Finance and Insurance ...... 3,516,119 318,853 76,206 53 ...... Real Estate and Rental and Leasing ...... 831,576 75,410 18,023 54 ...... Professional, Scientific, and Technical Services ...... 3,473,638 315,001 75,285 55 ...... Management of Companies and Enterprises ...... 2,012,800 182,527 43,624 56 ...... Administrative and Support and Waste Management and Remediation Services ..... 5,980,306 542,313 129,613 61 ...... Educational Services ...... 10,187,387 923,825 220,794 62 ...... Health Care and Social Assistance ...... 9,121,232 827,143 197,687 71 ...... Arts, Entertainment, and Recreation ...... 1,027,467 93,174 22,269 72 ...... Accommodation and Food Services ...... 4,309,162 390,769 93,394 81 ...... Other Services (except Public Administration) ...... 1,483,944 134,569 32,162 92 ...... Public Administration ...... 6,064,870 549,982 131,446

All Establishments Covered by Title 1 of the FMLA ...... 77,113,762 6,992,925 ** 1,671,309 ** Note: Many of these workers are likely to take multiple FMLA leaves. See Chapter XI, Section E, of the RFI Report (72 FR at 35550). Source: CONSAD 2007.

Although the Department presented a number of FMLA leaves taken rather that leave usage can vary greatly by range for the number of FMLA leave- than the number of workers taking industry.31 takers in the RFI Report (see Chapter XI, FMLA leave, for this analysis it was Chapter 2: Estimated Impacts of the Section D, of the RFI Report (72 FR at necessary to estimate the number of Proposed Revisions Introduction 35550)), for this PRIA the Department FMLA leaves taken. To do this, presents its best estimate—7.0 million CONSAD examined the data collected In this Chapter, the Department workers. The Department departed from by the Westat employee survey. From presents its estimates of the impacts of presenting a range here because the this survey, CONSAD estimated that the proposed revisions to the FMLA. comments received in response to the during 1999, 8.8 million leave-takers The approach utilized was to present a RFI strongly suggested that the working in FMLA covered summary of the changes most likely to Department’s Employer Survey Based establishments took 13.3 million leaves. result in behavior changes by covered (point) Estimate that it presented in the Therefore, on average each leave-taker employers and their employees and to RFI (6.1 million workers) was took 1.5 leaves.29 Assuming this rate estimate the monetary value of these reasonable and the Department received applies to workers taking FMLA leave in changes whenever possible. (The very few comments on the approach 2005, CONSAD estimates that the 7.0 preamble to the proposed rule provides that it used to develop that estimate. million workers taking FMLA leave took a more detailed discussion of each 30 Estimates of the Number of FMLA about 10.5 million leaves in 2005. The proposed change.) Several findings in Leaves Taken Department did not develop estimates of the Department’s RFI Report, noted the number of FMLA leaves by industry below, influenced the methodology Because the impacts of some of the based upon the national average, used to estimate the impact of the proposed revisions are related to the because comments to the RFI indicate proposed revisions.

28 Those that answered yes to Question A5B of taking leave intermittently reported taking no FMLA number of leaves based on different qualifying Westat’s employee questionnaire: See 2000 Westat leaves. Another 53.2 percent of the covered and conditions. Report, Appendix D, p. 10. eligible leave-takers who reported taking leave 30 Although there is some uncertainty over how 29 It is important to note that the average number intermittently reported taking only one FMLA respondents interpreted the term ‘‘leave’’ in the of leaves is higher for many leave-takers. For leave. Thus, it would appear that many workers Westat employee survey (see footnote 29), this is example, as was noted in the CONSAD Report, the considered a leave to be a single qualified reason the Department’s best estimate given available data. covered and eligible leave-takers who reported (e.g., pregnancy and birth of a child) regardless of 31 taking both leave intermittently (i.e., repeatedly at the number of incidents/absences (e.g., for pre-natal In addition to the difficulty interpreting the different times) and taking more than one leave, care, morning sickness, childbirth, recovery from term ‘‘leave’’ discussed in footnote 29, the Westat took an average of 4.6 leaves. There also is some child birth). On the other hand, 8.3 percent of the surveys were not large enough to develop industry- uncertainty over how respondents interpreted the covered and eligible leave-takers who reported specific leave usage estimates. Although term ‘‘leave’’ (i.e., whether it means each incident/ taking leave intermittently reported taking 10 or information provided in response to the RFI absence or a group of absences for a single more FMLA leaves. Presumably, many of these suggests that leave usage varies by industry, the qualifying condition). For example, 1.3 percent of leave-takers were reporting the number of incidents data submitted do not permit the development of the covered and eligible leave-takers who reported (e.g., absences, late arrivals, etc.) rather than the estimates by industry.

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• ‘‘Previous congressional testimony, the PRA are based upon the number of payroll, benefits, regulatory paperwork, the 2000 Westat Report, other surveys, respondents, which is often the number and updating employment policies—are and stakeholder meetings suggest that of employers covered by the FMLA. In not joint employers with their clients, the FMLA has significant benefits and addition, the estimates in the PRIA provided: (1) They do not have the right costs.’’ (72 FR at 35627) represent the incremental changes of the to exercise control over the activities of • ‘‘Further, most surveys of workers proposed rule while those in the PRA the client’s employees, and do not have and employers show that, while the analysis represent the total burden of the right to hire, fire or supervise them, FMLA has been generally effective in the information collection. In some or determine their rates of pay, and (2) carrying out the congressional intent of cases, this results in the PRA analysis do not benefit from the work that the the Act, some aspects of the statute and calculating a paperwork burden for an employees perform. regulations have created challenges for information collection that remains Based upon the comments received in both workers and employers * * * unchanged from the current regulation response to the RFI, it appears that some employers report job disruptions and and is thus not considered an commenters were under the erroneous adverse effects on the workforce when incremental cost of the new regulation impression that PEOs were treated the employees take frequent, unscheduled, in the PRIA. Conversely, the regulatory same as temporary staffing agencies. intermittent leave from work with little definition for ‘‘collection of Thus, some workers may have been or no advance notice to the employer.’’ information’’ for PRA purposes mistakenly treated as if they were (72 FR at 35627) specifically excludes the public covered by the FMLA when they were • ‘‘[S]ome employers are likely to disclosure of information originally not. Other comments indicated that incur higher costs than the ‘average’ supplied by the Federal government to some small employers do not use PEOs firm responding to Westat’s employer the recipient for the purpose of because of uncertainty over FMLA survey. If these high costs are clustered disclosure to the public (see 5 CFR coverage. Some of these employers may in specific industries or types of work, 1320.3(c)(2)), while the PRIA needs to choose to use PEOs after the then the FMLA could impose significant consider the impact of any regulatory clarification and provide their costs for those clusters of employers changes in such notifications provided employees with some of the benefits while the average number of employers by the government. offered by the PEOs such as access to may have reported relatively lower group life and health insurance, and costs.’’ (72 FR at 35630) Cost of Reviewing and Implementing retirement plans. Although data • ‘‘The RFI record suggests that Revisions limitations inhibit the Department from intermittent FMLA leave can have Any change in a regulation will result estimating the impact of this significant impacts on time-sensitive in costs for the regulated community to clarification, the Department expects business models * * * In many review the changes and revise their that very few workers or employers will situations, the absence of just a few policies and procedures. The be impacted by this clarification. employees can have a significant impact Department estimates that, on average, a Clarifying the Definition of ‘‘Eligible * * * Comments received in response human resource professional at each to the RFI suggest at least four types of Employee’’ (§ 825.110) firm with FMLA covered establishments business operations appear to have Current § 825.110 sets forth the will spend an average of six hours to particular difficulty with unscheduled eligibility standards employees must review the revised FMLA provisions, intermittent FMLA leave: (1) Assembly meet in order to take FMLA leave. adjust existing company policies line manufacturing; (2) operations with Specifically, current § 825.110(a) accordingly, and disseminate peak demand; (3) transportation restates the statutory requirement that to information to managers and staff. operations; (4) and operations involving be eligible for FMLA leave, an employee Given that the average hourly wage and public health and safety.’’ (72 FR at must have been employed by an benefits rate of a Human Resource 35632) employer for 12 months, been employed compensation and benefits specialist is Based on these findings, the for 1,250 hours in the 12 months $36.51,32 the average one time cost per Department used a bifurcated approach preceding the leave, and be employed covered firm is $219.06 (6 hours × to assessing the impacts of the proposed by an employer with 50 or more $36.51). Multiplying this average cost revisions. First, the PRIA assesses the employees within 75 miles of the per firm by the estimated 273,937 firms impacts that are generally applicable to worksite. Current § 825.110(b) provides that have FMLA covered establishments most employers and their employees. detail on the requirement that the (see the industry profile above) results Second, the PRIA qualitatively employee must have been employed by in an estimated one-time cost of about discusses the impacts on employers and the employer for at least 12 months, $60.0 million for firms to review the employees with highly time-sensitive stating that the 12 months need not be changes and revise their policies and operations. consecutive. Although many of the estimates procedures. The Department is proposing a new presented below are developed from the Clarifying the Treatment of Professional § 825.110(b)(1) to provide that although same data sources used in the Employer Organizations (§ 825.106) the 12 months of employment need not Department’s estimates under the be consecutive, employment prior to a The Department is proposing to Paperwork Reduction Act (PRA), 44 continuous break in service of five years clarify how the joint employment rules U.S.C. 3501 et seq., and its attendant or more need not be counted. The apply to Professional Employer regulations, 5 CFR part 1320, there are Department expects that very few Organizations (PEOs). Under the several differences in the estimates. workers will be impacted by this proposal, PEOs that contract with client These differences, however, result from clarification.33 the differing requirements imposed by employers merely to perform administrative functions—including the E.O. 12866 and the PRA. For 33 In order to be impacted by the proposed example, many of the employer provision a worker would have to (1) be employed 32 Bureau of Labor Statistics, ‘‘National for at least 1,250 hours during the previous 12 estimates developed for the PRIA are Compensation Survey: Occupational Wages in the months, (2) have a break in employment with that based upon the number of covered United States, June 2006.’’ Rate assumes hourly employer for more than 5 years, and (3) need time establishments while the estimates in wage plus 40% for benefits. Continued

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The Determination of Whether 50 the proposed clarifications specifies that FMLA purposes, clarifying the term Employees Are Employed Within 75 the two visits to a health care provider ‘‘periodic’’ for chronic conditions to Miles (§ 825.111) must take place within a 30 calendar- mean two or more visits per year will Current § 825.111 sets forth the day period to meet the definition. reduce uncertainty in the workplace and standards for determining whether an Similarly, a chronic serious health decrease the burden for some workers. employer employs 50 employees within condition is currently defined in The following analysis illustrates how § 825.114(a)(2)(iii) as one that requires few workers and leaves this may 75 miles for purposes of employee periodic visits for treatment, but the involve. According to both the Westat eligibility. Paragraph (a)(3) of this regulations do not define the term and WorldatWork surveys, leaves based section provides that when an employee ‘‘periodic visit.’’ In the proposal, on multiple visits to a health care is jointly employed by two or more ‘‘periodic visit’’ is defined as visiting a provider (as distinct from leaves for self- employers, the employee’s worksite is physician twice or more per year for the treatment) represent only a small the primary employer’s office from same condition. This is based on an percentage of FMLA leaves. In fact, the which the employee is assigned or expectation that employees with WorldatWork survey states that multiple reports. The Department is proposing to chronic serious health conditions will treatments were the basis of only 5.1 modify § 825.111(a)(3) to state that after generally visit their health care percent of FMLA episodes.34 However, an employee who is jointly employed is providers with a minimum frequency of it is very unlikely that the proposed stationed at a fixed worksite for a period semi-annually. changes will impact even this small of at least one year, the employee’s Although the proposed clarification percentage of leaves because: (1) The worksite for purposes of employee will reduce uncertainty in the multiple treatments that most workers eligibility is the actual physical place workplace, it is unlikely to have any currently have will likely meet the where the employee works. No changes identifiable impact on FMLA leave- revised requirements with no change in are being proposed with respect to takers for several reasons. First, of the the behavior of those workers; and (2) employees whose worksite has not been five different definitions of continuing other workers will simply move up the fixed for at least one year. treatment contained in current time of their second treatments to meet The Department expects that this § 825.114(a)(2)(i) through (v), the the revised requirements (e.g., the 30 clarification will have little net impact. Department is proposing to update only day period), or provide an explanation Some employees currently covered by two. Those workers who meet the other of the ‘‘extenuating circumstances.’’ FMLA may not be covered if their tests will not be affected (i.e., the Therefore, it is likely that on balance official worksite is changed because clarifications do not impact workers very few workers will be impacted by they have worked more than one year at who take FMLA leave for a pregnancy the proposed changes.35 The an establishment which has less than 50 or prenatal care; workers who use leave Department specifically requests employees within 75 miles, while other for a condition that is permanent or comment on this conclusion. employees not currently covered may long-term for which treatment may not become covered if their worksite is be effective; or workers who use leave Substitution of Paid Leave (§ 825.207) changed to an establishment which has for multiple treatments, such as for a In the RFI the Department noted 50 or more employees within 75 miles. condition that would likely result in ‘‘Some employers commented that the Clarifying the Definitions of more than three consecutive days of substitution of leave provisions ‘‘Continuing Treatment’’ and ‘‘Periodic incapacity in the absence of treatment. contribute to increased FMLA leave at Visit’’ (§ 825.113, § 825.114 and The proposed changes also do not affect otherwise popular vacation or personal § 825.115) employees who take FMLA leave for leave times.’’ Moreover, this increased serious health conditions that required use of FMLA leave resulted in some The current regulations an overnight hospital stay or workers workers receiving more favorable (§ 825.114(a)(2)(i)(A)) define who will qualify on the basis of one treatment than others. ‘‘Many employers ‘‘continuing treatment’’ for purposes of visit to a health care professional and a commented that the regulations force establishing a serious health condition continuing regimen of treatment. employers to treat employees seeking to as a period of incapacity of more than Second, serious health conditions use accrued paid leave concurrently three consecutive calendar days and usually require two visits to a health with FMLA leave more favorably than treatment two or more times by a health care provider within 30 days, and those who use their accrued paid leave care provider. However, the current workers with chronic serious health for other reasons. The Madison Gas and ‘‘two visit’’ requirement for serious conditions typically visit their health Electric Company, for example, stated health conditions is open-ended. One of care providers twice a year. Finally, the that ‘‘during ‘peak’ or ‘high demand’ Department has also proposed an vacation periods, employees may from the earlier period of employment with the ‘‘extenuating circumstances’’ exception request FMLA leave causing the same employer to meet the 12 months of employment requirement for FMLA eligibility. Very to the 30-day rule in § 825.115(a)(1), so employer to deny other employees their few workers are likely to meet these three it is likely that very few workers will be scheduled leaves due to staffing level conditions. For example, part-time employees negatively impacted by the proposed concerns based on business needs.’’ (72 would have to work an average of 25 hours per changes. FR at 35612) The proposed revision will week for 50 weeks to meet the 1,250 hours employed requirement. So the only ones impacted In fact, the Department believes it is address both of these concerns by are those who want to use FMLA leave and who providing FMLA protection to more combining current paragraphs (a), (b), need a few additional weeks of employment from workers by clarifying that the period and (c) of § 825.207 into one paragraph their previous period of employment more than 5 should be 30 days, instead of adopting (a), which now clearly states that the years ago with the same employer. Similarly, returning full-time employees will need more than the stricter regulatory interpretation 7 months of employment at 40 hours per week to offered by the United States Court of 34 WorldatWork, FMLA Perspectives and meet the 1,250 hours employed requirement. So the Appeals for the Tenth Circuit (see Practices: Survey of WorldatWork Members, April only ones impacted are those who want to use discussion in preamble). Further, to the 2005, Figure 9a, p. 8. FMLA leave and who need a few extra months of 35 The Department anticipates that at most 27,000 employment from their previous period of extent that some employers have chosen leaves may require an additional visit to a employment more than 5 years ago with the same to provide their own more stringent healthcare professional to qualify for FMLA employer. definition of the term ‘‘periodic’’ for protection.

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terms and conditions of an employer’s employers with additional notice of a regulations interfere with the paid leave policies apply and must be pending absence so they can utilize paid effectiveness of perfect attendance followed by the employee in order to vacation and personal leave in bonuses because employees could still substitute any form of accrued paid conjunction with their FMLA leave. qualify for the bonus while absent on leave—including, for example, paid Other FMLA leave-takers will not be FMLA leave. As a result, the benefits of vacation, personal leave, family leave, able to satisfy their employer’s the bonuses to employers are ‘‘paid time off’’ (PTO), or sick leave. In procedures for taking paid leave (e.g., diminished because employers still addition, the proposed revision will because the procedures require that incur the costs related to absenteeism in help reduce the impact of unforeseeable leave be taken at specific times of the addition to the cost of the bonuses, intermittent leave and uncertainty in the year or in minimum blocks of time such which means that fewer employers may workplace by providing employers with as a week). However, workers who do offer these awards, ultimately hurting sufficient notice of their employees’ not or cannot satisfy their employer’s employees as well. need for leave and thereby allowing for procedures for taking paid leave will The Department believes that this better staffing adjustments. still remain entitled to all the revision will restore perfect attendance Proposed § 825.207 requires FMLA protections of unpaid FMLA leave. awards to their intended purpose. By leave-takers who are also receiving paid The inability to take paid vacation reducing the uncertainty surrounding leave to meet their employer’s leave concurrently with FMLA leave employee incentive plans, this revision uniformly-applied paid leave policies may have a negative impact on the cash may encourage more employers to for accrued paid vacation and personal flow of those few who do not satisfy provide larger bonuses as incentives to leave. If an employee does not comply their employer’s requirements for taking reduce absenteeism among all workers. with the requirements in an employer’s paid leave, and the Department Based upon the comments to the RFI, paid leave policy, the employee is not understands that many commenters the Department expects that some entitled to substitute accrued paid responding to the RFI emphasized the reduction in unnecessary absenteeism vacation and personal leave, but importance of the ability to substitute will reduce overall employer costs. remains entitled to all the protections of paid leave. However, for the few However, data limitations inhibit the unpaid FMLA leave. workers who will no longer be able to Department from quantifying the impact According to Westat, 65.8 percent of substitute paid vacation in all of this revision. workers who take FMLA leave received situations, these workers will still be The Treatment of Light Duty some type of pay during their longest entitled to use their accrued paid leave (§ 825.220(d)) FMLA leave.36 Further, CONSAD at some other time. estimated that 55.0 percent of these The Department is proposing to delete Perfect Attendance Awards leave-takers received paid vacation or the final sentence of current (§ 825.215(c)(2)) personal leave.37 Therefore, about 2.5 § 825.220(d) to ensure that employees million workers (i.e., 7.0 million × The Department is proposing to retain their right to reinstatement for a 65.8% × 55%) received paid vacation or replace the existing language in full 12 weeks of leave instead of having personal leave during their FMLA leave. § 825.215(c)(2) with language that better the right diminished by the amount of However, the proposal will not impact reflects the requirements of the statute time spent in a light duty position. all of these workers because many of and reduces uncertainty in the Under FMLA employees have no right them will continue to be eligible to use workplace. Specifically, employers are to a light duty position. Therefore, paid vacation pursuant to their uncertain whether their employee employers will only offer such duty to employers’ normal vacation leave incentive plans are in violation of the employees when it is advantageous for policies. current regulation. The confusion stems them to do so. This will continue to be Most employers do not have very from language which distinguishes the case under the revised provision. strict requirements regarding paid leave. between bonuses for job performance Although the Department believes that According to the 2000 Westat Report, such as those based on production this change will have a negligible 77.8 percent of leave-takers reported goals, and bonuses that contemplate the impact on employers, a few workers that it was easy to get their employer to absence of occurrences, such as bonuses whose employers are counting their let them take time off. This suggests that for working safely with no accidents or light duty hours towards their 12 weeks the vast majority of workers will have for perfect attendance. of FMLA leave will now have more no problem complying with their Perfect attendance incentives are hours of leave available. The only employers’ paid leave policies. On the traditionally offered by employers impact that the Department anticipates other hand, 14 percent reported that it where the costs of absent employees is that some workers may not be offered was difficult to get time off.38 This (i.e., the cost of the production delay light duty because their employers will suggests that a similarly small itself or the cost of overstaffing or not consider such duty cost-effective if percentage of the 2.5 million workers overtime to avoid the delay) are high. the time is not counted against the who received paid vacation or personal Employers would offer the bonuses to worker’s FMLA allotment, either for leave during their FMLA leave may motivate workers not to be absent, purposes of restoration rights or length thereby avoiding costs that are far in of leave. have some difficulty satisfying their 39 employers’ paid leave policies. excess of the bonus. In such situations, both employers and Changes to the Employer Notification Some of these FMLA leave-takers will Requirements (§ 825.300) be encouraged to provide their employees gain from the bonus. Employers reduce their costs. Proposed § 825.300(a)(3) requires 36 See the 2000 Westat Report, Table 4.2, p. 4–5. Employees increase their income. covered employers with eligible 37 The 2000 Westat Report indicated that of leave- Comments made in response to the employees to distribute a general notice takers who received paid leave during their longest RFI indicate that the current FMLA of information about the FMLA to FMLA leave, 39.4% received paid vacation leave employees either by including it in an and 25.7% received paid personal leave (Table 4.6, 39 A rational employer would balance the perfect employee handbook or by distributing a p. 4–6). Using probabilities, 55.0% = 39.4% + attendance award cost with the cost of employee 25.7%—(39.4% × 25.7%). absence, and not offer such bonuses where the cost copy to each employee at least once a 38 See 2000 Westat Report, Table 4.2, p. 4–3. of an absence is relatively low. year, either in paper or electronic

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format, regardless of whether an out each year (i.e., 7.8 million—1 (about 49 cents) times the 0.4 million employee requests leave. million sent out under the current rule). additional annual notices sent via mail). Current § 825.301(a)(1) requires an The 2000 Westat Report suggests that Adding all of these costs together employer to place in an employee 32 percent of employees without FMLA yields a total estimated annual additional cost of about $5.1 million for handbook, if one exists, a notice of information in a handbook will receive the general notice proposal.44 FMLA rights and responsibilities and an annual notice via e-mail, 62 percent the employer’s policies on FMLA. After receiving these general notices will receive a hand-delivered memo at on an annual basis some employees who Current § 825.301(a)(2) states that an work, and the remaining 6 percent will employer without a handbook must previously did not take FMLA leave, receive their annual notice via regular may choose to do so because they provide written guidance to an 42 mail. Therefore, among the additional acquire additional information from the employee concerning all the employee’s notices needed each year, 2.2 million rights and obligations under FMLA notice regarding the protections (i.e., 32% of 6.8 million) will be e- afforded by the FMLA. Data from Westat when the employee gives specific notice mailed, 4.2 million will be hand- of the need for leave. employee survey reveal that 2.7 percent, delivered at work, and 0.4 million or 2.4 million, of covered and eligible The difference between the proposed notices will be sent by regular mail. employees needed leave for FMLA and current provisions, therefore, is that Of the 1.135 million FMLA covered covered reasons, but did not take it, and under the proposal all employees establishments, an estimated 92,000 that 8.6 percent, or 210,000, of covered working in covered establishments (8.1%) do not include FMLA and eligible leave-needers reported that without handbooks must be notified information in an employee handbook they could have afforded to take the annually rather than just when they ask and will be required to send annual leave, but had never heard about the for leave that could be FMLA leave. The notices to employees. For e-mail FMLA.45 The Department also estimates proposed change will likely increase notices, the Department estimates that it that 17.7 percent of covered and eligible notification costs for some covered will take on average one hour for a leave-needers who reported they could employers (i.e., those without ‘‘benefits and compensation’’ specialist afford to take leave, but had never heard handbooks), and will likely increase to prepare a notice (or find a pre-made about the FMLA, did not take the leave awareness of the Act and therefore for fear of losing their jobs.46 Assuming FMLA usage. one from the Department of Labor’s Web site) and e-mail the notice to employees. these workers would now be more CONSAD estimated the number of For hand-delivered notices, the aware of their FMLA protections they additional notices that may be required Department assumes that it will take on would most likely take FMLA leave, the for this provision, based upon data from average 1.5 hours to prepare the notice Department estimates that the number the 2000 Westat Report. The 2000 and hand-deliver it through the of FMLA leave-takers will increase by Westat Report indicates that 18.9 interoffice mail. Finally, the Department about 37,000 employees (i.e., 17.7% of percent of employees request FMLA estimates that it will take a similar 210,000) because of the proposed leave annually. CONSAD added 1 specialist an average of two hours to general notice provision. percent to this estimate to account for prepare notices to be mailed by regular The estimated administrative costs the growth in awareness of the FMLA mail. This time includes preparing the associated with these additional from 1999 to 2005, and then the 19.9 workers taking FMLA leave is based 2 notice, printing mailing labels, and percent was multiplied by ⁄3 to account putting the notices in envelopes. upon the estimate of 1.25 hours of a for the fact that the Westat survey ‘‘compensation and benefits specialist’’ covered 18 months instead of 12 Based on data from the Bureau of to process the paperwork for each months. Thus, CONSAD estimated that Labor Statistics, the average cost for worker at a cost of $36.51 per hour. about 12.7 million covered employees wage and benefits of a ‘‘benefits and Thus, the administrative burden of request leave each year (i.e., 13.3% of compensation specialist’’ is $36.51 per 37,000 additional workers taking FMLA 43 the 95.8 million FMLA covered hour. So the estimated cost to prepare leave will cost approximately $1.7 employees).40 Data from Westat also the 29,000 e-mail notices is about $1.1 million. indicate that 8.1 percent of covered million (i.e., 92,000 establishments Proposed § 825.300(b) consolidates employees did not receive information multiplied by 32%, times the cost of the notice provisions contained in regarding their FMLA rights in $36.51 per establishment) and the existing § 825.110(d) and § 825.301(b) handbooks.41 Therefore, employers estimated cost for 57,000 firms to hand- into a paragraph entitled ‘‘eligibility currently send out about 1 million deliver notices is about $3.4 million notice.’’ Consistent with current general notices to employees requesting (i.e., 92,000 establishments multiplied § 825.110, the employer continues to be leave (i.e., 12.7 million × 8.1%). by 62%, times the cost of $54.77 per responsible under proposed paragraph Under the new provision, all FMLA- establishment, plus the cost of copying (b)(1) of this section for communicating covered employees must receive an the notice for 4.2 million workers at 8 eligibility status. The proposed FMLA general notice at least annually, cents per copy). The estimated cost for regulations require that this information regardless of whether they request leave, 5,500 firms to prepare and deliver the be conveyed within five business days if the information is not in an employee notice through regular mail is about $0.6 after the employee requests leave or the handbook. Therefore, employers will million (i.e., 92,000 establishments employer acquires knowledge that the have to send annual notices to about 7.8 multiplied by 6%, times the cost of employee’s leave may be for an FMLA- million workers (i.e., 8.1% of the 95.8 $73.02 per establishment, plus the cost qualifying reason (a change from the million covered employees), and the net of mailing a notice via regular mail impact of the proposal will be 6.8 44 To the extent that e-mail or other electronic million additional general notices sent 42 Id. The Department assumes that the means of communication may be more common distribution of the means of communication among now than in 2000, this may be an overestimate of employees is the same as the distribution of means the impact of this provision. 40 Although 12.7 million workers requested leave, of communication among establishments. 45 Department of Labor, Employment Standards only 7.0 million were eligible and took leave. 43 National Compensation Survey: Occupational Administration, estimates from the Westat 41 See the 2000 Westat Report, Table A2–6.1, p. Wages in the United States, June 2006. Based on an Employee Survey data. A–2–50. hourly wage of $26.08 plus 40% for benefits. 46 Id.

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current requirement of two business and the cost of providing more about 10 minutes of a ‘‘compensation days). information to employees in the and benefits specialist’’ time to Proposed § 825.300(b)(2) specifies designation notices (see below). process.49 According to the what information an employer must Proposed § 825.300(c) requires that an WorldatWork survey, 28.6 percent of convey when communicating with the employer notify the employee if the absences result from either chronic or employee as to eligibility status. While leave is not designated as FMLA leave. permanent/long term conditions.50 not required under the current As was noted above, CONSAD Assuming that this applies to leave regulations, the proposal requires the estimated that 12.7 million covered takers, the Department estimates that 10 employer to notify the employee employees request leave each year. additional designation notices will have whether leave is still available in the Subtracting the estimated 10.5 million to be sent to about 2 million workers applicable 12-month period. If the FMLA leaves from the number of (i.e., 28.6% of 7 million) taking FMLA employee is not eligible or has no FMLA requests for FMLA leave yields an for either chronic or permanent/long leave available, then, pursuant to estimated 2.2 million FMLA leave term conditions each year at a cost of proposed (b)(2), the notice must indicate requests denied each year. Based upon $121.9 million (i.e., 2 million × 10 the reasons why the employee is not an estimated 0.5 hours to process each notices × 0.167 hour × $36.51 per eligible or that the employee has no of these requests at a cost of $36.51 per hour).51 The Department has not FMLA leave available. In proposing hour, the Department estimates that estimated the cost of alternative these new notice requirements, the notifying the 2.2 million workers why notification frequencies (e.g., every 60 Department believes there will be very their requests for FMLA has been days, every three months, etc.) because little additional burden, since the denied will results in a cost to the cost of this revision depends solely employer is already required to employers of about $40.2 million. on the frequency of the designation calculate such information in order to Proposed § 825.300(c)(1) requires notices.52 The Department, however, determine eligibility. Moreover, any employers to inform their employees of requests comment on its assumption additional reporting burden will likely the number of hours, days, or weeks, if that 10 additional designation notices be more than offset by the benefit of possible, designated as FMLA leave. To would be required each year under the changing the notification requirement estimate the impact of this change, the proposed language of § 825.300(c)(1) from two to five days. Providing more Department assumes it would take an and whether some alternative frequency time will reduce mistakes and provide additional 10 minutes of a for employers to provide the designation greater certainty in the workplace, and ‘‘compensation and benefits specialist’’ notices is more appropriate than the this typically benefits both workers and time to process each designation proposed frequency of every 30 days. employers. because of the new requirement to The net impact of all of the revisions provide the amount of time that will be Similarly, proposed § 825.300(c) discussed in this subsection, therefore, outlines the proposed requirements of designated as FMLA leave.47 Based will be a net cost of about $139.0 the designation notice an employer upon 10.5 million leaves, this will result million. must provide to an employee, currently in about $65.9 million in additional located in § 825.208(b). This proposed costs. Changes Related to Employees Notifying designation notice requires that an Moreover, where the amount of future Their Employers (§§ 825.302, .303 and employer notify the employee within leave that will be needed by an .304) employee is unknown, such as for five business days (a change from the The current regulations require an workers with chronic conditions, current requirement of two business employee to notify his or her employer proposed § 825.300(c)(1) requires that days) that the leave is designated as of the need for leave and generally to the notice of the amount of leave FMLA leave once the employer has schedule leave for planned medical sufficient information to make such a designated and counted be provided treatments in a way that the absences do determination. every 30 days, to the extent that the not unduly disrupt the employer’s Proposed § 825.300(c)(3) explicitly employee took leave for the condition in permits an employer to provide an the prior 30-day period. Currently, the business operations. These proposed employee with both the eligibility and regulations do not specifically address revisions are intended to reduce the designation notice at the same time in the designation of the particular amount impact of unforeseeable intermittent cases where the employer has adequate of unforeseen, intermittent leave used. leave and uncertainty in the workplace information to designate leave as FMLA Current § 825.208 requires an employer without negatively impacting leave- leave when an employee requests the to designate leave as FMLA-qualifying needers. leave. leave, and current § 825.301(c) requires 49 The Department estimates that the that the notice of an employee’s specific This estimate is consistent with the data presented in WorldatWork, FMLA Perspectives and changes related to increasing the time obligations must be provided no less Practices: Survey of WorldatWork Members, April permitted to provide the notices and the often than once every six months, but 2005, Figure 6, p. 7. ability to combine the notices will save they do not expressly address the 50 Id., Figure 9a, p. 8. employers on average about 15 minutes number of days or hours of leave used. 51 This is an upper bound estimate because it is of a ‘‘compensation and benefits To estimate the impact of this change, based upon the assumption that the workers will take some FMLA leave each month and that a specialist’’ time in processing each the Department assumes that for designation notice will be required every month. leave. At a cost of $36.51 per hour, workers with chronic conditions (either Clearly, some workers with FMLA certifications for saving 0.25 hours on each of the temporary or permanent) an additional chronic health conditions do not take FMLA leave estimated 10.5 million leaves taken 10 notices 48 will have to be provided every month. Moreover, although the current regulations do not specifically address the results in a savings of about $95.8 each year and that each notice will take designation of unforeseen intermittent leave, the million. However, these savings are RFI record suggests that many employers are offset by the cost of the new 47 This estimate is consistent with the data already sending out designation notices for this requirement that an employer notify the presented in WorldatWork, FMLA Perspectives and type of FMLA leave to avoid any potential legal Practices: Survey of WorldatWork Members, April liability. employee if the leave is not designated 2005, Figure 6, p. 7. 52 Additional Annual Cost = (Annual Number of as FMLA leave due to insufficient 48 Currently up to 2 notices are required each Notices Required—2 Current Notices) × $12.2 information or a non-qualifying reason year. million.

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Under the Department’s proposal, an Department estimates that no notice is not a productivity savings in the employee must provide notice as soon currently being provided prior to the traditional sense because there is no as practicable, meaning feasible under start of the workday for 4.8 million output and no time involved. Rather, the circumstances, and must comply leaves (i.e., 46% of 10.5 million leaves). the Department is using one hour of with the employer’s usual procedures It is this late notification that results employees’ compensation 60 as a rough for calling in and requesting leave, in greatest uncertainty and disruption to estimate of the costs related to the except when extraordinary employers’ business operations. For uncertainty and disruptions caused by circumstances exist such as when the example, it creates significant problems unscheduled intermittent FMLA leave employee or covered family member if the employer cannot obtain adequate (e.g., work being left undone until the needs emergency medical treatment. staffing; 55 the production process is absent employee’s work can be shifted The Department expects that in all but often slowed down or brought to a to another employee or until another the most extraordinary circumstances, halt; 56 and the situation is particularly employee can cover for the absent employees will be able to provide notice ominous when the employee works in a employee). Further, this estimate is to their employers of the need for leave safety-sensitive position, such as 911 limited to the typical impact. If the prior to the start of their shift. The operators.57 Moreover, workplace absence of an employee affects the proposed changes should reduce some uncertainty can impact other employees productivity of other employees besides of the uncertainty and disruptions who may have to pull double-duty to the one reassigned the task (i.e., in caused by employees taking cover for a team member or co-worker.58 highly time-sensitive production unforeseeable FMLA leave with little or There are three anticipated behavioral processes such as manufacturing), this no advance notice to their employers. responses that leave-takers will have to may be an underestimate of the effects As was noted in the RFI Report, the proposed provisions. First, most of this provision.61 Thus, the unscheduled leave is more disruptive to leave-takers will simply change their Department estimates that more timely employers than foreseeable leave. By its notification behavior and notify their notifications by employees will result in very definition, foreseeable FMLA leave employers of leaves prior to the start of a savings of about $113.2 million to can be anticipated and planned for as their workday. This change will mean employers. The Department specifically employees are aware of their need in that although the leaves are taken, staff request comments on the analysis used advance and can easily notify their uncertainty will be reduced and to develop this estimate. employers prior to taking FMLA leave. employers will have more time to obtain The second possible response to this Even in cases where the exact timing of a replacement and be in a better change is that some workers who the leave is not known 30 days in position to meet staffing needs despite continue to avoid compliance with their advance, the Department believes that the unexpected absence. The employer’s attendance policies may be most employees taking foreseeable Department expects that 95 percent or subject to their employer’s disciplinary FMLA will easily be able to comply 4.6 million of the 4.8 million leaves procedures for being absent. No workers with their employers’ leave policies (see where employees are currently not with a legitimate need for FMLA leave discussion in preamble). On the other providing notification until the start of will be in this group or decide not to hand, by its very nature, unforeseeable the workday will be in this category. take the leave in response to a last- leave presents difficulties for both Better control of the unforeseen minute emergency because: (1) The employees and their employers, absences will reduce the disruptions revisions provide for ‘‘extraordinary particularly as to the requirement that associated with the labor absence. The circumstances’’ (see below); and (2) an the employee provide notice of the need Westat Survey and comments made in employee is likely to take leave for leave as soon as practicable. response to the RFI suggest that the regardless of the interpretation of ‘‘as According to a 2007 survey conducted soon as practicable’’ during a serious by the Society for Human Resource most likely response of employers to an health situation.62 Management (SHRM), 34 percent of unforeseen absence of short duration is to simply assign the absent employee’s The Department expects that 4.9 FMLA leave takers for episodic percent or 235,000 of the 4.8 million conditions did not provide notice before work to other employees. However, the comments to the RFI also indicate that leaves where employees are currently the day the leave was taken and 12 not providing notification until the start percent provided notice more than one it may take employers some time to 53 arrange for coverage, especially in cases of the workday will be in this category. day after the leave was taken. The Department estimates that each of Therefore, according to SHRM’s survey where the notification of the FMLA comes in after the start of the shift. For the leaves not covered by FMLA will about 46 percent of employees are not save employers’ administration and providing notice prior to the start of this proposed rule, therefore, DOL has used one hour of the average earnings of their workday. This estimate is 60 The wage plus benefits represents the marginal consistent with the findings of the production and nonsupervisory workers on private nonfarm payrolls ($17.57) 59 cost of the absent employee. In a perfectly Employment Policy Foundation, which competitive market, this would be equal to the found that 41 percent of employees are plus 40 percent for benefits as a proxy marginal revenue brought in by that employee. for the cost of an absence without Therefore, one hour of compensation is used as a not providing notice prior to the start of proxy for the opportunity cost of having the worker 54 sufficient notification. This savings is their workday or shift. Thus, the missing for an hour. 61 See the later discussion on the possible impacts not provide notice before the day the leave is taken. 53 Society for Human Resource Management, on highly time-sensitive industries. According to the survey, in over 30 percent of cases, FMLA and Its Impact on Organizations, Figure 7, 62 employees provide notice after the leave has The Department received a number of p. 17, available at: http://www.shrm.org/ started. In another 11 percent of cases, employees comments in response to the RFI that suggest some hrresources/surveys_published/FMLA%20 providing notice [sic] at the time the leave begins employees may be misusing FMLA leave to avoid And%20Its%20Impact%20On%20Organizations or immediately after.’’ their employers’ attendance policies (see Chapter %20Survey%20Report.pdf. IV, Section B.2, of the RFI Report, 72 FR at 35571). 55 RFI Report, 72 FR at 35631. 54 Janemarie Mulvey, PhD, Employment Policy However, as noted in the RFI Report, the 56 Foundation Issue Backgrounder, ‘‘The Cost and Id. at 35633. Department cannot assess from the record how Characteristics of Family and Medical Leave,’’ April 57 Id. at 35635. much leave taking is actual ‘‘abuse’’ and how much 19, 2005, p. 3. ‘‘With respect to providing notice 58 Id. at 35633. is legitimate, and therefore cannot estimate what prior to taking FMLA leave, the survey results show 59 According to the October 2007 BLS impact this proposal would have on the alleged that nearly 50 percent of all FMLA leave takers do Employment Report. misuse of FMLA leave.

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reduced operational costs equal to an employees or their family members to The proposed revisions will make it average of about 1 hour of a use in obtaining medical certifications easier for employees to understand what ‘‘compensation and benefits and second and third opinions from a is required and will reduce uncertainty specialist’s’’ time. At a cost of $36.51 health care provider. as to whether the condition qualifies as per hour, this will result in a savings of There are three proposed changes to a serious health condition under the about $8.6 million. § 825.307. First, the proposed provision FMLA. In addition, the Department The third possible response is that clarifies the limited nature of the expects that employees will have to some leave-takers will have authentication process and removes the make fewer trips and phone calls to ‘‘extraordinary circumstances’’ with a requirement that employees consent to their health care providers to obtain serious health condition and take leave authentication of the certification. ‘‘complete and sufficient’’ certifications, without providing advance notice. Second, the proposal allows employers although the Department has not However, the number of leaves for to contact the employee’s health care quantified this impact. which advance notice cannot be given provider directly, rather than through a In response to the RFI, some health will likely be very small, on the order third-party health care provider that care providers expressed their of 0.1 percent of the 4.8 million leaves represents the employer, provided the frustration with the current form and or 48,000. The uncertainty, disruptions, contact between the provider and the the amount of time required to provide and costs associated with this type of employer comply with the privacy rule their patients with ‘‘complete and unscheduled leave for both employers under the Health Insurance Portability sufficient’’ certifications. The and employees are inevitable, and Accountability Act (HIPAA). Third, Department expects that the proposed unavoidable, and will likely continue, the new provision extends the time clarifications will decrease the burden but the incremental impacts of this allowed for an employer to provide the on health care providers and possibly continued type of leave, relative to the results of second and third opinions of reverse the trend of increasing numbers current rule, is minimal. medical certifications from two business of health care providers charging their The net impact of all of the revisions days to five. patients for filling out the medical discussed in this subsection, therefore, According to the 2000 Westat Report, certification forms. will be a net savings of about $121.8 73.6 percent of leave-takers took leave million. Recertifications (§ 825.308) and for a serious health condition (either Certifications for Fitness-for-Duty Medical Certifications (§§ 825.305, their own or for a covered family (§ 825.310) 825.306 and 825.307) member),63 and 92 percent of covered establishments required medical Consistent with Wage and Hour Current § 825.305(c) provides that an documentation for covered leave due to Opinion Letter FMLA2004–2–A (May employer should request medical a serious health condition.64 The 25, 2004), the proposed change to certification from the employee within Department estimates that these § 825.308(e) of the FMLA would allow two business days of receiving the provisions will affect about 7.1 million employers to send the absence schedule employee notice of the need for leave. FMLA leaves taken for serious health of an employee to a health care provider The Department is proposing to modify conditions (i.e., 7.0 million leave-takers and to ask the health care provider this time-frame to a five-business-day × 73.6% × 1.5 leaves × 92% = 7.1 whether or not the employee’s pattern of standard. This change is being proposed million). The Department also estimates intermittent leave use is congruent with to maintain consistency with the that these changes, as well as the the employee’s qualifying medical modifications being proposed to changes discussed above, will result in condition. Further, consistent with the § 825.300. Providing more time will a net savings to employers of on average existing regulation, proposed reduce mistakes and provide greater about 15 minutes of a ‘‘compensation § 825.308(b) explains that if a minimum certainty in the workplace, and this and benefits specialist’’ time in duration for the leave is specified, the typically benefits both workers and processing each leave request.65 At a employer may not request recertification employers. cost of $36.51 per hour, saving 0.25 until that time period has expired but The Department is also proposing in adds that, in all cases, recertifications § 825.305(c) that when an employer hours on each of the estimated 7.1 million leaves taken results in a savings may be requested every six months. determines that a medical certification Thus, the Department assumes that this is incomplete or insufficient, the of about $64.8 million for employers. In response to the RFI, some clarification will not impact either employer must state in writing what employers or employees. The proposed additional information is necessary and employee groups stated that it was often very challenging for workers to obtain change to § 825.308(e) will, however, provide the employee with seven provide employers with a tool to calendar days to cure the deficiency certifications because the ambiguities on the form made it difficult for their determine if the employee’s pattern of (additional time must be allowed where FMLA leave is consistent with their the employee is unable to obtain the health care providers to address deficiencies noted by their employers. condition, or possible misuse. However, additional information despite diligent as noted in the RFI Report, the

good faith efforts). Under the current 63 Department cannot assess from the rule no written statement from the The 2000 Westat Report, Table 2.3, p. 2–5. 64 The 2000 Westat Report, Table A2–6.3, p. A– record how much leave taking is actual employer is necessary. 2–51. ‘‘abuse’’ and how much is legitimate, In § 825.306 the Department is 65 The net savings of 15 minutes includes: 1) the and therefore can not estimate what proposing several revisions to the savings associated with extending the time allowed impact this proposal would have on the medical certification form, to implement to ‘‘process’’ medical certifications from two to five 66 days (providing more time will reduce the number alleged misuse of FMLA leave. the statutory requirements for of mistakes involved in the medical certification ‘‘sufficiency’’ of the medical process and time required to address and correct 66 The Department received a number of certification as set forth in 29 U.S.C. those mistakes); plus 2) the time saved by allowing comments in response to the RFI that suggest some 2613(b) and to make it easier for health employers to contact the employee’s health care employees may be misusing FMLA leave. For provider directly; less 3) the additional time and example, a number of commenters stated that some care providers to understand and cost that employers will have to take to provide a employees appear to be misusing the FMLA rules complete. The Department has revised written explanation of why a medical certification to secure for themselves a preferred schedule (see its optional form (Form WH–380) for is incomplete or insufficient. Continued

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Current § 825.310(c) states that a fitness-for-duty certification, and this provision will likely cost workers about fitness-for-duty certification need only additional time will cost an average of $6.6 million per year.75 be a simple statement of the employee’s $51.06 per hour.69 Thus, health care To estimate the impact of these ability to return to work. The proposed providers are likely to incur about $4.7 additional certifications on employers, provision allows a fitness-for-duty million in additional costs and these the Department assumed that it would certification similar to that of the initial costs are likely to be shifted to take an additional 30 minutes of a medical certification of the FMLA leave. employees in the form of higher fees for ‘‘compensation and benefits The Department is also proposing in filling out the certifications.70 specialist’s’’ time at a cost of $36.51 per § 825.310(g) that an employer be Although employers will take longer hour to request and process each permitted to require an employee to to review these certifications, the certification. Based upon 132,000 furnish a fitness-for-duty certificate Department assumes that these costs fitness-for-duty certifications, this will every 30 days if an employee has used will be offset by the ability of employers result in about $2.4 million in intermittent leave during that period to directly contact the workers’ health additional costs for employers. and reasonable safety concerns exist. care providers. Although the net impact of the For example, if a bus driver takes The proposal in § 825.310(g) to permit revisions discussed in this subsection intermittent leave for a serious health an employer to require an employee to will be a net cost of about $2.4 million condition that may influence his or her furnish a fitness-for-duty certificate for employers and $11.3 million for ability to drive safely over the road, then every 30 days if an employee has used employees, the proposed revisions to a fitness-for-duty certification is intermittent leave during that period § 825.310(g) will increase workplace permitted. Finally, the Department is and reasonable safety concerns exist is safety by making sure that workers are proposing in § 825.310(c) that, likely to impact very few workers. The healthy enough to return to work and do consistent with the HIPAA Privacy 2000 Westat Report found that 52.4 not pose a safety risk to themselves and Rule, employers may contact an percent of workers took leave for their others. However, data limitations inhibit employee’s health care provider own serious health condition and 23.9 the Department from estimating the directly, rather than through a third- percent of those workers took it number of workers who may be party health care provider which intermittently.71 The Department impacted by this proposal, or represents the employer, for purposes of assumes that 5 percent of these leave- quantifying the resulting safety benefit. clarifying and authenticating the fitness- takers, or 44,000 workers, will be Summary of Impacts for-duty certification. required to have a fitness-for-duty The Department estimates that the These proposed changes have several certification where reasonable safety proposed revisions will result in a total important impacts. First, they would concerns exist 72 in order to return to first year net costs of about $26.1 better protect the safety and health of work from intermittent leave (i.e., 7.0 million, and a net savings of about $33.9 workers taking leave, and their million workers taking FMLA leave × million, each year thereafter (and this coworkers. Second, § 825.310(c) will 52.4% × 23.9% × 5.0% = 44,000).73 On does not include the additional savings reduce administrative burdens. Third, average the Department assumes these expected in the time-sensitive high- the proposed change to § 825.308(e) will 44,000 workers will be required to impact industries that are discussed in reduce uncertainty in the workplace by provide three fitness-for-duty permitting an employer to determine if the next section). certifications for the intermittent leave For employers, the most significant an employee’s pattern of leave is they take, and obtaining each of these costs will be the first year cost of consistent with the serious health 132,000 certifications will cost an reviewing and implementing the condition.67 average of $50.74 Thus, the revised The additional information needed for proposed revisions and the cost of providing employees with additional a fitness-for-duty certification is likely 69 Average cost of physicians’ assistants from the to result in additional costs. The 2000 Bureau of Labor Statistics, National Compensation and more specific notifications. After Westat Report found that 52.4 percent of Survey, 2005. The average hourly wage was the first year, however, these costs will multiplied by 1.4 to account for benefits. be more than offset by the reduction in workers took leave for their own serious 70 Comments to the RFI indicate that many health health condition;68 and the Department administrative costs and increased care providers are now charging fees for FMLA productivity resulting from employees assumes that 10 percent of these leave- certifications. It should be noted that the takers, or 367,000 workers, are required Department expects the majority of these fees will providing better notice of their need for be paid by workers’ health insurance. According to FMLA leave (see previous discussion of to have a fitness-for-duty certification to the Bureau of Labor Statistics, 2007 National return to work (i.e., 7.0 million workers §§ 825.302, 825.303 and 825.304). Compensation Survey, unpublished data, 90 Although the vast majority of FMLA × 52.4% × 10.0% = 367,000). Their percent of establishments with 50 or more leave-takers will see no difference, the health care providers will have to take employees offer health care benefits, and 81 percent of workers in those establishments have access to Department estimates that employees an additional 10 minutes to provide the those health care benefits. Further, employers with will incur $11.3 million in additional additional information on the proposed 50 or more employees paid for 81 percent of health expenses related to taking FMLA leave, insurance premiums for single coverage, and 73 primarily as the result of the increased Chapter IV, Section B, of the RFI Report, 72 FR at percent for family coverage. 35575). However, the RFI Report also noted that the 71 The 2000 Westat Report, Table 2.3, p. 2–5; and number of certifications that they will increase in the use of unscheduled intermittent those that answered yes to Question A5B of have to provide their employers. FMLA leave seen in the data submitted by some Westat’s employee Questionnaire. However, since these costs are primarily employers could be due to other factors, such as 72 See the preamble for a discussion and examples related to health care, a large portion is workers suffering from the adverse health effects of the term ‘‘reasonable safety concerns.’’ associated with the stress of staffing shorthanded 73 The Department assumed a lower rate here likely to be paid by the employee’s operations (see Chapter XI, Section L, of the RFI because of the additional ‘‘reasonable safety Report, Id. at 35635). concern’’ requirement on employer’s ability to forms, which will probably cost less than $50. 67 A number of comments to the RFI questioned require a fitness-for-duty certification for Other workers will, of course, require medical employee leave patterns. intermittent leave. examinations, which will probably cost more than 68 The 2000 Westat Report, Table 2.3, p. 2–5. The 74 The Department assumes that workers with $50. establishment survey also found that 37.8 percent chronic conditions are under doctors’ care so that 75 It should be noted that the Department expects of FMLA leave-takers took leave for their own for most workers the added cost of the certifications the majority of these costs will be paid by workers’ serious health condition; Table 3.8, p. 3–16. will only be the charge for the doctor to fill out the health insurance. See footnote 70.

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health insurance, some of which is more employees offer health care paid for 81 percent of health insurance financed by employers. According to the benefits, and 81 percent of workers in premiums for single coverage, and 73 Bureau of Labor Statistics, 2007 those establishments have access to percent for family coverage.76 National Compensation Survey, 90 those health care benefits. Further, Table 6 presents a summary of the percent of establishments with 50 or employers with 50 or more employees impacts discussed above.

TABLE 6.—SUMMARY OF THE MAJOR IMPACTS OF THE PROPOSED REVISIONS

Cost to Employees Provision employers or health in ($ millions) ($ millions)

Reviewing and Implementing Revisions * ...... $60.0 N/A § 825.300 ...... 139.0 N/A § 825.302, § 825.303 and § 825.304 ...... ¥121.8 N/A § 825.305, § 825.306 and § 825.307 ...... ¥64.8 N/A § 825.308 and § 825.310 ...... 2.4 $11.3 First Year Impact of Major Revisions ...... 14.8 11.34 Recurring Impact of Major Revisions ...... ¥45.2 11.3 * First Year Impact, only. Source: U.S. Department of Labor.

Although these impacts are unable to plan for the absence of a high- value of the worker’s average output or substantial, the Department has impact employee in one of these wage. For example, a worker’s absence determined that they do not account for industries because of late notification, may cause expensive equipment and all of the impacts that can be reasonably the following disruptive events can other workers to be idled. In these anticipated from the proposed revisions. occur: situations, the worker’s average The Department expects that the impact • Manufacturing assembly lines may compensation or productivity cannot be that the revisions will have in the highly be interrupted if there is not a stand-by used to estimate the total welfare cost of time-sensitive operations will add to the employee to take the absent employee’s the absence. benefits. Analyses of these impacts are place. • ‘‘Data on the productivity impact of FMLA, presented below, however, because of Passengers are delayed and while potentially probative, cannot by itself data limitations the Department has not productivity losses increase if an airline be used to estimate welfare effects accurately. attempted to quantify these benefits. pilot, flight attendant, bus driver, or While it is broadly true that reductions in train engineer does not show up for productivity reduce economic welfare, the Impact of the Revisions on Highly Time- work at their expected time. magnitude of the reduction depends on how Sensitive Operations • Adequate public safety may not be the effect is distributed across inputs and Comments in response to the RFI provided when police officers, industries. A regulation that reduces labor indicate that firms in industries with emergency dispatch workers, fire productivity, for example, will have a larger time-sensitive operations incur greater fighters, and paramedic shifts are not impact on economic welfare in industries where production requires ‘‘fixed costs than the typical establishments. fully covered because of inadequate proportions’’ of capital and labor (e.g., air These vulnerable industries include notice. transport, which requires at least one pilot manufacturing, health care, The conventional economic and one co-pilot per airplane) than in transportation, public safety, and assumption is that the wage rate industries where capital can easily be communications. For example, represents the value of the marginal substituted for labor. Similarly, a reduction unexpectedly absent employees in these product for the occupation and/or the in total factor productivity in an industry industries can disrupt assembly lines for industry. This was the reason in the producing products for which there are few manufacturing, delay the take-off of previous sections that wage rates were economic substitutes will have a larger effect commercial airliners, and jeopardize used as a proxy of the cost of the on economic welfare than one affecting an industry producing a product with many adequate staffing in public safety disruption caused by the absence of a substitutes. In the latter case, consumers will 77 positions. This section discusses the worker taking unscheduled FMLA simply shift their purchases away from the impacts the proposed revisions will leave. However, this assumption does products of the less productive industry, have on highly time-sensitive not hold in highly time-sensitive suffering little or no loss in consumer operations. operations because of the asymmetrical surplus. For these and other reasons, Untimely notification of an absence of nature of their operations. economists do not generally attempt to a high-impact employee can have a Workers’ wages are primarily based measure the impact of policies on economic more costly effect in highly time- upon their average output. Yet, in time- welfare effects by tracking their effects on 78 sensitive industries than others. sensitive operations the absence of a productivity.’’ Examples provided in response to the single worker can sometimes result in This situation is akin to the peak RFI indicate that if an employer is disruptions that cost far in excess of the demand situation at an electric utility

76 Bureau of Labor Statistics, National receive a slow response to an emergency call.’’ behaviors mean that children are often left waiting Compensation Survey, 2007, unpublished data. Fairfax County Public Schools provided the on street corners in all weather for some other bus 77 For example, New York City noted: ‘‘The example of school bus drivers. ‘‘[T]he essence of a driver.’’ For a complete discussion, see Section K school bus driver’s job is to deliver children to situation is particularly ominous when the of Chapter XI of the Department’s Report on the RFI school on time and safely. A few bus drivers have (72 FR at 35632). employee works in a safety-sensitive position, such used chronic conditions such as CFS, depression, 78 as 911 operators, or other employees requiring face- or sleep problems as an excuse not to report on time Jeffrey A. Eisenach, Assessing the Costs of the to-face relief, because if the person’s shift is not able and not to call in when they will be late. They Family and Medical Leave Act, Criterion to be covered by a colleague who in some instances claim that their ‘condition’ precludes them from Economics, February 16, 2007, p. 6. (Doc. 10172A is required to work overtime, then the public may providing notice or from being on time. These in response to RFI.)

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company. Most customers are charged mother to regularly scheduled * * * exigencies.’’ Because a significant rates equal to the average cost of power treatments. However, it is a huge burden number of United States military are generation. During periods of peak for management to cover for an currently on active duty or call to active demand (when the marginal high-cost employee who is certified for duty status, the Department is fully equipment is pressed into service and intermittent leave for chronic * * * aware of the need to issue regulations when the utility is sometimes forced to [conditions] and who calls in with no under the military family leave buy power to meet customer demands), advance notice * * * especially in provisions of H.R. 4986 as soon as the utility may take a loss on the sale time-sensitive/service-related possible and is seeking public comment of power. However, this loss is made up industries.’’ 80 on any issues related to military family when demand drops so that the utility In many situations, the absence of just leave that may need to be addressed in can generate the needed power at a a few employees can have a significant final regulations. much lower rate. This is why electric impact. For example, with respect to This appendix to the PRIA indentifies utilities offer customers variable rates unscheduled intermittent leaves, some the potential number of covered and tied to overall power demand. By employers find they have to over staff charging higher rates during periods on a continuing basis just to make sure eligible workers who may be impacted when power is more expensive to they have sufficient coverage on any by the military family leave provisions supply (so-called peak load pricing), particular day (such as hourly positions of H.R. 4986. Commenters are invited to this pricing structure motivates in manufacturing, public transportation, submit any data relating to the customers to cut back on their power customer service, health care, call economic impact of the military family use during periods of high or peak centers, and other establishments that leave provisions of H.R. 4986. demand. operate on a 24/7 basis). Some Estimating such impacts is required The U.S. labor market is not perfectly employers require their employees to under Executive Order 12866. competitive. For instance, some labor work overtime to cover the absent Impact of Section 585(a) of H.R. 4986 on laws and regulations limit the flexibility employee’s work. Both of these options the Number of FMLA Covered 81 of employers and employees to enter result in additional costs. Employers and Eligible Workers into some mutually agreeable Unfortunately, without an accurate arrangements. Moreover, most production function for each of these Section 585(a) of H.R. 4986 has no employers cannot use peak load pricing industries, it is not possible to impact on the number of establishments to vary the wages paid to their quantitatively estimate the impact that covered by the FMLA, or on the number employees based upon the demand at the absence of these workers, including of workers eligible to take FMLA. that moment. unforeseen absences, will have on the Therefore, many of the estimates [The] FMLA may inhibit the market’s time-sensitive operations. However, to presented in the Chapter 1 of the PRIA ability to allocate labor efficiently among the extent the proposed rule reduces the (e.g., number of covered employers, firms (and jobs among workers). Both firms cost of uncertainty in staffing, time- covered establishments, workers and workers display heterogeneity with sensitive operations are likely to see employed at covered establishments and respect to values they place on absenteeism. larger productivity benefits than other FMLA eligible workers) remain the In some industries, employee absenteeism industries. same. will have a relatively small effect on firms’ overall ability to operate, and therefore entail Appendix A: Potential Impact of Section Impact of Section 585(a) of H.R. 4986 on a relatively modest financial impact. In other 585(a) of H.R. 4986, the National the Number of Workers Who May Take sectors, absenteeism hinders production Defense Authorization Act for FY 2008 FMLA Leave substantially by, for example, diminishing the productivity of other workers and Introduction Under the new military family leave equipment. If the effect of worker absence on As discussed in the preamble above, provisions of H.R. 4986, workers who a company’s productivity is relatively Section 585(a) of H.R. 4986, the are eligible to take FMLA leave will be modest, economists classify that firm as operating a so called linear production National Defense Authorization Act for permitted to take protected leave under technology. Firms whose productivity is FY 2008, amends the FMLA to provide two new circumstances (i.e., to care for more sensitive to absenteeism are said to leave to eligible employees of covered covered servicemembers, or for any employ assembly line technologies. employers to care for covered qualifying exigency arising out of the Companies relying on assembly line servicemembers, or for any qualifying fact that a covered family member is on production techniques depend to a much exigency arising out of the fact that a active duty or has been notified of an greater extent on coordinated efforts of labor covered family member is on active impending call to active duty status in and machinery. Therefore, the absence of a duty or has been notified of an support of a contingency operation). single employee has a ripple effect impending call to active duty status in throughout the organization.79 Since both of these circumstances are support of a contingency operation. The related to family relationships with The RFI record suggests that provisions of H.R. 4986 providing servicemembers, the first step in intermittent FMLA leave can have FMLA leave to care for a covered estimating the number of workers who significant impacts on time-sensitive servicemember became effective on may take FMLA Leave under the business models. For example, the January 28, 2008, when the law was military family leave provisions of H.R. United States Postal Service reported enacted. The provisions of H.R. 4986 4986 was to develop a family profile of ‘‘[i]n a time-sensitive environment providing for FMLA leave due to a servicemembers. * * * unscheduled leave presents qualifying exigency arising out of a Using data from the Defense significant operational challenges.’’ The covered family member’s active duty (or Manpower Data Center, the Current United Parcel Service, Inc. stated call to active duty) status are not ‘‘employers typically can arrange effective until the Secretary of Labor Population Survey (CPS), and the coverage for an employee who might issues regulations defining ‘‘qualifying Decennial Census of Population, require intermittent leave to take his CONSAD developed a model to estimate 80 See RFI Report, 72 FR at 35632. the number of parents, spouses, and 79 Id. at 8. 81 Id. adult sons and daughters of

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servicemembers.82 A summary of the CONSAD estimated the proportion of covered servicemember’’ to ‘‘a total of methodology used by CONSAD to servicemembers with spouses using data 26 workweeks of leave during a 12- develop its estimates of the number of from the Defense Manpower Data month period to care for the parents, spouses, and sons and Center. servicemember.’’ This provision will be daughters of servicemembers eligible to CONSAD estimated the number of codified in the FMLA at 29 U.S.C. take FMLA leave is presented below. dependent adult children among 2612(a)(3). CONSAD estimated the number of servicemembers in different age ranges According to the President’s 83 parents by first computing, for CPS based upon data from the CPS. First, Commission on Care for America’s reference persons in a set of age ranges CONSAD estimated the number of Returning Wounded Warriors, 3,082 that are compatible with the age ranges dependent children among servicemembers have been seriously of servicemembers in general, the servicemembers in different age ranges. injured since the beginning of hostilities Then based on those estimates, in Iraq, or about 750 seriously injured numbers and proportions of married 87 males living with spouses, married CONSAD estimated the number of servicemembers per year. Assuming females living with spouses, married children 16 years of age and over with that an equal number of servicemembers males living separately, married females parents in the age range of the military have been seriously injured during preparation or training for combat, the living separately, separated males, servicemembers to produce total annual number is about 1,500.88 separated females, divorced males, distributions of the number of children Further, preliminary estimates from the divorced females, widowed males, 16 years of age and over among Department of Defense suggest that the widowed females, never married males, servicemembers in each age range. DOD Disability System separates (with and never married females reported in To calculate employment rates for benefits) 14,000 servicemembers the CPS for each age range. parents and spouses who might need to take military family leave, CONSAD annually. Consequently, at any one time Next, CONSAD made adjustments for used the employment rates for age the Department estimates that there are the expected separate inclusion of both ranges expected to be associated with 1,500 to 14,000 seriously injured parents of the same child or children in the age range of the military servicemembers whose potential two different categories (married living servicemembers.84 CONSAD assumed caregivers may be eligible for FMLA separately, separated, or divorced), for that the employment rate of adult leave under Section 585(a) of H.R. 4986. the expected remarriage of widowed or children who might need to take Based on the assumption that the age divorced parents, and for the expected military family leave was 66 percent.85 distribution of seriously wounded death of both parents of some children. CONSAD also assumed that 60 percent servicemembers is the same as the age Then, CONSAD summed the adjusted of employed workers who might need to distribution of all military estimates within each age range, to take military family leave would be servicemembers deployed in Iraq or produce estimates of the proportion of FMLA covered and eligible.86 Afghanistan, the Department used people with parents in that age range CONSAD’s model to compute the who can be expected to have zero, one, Impact of Leave to Care for Covered numbers of servicemembers with or two living parents. For the estimate Servicemembers With Serious Injuries serious injuries or illnesses who will of the number of guardians and persons or Illnesses have no potential caregivers, and one, in loco parentis, CONSAD assumed that Section 585(a) of H.R. 4986 amends two, three, four, or five or more all servicemembers age 17 and 18 with the FMLA to permit an ‘‘an eligible potential caregivers who may be eligible no living parents would have one employee who is the spouse, son, for FMLA leave.89 The results of this guardian or a person in loco parentis. daughter, parent, or next of kin of a analysis are presented in Table A–1.

TABLE A–1.—THE DISTRIBUTION OF SERVICEMEMBERS WITH SERIOUS INJURIES OR ILLNESSES BY AGE AND THE NUMBER OF POTENTIAL CAREGIVERS

Number of servicemembers with serious injuries or ill- Age of Number of nesses with n caregivers, where n = service-member service- members 0 1 2 3 4 5+

17–18 ...... 63 0 6 57 1 0 0

82 CONSAD Report, 2007, available at: http:// be incapable of self-care and would presumably be overall workforce and the employment-population www.wagehour.dol.gov. CONSAD developed unable to care for a parent with a serious injury or ratio of older workers is significantly lower than estimates for S. 1894 which did not include illness. Further, very few parents would have that of the overall workforce (e.g., the employment coverage of ‘‘next of kin’’ or ‘‘nearest blood relative’’ FMLA-eligible sons or daughters who are called to population ratio of workers 55 years and over was as H.R. 4986 does. active duty in the armed forces because, to be 37.4 in 2007). 83 The Department’s estimates are based upon the covered by the current FMLA definition of ‘‘son or 86 The estimated 77.1 million FMLA eligible dictionary definition of son and daughter rather daughter,’’ such sons or daughters must either be workers under Title I of the FMLA plus the 2.6 than the definition in the FMLA. As was discussed (1) under the age of 18 or (2) 18 years or older and million Federal employees covered by Title 2 of the in the Preamble above, this is an important incapable of self-care. (Only about 35,000 of the 1.4 FMLA comprise about 60 percent of U.S. civilian distinction, since the FMLA defines ‘‘son or million active duty servicemembers are under 18 employment. daughter’’ to mean a biological, adopted, or foster years of age). 87 Department of Labor estimate based on 3,082 child, a stepchild, a legal ward, or a child of a 84 divided by 4.1 years (the elapsed time for the person standing in loco parentis, who is either For a more detailed explanation of the under 18 years of age, or 18 years of age or older methodology see Appendix A in the CONSAD Commission’s estimate). and incapable of self-care because of a mental or Report, 2007. 88 This assumption is based on preliminary physical disability. Under the definition of ‘‘son or 85 According to the Bureau of Labor Statistics, the discussions between the Departments of Defense daughter’’ in FMLA, very few FMLA-eligible sons employment population ratio for civilians 16 years and Labor. or daughters would be able to provide care to a and over was 63% in 2007. CONSAD adjusted this 89 Based on the methodology in the CONSAD covered servicemember with a serious injury or upwards by 5% (3 percentage points) to 66% to Report, 2007. It is possible for a seriously injured illness since, in order to meet the FMLA eligibility account for the fact the working children of servicemember to have more than one caregiver criteria, a son or daughter ages 18 and over must servicemembers are significantly younger than the such as a spouse, parent, and brother or sister.

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TABLE A–1.—THE DISTRIBUTION OF SERVICEMEMBERS WITH SERIOUS INJURIES OR ILLNESSES BY AGE AND THE NUMBER OF POTENTIAL CAREGIVERS—Continued

Number of servicemembers with serious injuries or ill- Age of Number of nesses with n caregivers, where n = service-member service- members 0 1 2 3 4 5+

19–20 ...... 298 0 25 259 15 0 0 21–22 ...... 233 0 19 190 25 0 0 23–24 ...... 204 0 14 145 44 0 0 25–26 ...... 165 0 9 99 56 0 0 27–28 ...... 128 0 7 67 53 0 0 29–30 ...... 103 0 5 47 51 0 0 31–32 ...... 64 0 3 25 36 0 0 33–34 ...... 63 0 3 25 35 0 0 35–36 ...... 49 0 2 18 27 1 0 37–39 ...... 53 0 3 17 27 4 1 40–44 ...... 55 0 3 16 24 8 4 45–49 ...... 19 0 1 5 6 4 3 50+ ...... 7 0 1 2 2 2 2

Total ...... 1,500 0 98 972 402 18 10 Note: Some numbers may not sum due to rounding. Source: U.S. Department of Labor, based on CONSAD 2007.

Of the 1,500 servicemembers with 14,000 servicemembers annually. Using an impending call or order to active serious injuries or illnesses, 98 are CONSAD’s model and assuming each duty) in the Armed Forces in support of likely to have one caregiver, 972 are seriously injured and ill servicemember a contingency operation.’’ This likely to have two caregivers, 402 are would have at least one FMLA-eligible provision will be codified in the FMLA likely to have three caregivers, and 28 caregiver, the Department estimates at 29 U.S.C. 2612(a)(1)(E). are likely to have four or more there would be about 17,700 potential Preliminary estimates from the caregivers. Based upon Table A–1, the caregivers for servicemembers who are Department of Defense suggest that Department estimates that under the separated through the DOD Disability there are approximately 339,000 assumption of 1,500 servicemembers System every year. servicemembers currently deployed on with serious injuries or illnesses each Thus, the Department estimates that or activated for contingency operations. year, 3,370 caregivers would be between 1,900 and 17,700 potential Based on these numbers, the available (i.e., 3,370 = 98 + 972 × 2 + caregivers of servicemembers with Department used the model in the 402 × 3 + 18 × 4 + 10 × 5); however, serious injuries or illnesses would be CONSAD Report to develop estimates of not all of these caregivers are employed. eligible for protected FMLA leave under the number of FMLA covered and Utilizing the CONSAD model described Section 585(a) of H.R. 4986. eligible workers who would take leave above, the Department estimates that for a qualifying exigency.91 Based on the Impact of Leave for Qualifying Exigency there is about 1,900 potential FMLA age distribution of active duty covered and eligible caregivers for the Section 585(a) of H.R. 4986 also adds servicemembers, the Department 1,500 seriously injured and ill an additional qualifying reason to take estimated the number of currently servicemembers under Section 585(a) of FMLA leave: ‘‘[b]ecause of any deployed or activated personnel in H.R. 4986.90 qualifying exigency (as the Secretary contingency operations by age and Alternatively, preliminary estimates shall, by regulation, determine) arising number of family members potentially from the Department of Defense suggest out of the fact that the spouse, or a son, eligible for qualifying exigency leave.92 that the DOD Disability System daughter, or parent of the employee is The results of this analysis are separates (with benefits) or retires on active duty (or has been notified of presented in Table A–2.

TABLE A–2.—DISTRIBUTION OF SERVICEMEMBERS DEPLOYED ON OR ACTIVATED FOR ACTIVE DUTY IN SUPPORT OF CONTINGENCY OPERATIONS BY AGE AND NUMBER OF COVERED FAMILY MEMBERS

Thousands Thousands of servicemembers with n family members, Age of of where n = service-member service- members 0 1 2 3 4 5+

17–18 ...... 9 0 1 8 0 0 0 19–20 ...... 39 0 3 34 2 0 0 21–22 ...... 49 0 4 40 5 0 0 23–24 ...... 43 0 3 31 9 0 0

90 For a more detailed explanation of the servicemember would be likely to have at least one active duty or on call to active duty in support of methodology used to develop this estimate see FMLA-eligible caregiver. a contingency operation to have more than one Appendix A in the CONSAD Report, 2007. Further, 91 CONSAD Report, 2007, available at: http:// family member (such as a spouse, parent, and since CONSAD’s analysis did not account for the www.wagehour.dol.gov. brother or sister) eligible for leave for a qualified eligibility of next of kin, the Department also 92 Based on the methodology in the CONSAD exigency. assumed each seriously injured and ill Report, 2007. It is possible for a servicemember on

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TABLE A–2.—DISTRIBUTION OF SERVICEMEMBERS DEPLOYED ON OR ACTIVATED FOR ACTIVE DUTY IN SUPPORT OF CONTINGENCY OPERATIONS BY AGE AND NUMBER OF COVERED FAMILY MEMBERS—Continued

Thousands Thousands of servicemembers with n family members, Age of of where n = service-member service- members 0 1 2 3 4 5+

25–26 ...... 35 0 2 21 12 0 0 27–28 ...... 27 0 1 14 11 0 0 29–30 ...... 22 0 1 10 11 0 0 31–32 ...... 19 0 1 8 11 0 0 33–34 ...... 19 0 1 7 11 0 0 35–36 ...... 18 0 1 6 10 1 0 37–39 ...... 23 0 1 8 12 2 0 40–44 ...... 25 0 1 7 11 3 2 45–49 ...... 8 0 1 2 3 2 1 50+ ...... 3 0 0 1 1 1 1

Total ...... 339 0 21 197 108 8 4 Note: Some numbers may not sum due to rounding. Source: U.S. DOL/Employment Standards Administration estimates based upon the model used in CONSAD 2007, and Department of De- fense data.

Of the 339,000 servicemembers upon the potential increased number of qualifying circumstances permitted deployed on or activated for FMLA eligible workers with qualifying under Section 585(a) of H.R. 4986. contingency operations, about 21,000 reasons to take FMLA leave.94 However, Regulatory Flexibility Act are likely to have one covered family there are other factors that must be member, 197,000 are likely to have two considered. The Regulatory Flexibility Act requires that agencies prepare initial covered family members, 108,000 are • H.R. 4986 does not change the regulatory flexibility analyses for likely to have three covered family scope of the FMLA in terms of the members, and 12,000 are likely to have proposed rules unless they are not establishments covered or the eligibility expected to have a significant economic four or more covered family members. of workers. Many of the costs of the Based upon Table A–2, the Department impact on a substantial number of small FMLA are related to the coverage of the entities. 5 U.S.C. 603, 605(b). estimates 792,000 adult family members establishment or the eligibility of would be impacted by servicemembers’ The FMLA applies to public agencies workers rather than the number of and to private sector employers that call to active duty for a contingency workers taking leave. Since the former × employ 50 or more employees for each operation (i.e., 792 = 21 + 197 2 + 108 will not change, assuming a 5 percent × 3 + 8 × 4 + 4 × 5); however, not all working day during 20 or more calendar cost increase may be an over-estimate. weeks in the current or preceding of these family members are employed. • Utilizing the CONSAD model described The Department estimates that the calendar year. 29 U.S.C. 2611(4). In above, the Department estimates that number of employees eligible to take addition, the FMLA excludes employees about 330,000 potential FMLA covered FMLA leave under the new military from eligibility for FMLA leave if the and eligible family members would be family leave provisions of H.R. 4986 total number of employees employed by eligible to take leave for any qualifying range from 332,000 to 348,000 workers. that employer within 75 miles of that exigency under Section 585(a) of H.R. However, just as all workers eligible to worksite is less than 50. 29 U.S.C. 2611(2)(B)(ii). As explained in the 4986.93 take FMLA leave do not take FMLA leave when they or a qualified family FMLA’s legislative history, ‘‘[t]he act Estimated Impacts member have a serious health exempts small businesses and limits Based upon the preceding analyses, condition,95 similarly, not all employees coverage of private employers to the Department estimates that the eligible to take FMLA leave under the employers who employ 50 or more number of employees eligible to take new military family leave provisions of employees for each working day during FMLA leave under Section 585(a) of H.R. 4986 will take such leave. 20 or more calendar weeks in the H.R. 4986 range from 332,000 to 348,000 Therefore, assuming a 5 percent cost current or preceding calendar year. workers. Although some of these increase may be an over-estimate. * * * The employer must, in addition, employ at least 50 people within a 75- workers may already be taking FMLA The Department requests information mile radius of the employee’s worksite.’’ leave for other covered conditions, some and data related to the impacts of S. Rep. No. 103–3, at 2 (1993). may not. If the leave usage among the workers taking FMLA leave and how The Department has examined the workers eligible to take FMLA leave these impacts might apply to workers impact of these proposed revisions on under the new military family leave taking FMLA under the additional all the firms covered under the FMLA, provisions of H.R. 4986 and the costs of including those with 50 to 500 such leave are similar to current FMLA 94 The Department estimates that 7.0 million employees, and has estimated the net leave takers, then one would expect the workers took FMLA leave under the current statute in 2005; 332,000 to 348,000 additional workers impact of the proposed changes would costs of the FMLA to potentially reduce the overall costs for all firms, increase by as much as 5 percent based represents an increase of 4.7 to 5.0 percent. 95 For example, only one family member may both large and small. Most small choose to act as the caregiver even though other businesses (establishments), 89.4 93 For a more detailed explanation of the family members are eligible to take family leave methodology used to develop this estimate see (e.g., two spouses may be eligible to take FMLA percent, were excluded from coverage Appendix A in the CONSAD Report, 2007, available leave for a seriously ill child but only one may under the FMLA by Congress. However, at: http://www.wagehour.dol.gov. choose to do so). 6.3 percent of establishments with less

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than 50 employees are covered by the approximately $135 million in 2007 employer, including State and local Act due to the ‘‘75 mile’’ provision in dollars. governmental entities, of $13 in the first the statute. The Department estimates year,100 and a net recurring savings of (1) Authorizing Legislation that 633,000 of the 1.1 million covered $40 per such entities every year after establishments, or 55.8 percent, have This rule is issued pursuant to Family that.101 Consequently, the Department less than 50 employees. Another and Medical Leave Act of 1993 (FMLA), concludes that the primary impact of 481,000 establishments have 50 to 500 Public Law 103–3, 107 Stat. 6 (29 U.S.C. the proposed revisions will be to reduce employees. Clearly, this is a substantial 2601 et seq.). The FMLA entitles eligible the burden of the FMLA regulations on number (although small percentage— employees of covered employers to take employers, including State and local 10.6%) of small employers.96 up to a total of twelve weeks of unpaid governmental entities. On average the proposed rule is leave during a twelve month period for The most significant costs associated estimated to have a net cost for these the birth of a child; for the placement of with the proposed revisions will be the small businesses of $13 in the first a child for adoption or foster care; to first year cost of reviewing and year,97 and a net recurring savings of care for a newborn or newly-placed implementing the proposed revisions child; to care for a spouse, parent, son $40 per small business every year after ($60 million) and the cost of providing or daughter with a serious health that.98 Consequently, the Department employees with additional and more condition; or when the employee is has determined that because the specific notifications ($139 million). unable to work due to the employee’s proposed revisions primarily clarify the Based upon their share of covered own serious health condition. See 29 existing rules and reduce overall costs employment, the share of these first year U.S.C. 2612. costs for State and local governmental to all firms (both large and small), the Title I of the FMLA applies to private proposed rule as drafted will not have entities will be about $50 million, and sector employers of fifty or more the share of the first year costs for the a significant economic impact on a employees, public agencies and certain substantial number of small entities private sector will be about $149 Federal employers and entities, such as 102 within the meaning of the Regulatory million. the U.S. Postal Service and Postal Under the worst case assumption that Flexibility Act and the Department has Regulatory Commission. While Title I no offsetting savings will occur to the certified to this effect to the Chief generally covers employers with 50 or State and local entities during the first Counsel for Advocacy of the SBA. more employees, public agencies are year, these $50 million first year costs Therefore, an initial regulatory covered employers without regard to the would be equivalent to raising State and flexibility analysis is not required for number of workers employed. local payrolls by less than one- this proposed rule. The FMLA references the definition of hundredth percent (0.01 percent) of the However, the new military family employee in the Fair Labor Standards $591 billion in total payrolls103 for those leave provisions of H.R. 4986 will result Act, 29 U.S.C. 203(e) so that most entities for a single year. Therefore, we in an increase in the annual number of individuals employed by a State, have tentatively concluded that even FMLA leaves taken. If these additional political subdivision of a State, or under the worst case scenario, this leaves significantly increase the interstate governmental agency meet the rulemaking does not increase economic impacts imposed by the definition of employee. expenditures by State, local, and tribal FMLA regulation on a substantial (2) Cost-Benefit Analysis governments above the current number of small businesses, then a unfunded mandate threshold. regulatory flexibility analysis will be Based upon Table 2.2 in the CONSAD Under the worst case assumption that required. Report, the Department estimates that no offsetting savings will occur to the approximately 90,000 State and local private sector during the first year, we Unfunded Mandates Reform Act governmental entities will be affected by estimate that the first year impacts do the proposed rule. Nationwide, these The Unfunded Mandates Reform Act exceed the approximately $135 million entities employ more than 19 million of 1995, 2 U.S.C. 1501 et seq, requires threshold under the Act for the private workers and their annual payrolls are agencies to prepare a written statement sector. The Department feels that this that identifies the: (1) Authorizing $591 billion.99 The Department’s Preliminary scenario is very unlikely, however, and legislation; (2) cost-benefit analysis; (3) that the net expenditures of the private macro-economic effects; (4) summary of Regulatory Impact Analysis (PRIA) includes estimates of the net costs sector will be less than the Unfunded State, local, and tribal government Mandates threshold. The Department input; and (5) identification of associated with the proposed rule. The Department estimates that the proposed specifically requests comment on this reasonable alternatives and selection, or conclusion. Nevertheless, we believe the explanation of non-selection, of the least revisions will result in a total first year net costs of about $26.1 million, and a costly, most cost-effective or least 100 This estimate is based on the first year costs burdensome alternative; for proposed net savings of about $33.9 million, each for all covered establishments of $14.8 million (see rules that include any Federal mandate year thereafter. Moreover, this does not Table 6 of the PRIA) and 1.1 million establishments include the additional savings expected (see Table 4 of the PRIA). [Note—these numbers are that may result in increased all employers, not just State and local government expenditures by State, local, and tribal in the time-sensitive high-impact operations such as public safety. entities.] governments, in the aggregate, or by the 101 On average the proposed rule is This estimate is based on the recurring savings private sector, of $100 million or more for all covered establishments of $45.2 million (see inflation adjusted in any one year, or estimated to have a net cost per Table 6 of the PRIA) and 1.1 million establishments (see Table 4 of the PRIA). 99 Estimates based upon Table 2.2 on page 7 of 102 State and local governmental entities employ 96 The Department of Labor based these estimates the 2007 CONSAD Report available at: http:// about one-quarter (19 million) of the 77 million on the Westat 2000 establishment survey data. www.wagehour.dol.gov. Estimates presented above workers covered by Title I of the FMLA. One 97 This estimate is based on the first year costs of were developed by summing the CONSAD quarter of $200 million is $50 million. $14.8 million (see Table 6 of the PRIA) and 1.1 estimates for Public Utilities, Public Transit, Public 103 See Table 2.2 on page 7 of the 2007 CONSAD million establishments (see Table 4 of the PRIA). Educational Services and Public Administration. Report. The $591 billion estimate was the sum of 98 This estimate is based on the recurring savings Note, however that CONSAD did not have an the payrolls in Public Utilities, Public Transit, of $45.2 million (see Table 6 of the PRIA) and 1.1 estimate for the number of establishments in public Public Educational Services and Public million establishments (see Table 4 of the PRIA). utilities. Administration.

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cost-benefit analysis provided pursuant PRIA does not include an assessment of applying uniform call-in procedures and to the requirements under Executive the impact of the new military family seeking medical re-certifications and Order 12866 for this economically leave provisions of H.R. 4986. The return to work certifications. The significant rulemaking would meet the Department anticipates that the new comments by State and local requirements for analysis under the military family leave provisions of H.R. government entities were considered by Unfunded Mandates Reform Act. 4986 will increase the annual number of the Department in developing this The above analysis does not include FMLA leaves taken. If these additional proposed rule and are addressed above an assessment of the impact of the new leaves substantially increase the under the sections of the rule on which military family leave provisions of H.R. economic impacts imposed by the they commented (see, e.g., preamble 4986. The Department anticipates that FMLA regulation, then the Department discussion of §§ 825.302, 825.303, the new military family leave provisions will appropriately reassess this 825.308, and 825.310). of H.R. 4986 will increase the annual conclusion for the final rule. number of FMLA leaves taken. If these (5) Least Burdensome Option or additional leaves increase the economic (4) Summary of State, Local, and Tribal Explanation Required Government Input impacts imposed by the FMLA The Department’s consideration of regulation on State and local entities, On December 1, 2006, the Department various options is described in the then the Department will appropriately published a Request for Information preceding section in the preamble. The revise this analysis for the final rule. (RFI) in the Federal Register (71 FR Department believes that it has chosen The FMLA does not provide for 69504). The RFI asked the public, the least burdensome option that Federal financial assistance or other including State, local, and tribal updates, clarifies, and simplifies the Federal resources to meet the governments, to comment on their rule. requirements of its intergovernmental experiences with, and observations of, mandates. The Federal mandate the Department’s administration of the Executive Order 13132 (Federalism) imposed by this proposed rule is not law and the effectiveness of the FMLA The proposed rule does not have expected to have a measurable effect on regulations. More than 15,000 federalism implications as outlined in health, safety, or the natural comments were received from workers, Executive Order 13132 regarding environment. family members, employers, academics, federalism. The proposed rule does not and other interested parties.105 (3) Macro-Economic Effects This have substantial direct effects on the input ranged from personal accounts, states, on the relationship between the Agencies are expected to estimate the legal reviews, industry and academic national government and the states, or effect of a regulation on the national studies, and surveys, to on the distribution of power and economy, such as the effect on recommendations for regulatory and responsibilities among the various productivity, economic growth, full statutory changes to address particular levels of government. employment, creation of productive areas of concern. The Department Executive Order 13175, Indian Tribal jobs, and international competitiveness published a Report on the comments Governments of United States goods and services, if received in response to the accurate estimates are reasonably Department’s RFI in June 2007 (see 72 This proposed rule was reviewed feasible and the effect is relevant and FR 35550).106 under the terms of Executive Order material. 5 U.S.C. 1532(a)(4). However, The Department received in response 13175 and determined not to have OMB guidance on this requirement to the RFI a number of comments from ‘‘tribal implications.’’ The proposed rule notes that such macro-economic effects various State and local government does not have ‘‘substantial direct effects tend to be measurable in nationwide entities across the country, including on one or more Indian tribes, on the econometric models only if the the City of Philadelphia, the City of relationship between the Federal economic impact of the regulation Gillette, the City of Portland , the City government and Indian tribes, or on the reaches 0.25 percent to 0.5 percent of of New York, the City of Los Angeles, distribution of power and gross domestic product, or in the range Ohio Department of Administrative responsibilities between the Federal 104 of $1.5 billion to $3.0 billion. A Services, the Ohio Public Employer government and Indian tribes.’’ As a regulation with smaller aggregate effect Labor Relations Association, the result, no tribal summary impact is not likely to have a measurable Commonwealth of Pennsylvania, the statement has been prepared. impact in macro-economic terms unless Indiana State Personnel Department, Effects on Families it is highly focused on a particular Spokane County, the University of geographic region or economic sector, Wisconsin-Milwaukee, Fairfax County The undersigned hereby certify that which is not the case with this proposed Public Schools, the University of this proposed rule will not adversely rule. Minnesota, Washington Metropolitan affect the well-being of families, as The Department’s PRIA estimates that Area Transit Authority, Metro Regional discussed under section 654 of the the total aggregate economic impact of Transit Authority (Akron, Ohio), the Treasury and General Government this proposed rule ranges from total first Port Authority of Allegheny County Appropriations Act, 1999. year net costs of about $26.1 million to (PA), the Transit Authority (Huntington, total net savings of about $33.9 million, Executive Order 13045, Protection of WV), and the Milwaukee Transport each year thereafter. Therefore, the Children Services. Many of these entities Department has determined that a full provided input, for instance, on Executive Order 13045, dated April macro-economic analysis is not likely to 23, 1997 (62 FR 19885), applies to any show any measurable impact on the 105 All comments are available for viewing via the rule that (1) is determined to be economy. However, the analysis in the public docket of the Wage and Hour Division of the ‘‘economically significant’’ as defined in Employment Standards Administration, U.S. Executive Order 12866, and (2) concerns 104 OMB Guidance on Implementing Title II of Department of Labor, 200 Constitution Avenue, an environmental health or safety risk S.1, March 31, 1995 Memorandum from Sally NW., Washington, DC 20210. Many comments are Kazten to the Heads of Executive Departments and also available on http://www.regulations.gov. that the promulgating agency has reason Agencies, available at http://www.fws.gov/policy/ 106 Also available at http://www.dol.gov/esa/whd/ to believe may have a disproportionate library/rgkatze.pdf. fmla2007report.htm. effect on children. This proposal is not

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subject to Executive Order 13045 Signed at Washington, DC, this 31st day of 825.212 Employee failure to pay health because, although this proposed rule January 2008. plan premium payments. addresses family and medical leave Victoria A. Lipnic, 825.213 Employer recovery of benefit costs. 825.214 Employee right to reinstatement. Assistant Secretary, Employment Standards provisions of the FMLA including the 825.215 Equivalent position. Administration. rights of employees to take leave for the 825.216 Limitations on an employee’s right birth or adoption of a child and to care Alexander J. Passantino, to reinstatement. for a healthy newborn or adopted child, Acting Administrator, Wage and Hour 825.217 Key employee, general rule. and to take leave to care for a son or Division. 825.218 Substantial and grievous economic daughter with a serious health For the reasons set out in the injury. 825.219 Rights of a key employee. condition, it has no environmental preamble, the DOL proposes to revise 825.220 Protection for employees who health or safety risks that may Title 29 part 825 of the Code of Federal request leave or otherwise assert FMLA disproportionately affect children. Regulations as follows: rights. Environmental Impact Assessment PART 825—THE FAMILY AND Subpart C—Employee and Employer Rights MEDICAL LEAVE ACT OF 1993 and Obligations Under the Act A review of this proposal in 825.300 Employer notice requirements. accordance with the requirements of the Subpart A—Coverage Under the Family and 825.301 Employer designation of FMLA National Environmental Policy Act of Medical Leave Act leave. 1969 (NEPA), 42 U.S.C. 4321 et seq.; the Sec. 825.302 Employee notice requirements for regulations of the Council on 825.100 The Family and Medical Leave Act. foreseeable FMLA leave. 825.303 Employee notice requirements for Environmental Quality, 40 CFR 1500 et 825.101 Purpose of the Act. 825.102 [Reserved] unforeseeable FMLA leave. seq.; and the Departmental NEPA 825.103 [Reserved] 825.304 Employee failure to provide notice. procedures, 29 CFR part 11, indicates 825.104 Covered employer. 825.305 Medical certification, general rule. that the proposed rule will not have a 825.105 Counting employees for 825.306 Content of medical certification. significant impact on the quality of the determining coverage. 825.307 Authentication and clarification of human environment. There is, thus, no 825.106 Joint employer coverage. medical certification. 825.107 Successor in interest coverage. 825.308 Recertifications. corresponding environmental 825.309 Intent to return to work. assessment or an environmental impact 825.108 Public agency coverage. 825.109 Federal agency coverage. 825.310 Fitness-for-duty certification. statement. 825.110 Eligible employee. 825.311 Failure to provide medical certification. Executive Order 13211, Energy Supply 825.111 Determining whether 50 employees are employed within 75 miles. Subpart D—Enforcement Mechanisms 825.112 Qualifying reasons for leave, This proposed rule is not subject to 825.400 Enforcement, general rules. general rule. Executive Order 13211. It will not have 825.401 Filing a complaint with the Federal 825.113 Serious health condition. Government. a significant adverse effect on the 825.114 Inpatient care. 825.402 Violations of the posting supply, distribution, or use of energy. 825.115 Continuing treatment. requirement. 825.116 [Reserved] Executive Order 12630, Constitutionally 825.403 Appealing the assessment of a 825.117 [Reserved] Protected Property Rights penalty for willful violation of the 825.118 [Reserved] posting requirement. 825.119 Leave for treatment of substance 825.404 Consequences for an employer This proposal is not subject to abuse. Executive Order 12630, because it does when not paying the penalty assessment 825.120 Leave for pregnancy or birth. after a final order is issued. not involve implementation of a policy 825.121 Leave for adoption or foster care. ‘‘that has takings implications’’ or that 825.122 Definitions of spouse, parent, son Subpart E—Recordkeeping Requirements could impose limitations on private or daughter, adoption, and foster care. 825.500 Recordkeeping requirements. property use. 825.123 Unable to perform the functions of the position. Subpart F—Special Rules Applicable to Executive Order 12988, Civil Justice 825.124 Needed to care for a family Employees of Schools Reform Analysis member. 825.600 Special rules for school employees, 825.125 Definition of health care provider. definitions. This proposed rule was drafted and Subpart B—Employee Leave Entitlements 825.601 Special rules for school employees, reviewed in accordance with Executive Under the Family and Medical Leave Act limitations on intermittent leave. Order 12988 and will not unduly 825.602 Special rules for school employees, 825.200 Amount of leave. limitations on leave near the end of an burden the Federal court system. The 825.201 Leave to care for a parent. academic term. proposed rule was: (1) Reviewed to 825.202 Intermittent leave or reduced leave 825.603 Special rules for school employees, eliminate drafting errors and schedule. duration of FMLA leave. ambiguities; (2) written to minimize 825.203 Scheduling of intermittent or 825.604 Special rules for school employees, litigation; and (3) written to provide a reduced schedule leave. restoration to ‘‘an equivalent position.’’ 825.204 Transfer of an employee to an clear legal standard for affected conduct alternative position during intermittent Subpart G—Effect of Other Laws, Employer and to promote burden reduction. leave or reduced schedule leave. Practices, and Collective Bargaining Agreements on Employee Rights Under List of Subjects in 29 CFR Part 825 825.205 Increments of leave for intermittent or reduced schedule leave. FMLA Employee benefit plans, Health, 825.206 Interaction with the FLSA. 825.700 Interaction with employer’s Health insurance, Labor management 825.207 Substitution of paid leave. policies. 825.208 [Reserved] 825.701 Interaction with State laws. relations, Maternal and child health, 825.209 Maintenance of employee benefits. 825.702 Interaction with Federal and State Teachers. 825.210 Employee payment of group health anti-discrimination laws. benefit premiums. 825.211 Maintenance of benefits under Subpart H—Definitions multi-employer health plans. 825.800 Definitions.

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Appendix A to Part 825—Index [Reserved] due to the serious health condition of their jobs. The record of hearings on Appendix B to Part 825—Certification of the employee or the employee’s covered family and medical leave indicate the Health Care Provider (Form WH–380) family member. Failure to comply with powerful productive advantages of Appendix C to Part 825—Notice to these requirements may result in a delay stable workplace relationships, and the Employees of Rights Under FMLA (WH Publication 1420) in the start of FMLA leave. Pursuant to comparatively small costs of Appendix D to Part 825—Eligibility Notice to a uniformly applied policy, the guaranteeing that those relationships Employees Under FMLA (Form WH– employer may also require that an will not be dissolved while workers 381) employee present a certification of attend to pressing family health Appendix E to Part 825—Designation Notice fitness to return to work when the obligations or their own serious illness. Under FMLA (Form WH–382) absence was caused by the employee’s § 825.102 [Reserved] Authority: 29 U.S.C. 2654. serious health condition (see §§ 825.310 and 825.311(d)). The employer may § 825.103 [Reserved] Subpart A—Coverage Under the delay restoring the employee to Family and Medical Leave Act employment without such certificate § 825.104 Covered employer. relating to the health condition which (a) An employer covered by FMLA is § 825.100 The Family and Medical Leave caused the employee’s absence. any person engaged in commerce or in Act. any industry or activity affecting (a) The Family and Medical Leave Act § 825.101 Purpose of the Act. commerce, who employs 50 or more of 1993 (FMLA or Act) allows ‘‘eligible’’ (a) FMLA is intended to allow employees for each working day during employees of a covered employer to take employees to balance their work and each of 20 or more calendar workweeks job-protected, unpaid leave, or to family life by taking reasonable unpaid in the current or preceding calendar substitute appropriate paid leave if the leave for medical reasons, for the birth year. Employers covered by FMLA also employee has earned or accrued it, for or adoption of a child, and for the care include any person acting, directly or up to a total of 12 workweeks in any 12 of a child, spouse, or parent who has a indirectly, in the interest of a covered months because of the birth of a child serious health condition. The Act is employer to any of the employees of the and to care for the newborn child, intended to balance the demands of the employer, any successor in interest of a because of the placement of a child with workplace with the needs of families, to covered employer, and any public the employee for adoption or foster care, promote the stability and economic agency. Public agencies are covered because the employee is needed to care security of families, and to promote employers without regard to the number for a family member (child, spouse, or national interests in preserving family of employees employed. Public as well parent) with a serious health condition, integrity. It was intended that the Act as private elementary and secondary or because the employee’s own serious accomplish these purposes in a manner schools are also covered employers health condition makes the employee that accommodates the legitimate without regard to the number of unable to perform the functions of his interests of employers, and in a manner employees employed. (See § 825.600.) or her job (see § 825.306(b)(4)). In consistent with the Equal Protection (b) The terms ‘‘commerce’’ and certain cases, this leave may be taken on Clause of the 14th amendment in ‘‘industry affecting commerce’’ are an intermittent basis rather than all at minimizing the potential for defined in accordance with section once, or the employee may work a part- employment discrimination on the basis 501(1) and (3) of the Labor Management time schedule. of sex, while promoting equal Relations Act of 1947 (LMRA) (29 U.S.C. (b) An employee on FMLA leave is employment opportunity for men and 142(1) and (3)), as set forth in the also entitled to have health benefits women. definitions at § 825.800 of this part. For maintained while on leave as if the (b) The enactment of FMLA was purposes of the FMLA, employers who employee had continued to work predicated on two fundamental meet the 50-employee coverage test are instead of taking the leave. If an concerns—the needs of the American deemed to be engaged in commerce or employee was paying all or part of the workforce, and the development of in an industry or activity affecting premium payments prior to leave, the high-performance organizations. commerce. employee would continue to pay his or Increasingly, America’s children and (c) Normally the legal entity which her share during the leave period. The elderly are dependent upon family employs the employee is the employer employer may recover its share only if members who must spend long hours at under FMLA. Applying this principle, a the employee does not return to work work. When a family emergency arises, corporation is a single employer rather for a reason other than the serious requiring workers to attend to seriously- than its separate establishments or health condition of the employee or the ill children or parents, or to newly-born divisions. employee’s covered family member, or or adopted infants, or even to their own (1) Where one corporation has an another reason beyond the employee’s serious illness, workers need ownership interest in another control. reassurance that they will not be asked corporation, it is a separate employer (c) An employee generally has a right to choose between continuing their unless it meets the ‘‘joint employment’’ to return to the same position or an employment, and meeting their personal test discussed in § 825.106, or the equivalent position with equivalent pay, and family obligations or tending to ‘‘integrated employer’’ test contained in benefits, and working conditions at the vital needs at home. paragraph (c)(2) of this section. conclusion of the leave. The taking of (c) The FMLA is both intended and (2) Separate entities will be deemed to FMLA leave cannot result in the loss of expected to benefit employers as well as be parts of a single employer for any benefit that accrued prior to the their employees. A direct correlation purposes of FMLA if they meet the start of the leave. exists between stability in the family ‘‘integrated employer’’ test. Where this (d) The employer has a right to 30 and productivity in the workplace. test is met, the employees of all entities days advance notice from the employee FMLA will encourage the development making up the integrated employer will where practicable. In addition, the of high-performance organizations. be counted in determining employer employer may require an employee to When workers can count on durable coverage and employee eligibility. A submit certification from a health care links to their workplace they are able to determination of whether or not provider to substantiate that the leave is make their own full commitments to separate entities are an integrated

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employer is not determined by the be considered employed each working separate owners, managers and application of any single criterion, but day of the calendar week, and must be facilities. Where the employee performs rather the entire relationship is to be counted whether or not any work which simultaneously benefits reviewed in its totality. Factors compensation is received for the week. two or more employers, or works for considered in determining whether two However, the FMLA applies only to two or more employers at different or more entities are an integrated employees who are employed within times during the workweek, a joint employer include: any State of the United States, the employment relationship generally will (i) Common management; District of Columbia or any Territory or be considered to exist in situations such (ii) Interrelation between operations; possession of the United States. as: (iii) Centralized control of labor Employees who are employed outside (1) Where there is an arrangement relations; and these areas are not counted for purposes between employers to share an (iv) Degree of common ownership/ of determining employer coverage or employee’s services or to interchange financial control. employee eligibility. employees; (d) An ‘‘employer’’ includes any (c) Employees on paid or unpaid (2) Where one employer acts directly person who acts directly or indirectly in leave, including FMLA leave, leaves of or indirectly in the interest of the other the interest of an employer to any of the absence, disciplinary suspension, etc., employer in relation to the employee; employer’s employees. The definition of are counted as long as the employer has or, ‘‘employer’’ in section 3(d) of the Fair a reasonable expectation that the (3) Where the employers are not Labor Standards Act (FLSA), 29 U.S.C. employee will later return to active completely disassociated with respect to 203(d), similarly includes any person employment. If there is no employer/ the employee’s employment and may be acting directly or indirectly in the employee relationship (as when an deemed to share control of the interest of an employer in relation to an employee is laid off, whether employee, directly or indirectly, employee. As under the FLSA, temporarily or permanently) such because one employer controls, is individuals such as corporate officers individual is not counted. Part-time controlled by, or is under common ‘‘acting in the interest of an employer’’ employees, like full-time employees, are control with the other employer. are individually liable for any violations considered to be employed each (b)(1) A determination of whether or of the requirements of FMLA. working day of the calendar week, as not a joint employment relationship long as they are maintained on the exists is not determined by the § 825.105 Counting employees for application of any single criterion, but determining coverage. payroll. (d) An employee who does not begin rather the entire relationship is to be (a) The definition of ‘‘employ’’ for to work for an employer until after the viewed in its totality. For example, joint purposes of FMLA is taken from the Fair first working day of a calendar week, or employment will ordinarily be found to Labor Standards Act, § 3(g). The courts who terminates employment before the exist when a temporary or leasing have made it clear that the employment last working day of a calendar week, is agency supplies employees to a second relationship under the FLSA is broader not considered employed on each employer. than the traditional common law working day of that calendar week. (2) A type of company that is often concept of master and servant. The (e) A private employer is covered if it called a ‘‘Professional Employment difference between the employment maintained 50 or more employees on Organization’’ (PEO) or ‘‘HR relationship under the FLSA and that the payroll during 20 or more calendar Outsourcing Vendor’’ contracts with under the common law arises from the workweeks (not necessarily consecutive client employers merely to perform fact that the term ‘‘employ’’ as defined workweeks) in either the current or the administrative functions—including in the Act includes ‘‘to suffer or permit preceding calendar year. payroll, benefits, regulatory paperwork, to work.’’ The courts have indicated (f) Once a private employer meets the and updating employment policies. A that, while ‘‘to permit’’ requires a more 50 employees/20 workweeks threshold, PEO does not enter into a joint positive action than ‘‘to suffer,’’ both the employer remains covered until it employment relationship with the terms imply much less positive action reaches a future point where it no longer employees of its client companies than required by the common law. Mere has employed 50 employees for 20 provided it merely performs these knowledge by an employer of work (nonconsecutive) workweeks in the administrative functions. On the other done for the employer by another is current and preceding calendar year. hand, if in a particular fact situation, a sufficient to create the employment For example, if an employer who met PEO has the right to hire, fire, assign, or relationship under the Act. The courts the 50 employees/20 workweeks test in direct and control the client’s have said that there is no definition that the calendar year as of September 1, employees, or benefits from the work solves all problems as to the limitations 2007, subsequently dropped below 50 that the employees perform, such a PEO of the employer/employee relationship employees before the end of 2007 and would be a joint employer with the under the Act; and that determination of continued to employ fewer than 50 client employer. the relation cannot be based on employees in all workweeks throughout (c) In joint employment relationships, ‘‘isolated factors’’ or upon a single calendar year 2008, the employer would only the primary employer is characteristic or ‘‘technical concepts,’’ continue to be covered throughout responsible for giving required notices but depends ‘‘upon the circumstances of calendar year 2008 because it met the to its employees, providing FMLA leave, the whole activity’’ including the coverage criteria for 20 workweeks of and maintenance of health benefits. underlying ‘‘economic reality.’’ In the preceding (i.e., 2007) calendar year. Factors considered in determining general an employee, as distinguished which is the ‘‘primary’’ employer from an independent contractor who is § 825.106 Joint employer coverage. include authority/responsibility to hire engaged in a business of his/her own, is (a) Where two or more businesses and fire, assign/place the employee, one who ‘‘follows the usual path of an exercise some control over the work or make payroll, and provide employment employee’’ and is dependent on the working conditions of the employee, the benefits. For employees of temporary business which he/she serves. businesses may be joint employers help or leasing agencies, for example, (b) Any employee whose name under FMLA. Joint employers may be the placement agency most commonly appears on the employer’s payroll will separate and distinct entities with would be the primary employer.

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(d) Employees jointly employed by (4) Similarity of jobs and working county is a single employer; a city or two employers must be counted by both conditions; town is a single employer. Where there employers, whether or not maintained (5) Similarity of supervisory is any question about whether a public on one of the employer’s payroll, in personnel; entity is a public agency, as determining employer coverage and (6) Similarity in machinery, distinguished from a part of another employee eligibility. For example, an equipment, and production methods; public agency, the U.S. Bureau of the employer who jointly employs 15 (7) Similarity of products or services; Census’ ‘‘Census of Governments’’ will workers from a leasing or temporary and be determinative, except for new help agency and 40 permanent workers (8) The ability of the predecessor to entities formed since the most recent is covered by FMLA. (A special rule provide relief. publication of the ‘‘Census.’’ For new applies to employees jointly employed (b) A determination of whether or not entities, the criteria used by the Bureau who physically work at a facility of the a ‘‘successor in interest’’ exists is not of the Census will be used to determine secondary employer for a period of at determined by the application of any whether an entity is a public agency or least one year. See § 825.111(a)(3).) An single criterion, but rather the entire a part of another agency, including employee on leave who is working for circumstances are to be viewed in their existence as an organized entity, a secondary employer is considered totality. governmental character, and substantial employed by the secondary employer, (c) When an employer is a ‘‘successor autonomy of the entity. and must be counted for coverage and in interest,’’ employees’ entitlements are (2) The Census Bureau takes a census eligibility purposes, as long as the the same as if the employment by the of governments at 5-year intervals. employer has a reasonable expectation predecessor and successor were Volume I, Government Organization, that that employee will return to continuous employment by a single contains the official counts of the employment with that employer. employer. For example, the successor, number of State and local governments. whether or not it meets FMLA coverage (e) Job restoration is the primary It includes tabulations of governments criteria, must grant leave for eligible responsibility of the primary employer. by State, type of government, size, and employees who had provided The secondary employer is responsible county location. Also produced is a appropriate notice to the predecessor, or for accepting the employee returning universe list of governmental units, continue leave begun while employed from FMLA leave in place of the classified according to type of by the predecessor, including replacement employee if the secondary government. Copies of Volume I, maintenance of group health benefits employer continues to utilize an Government Organization, and during the leave and job restoration at employee from the temporary or leasing subsequent volumes are available from the conclusion of the leave. A successor the Superintendent of Documents, U.S. agency, and the agency chooses to place which meets FMLA’s coverage criteria Government Printing Office, the employee with the secondary must count periods of employment and Washington, DC 20402, U.S. Department employer. A secondary employer is also hours worked for the predecessor for of Commerce District Offices, or can be responsible for compliance with the purposes of determining employee found in Regional and selective prohibited acts provisions with respect eligibility for FMLA leave. depository libraries. For a list of all to its temporary/leased employees, depository libraries, write to the whether or not the secondary employer § 825.108 Public agency coverage. Government Printing Office, 710 N. is covered by FMLA (see § 825.220(a)). (a) An ‘‘employer’’ under FMLA Capitol St., NW., Washington, DC The prohibited acts include prohibitions includes any ‘‘public agency,’’ as 20402. against interfering with an employee’s defined in section 3(x) of the Fair Labor (d) All public agencies are covered by attempt to exercise rights under the Act, Standards Act, 29 U.S.C. 203(x). Section the FMLA regardless of the number of or discharging or discriminating against 3(x) of the FLSA defines ‘‘public employees; they are not subject to the an employee for opposing a practice agency’’ as the government of the coverage threshold of 50 employees which is unlawful under FMLA. A United States; the government of a State carried on the payroll each day for 20 covered secondary employer will be or political subdivision of a State; or an or more weeks in a year. However, responsible for compliance with all the agency of the United States, a State, or employees of public agencies must meet provisions of the FMLA with respect to a political subdivision of a State, or any all of the requirements of eligibility, its regular, permanent workforce. interstate governmental agency. ‘‘State’’ including the requirement that the § 825.107 Successor in interest coverage. is further defined in Section 3(c) of the employer (e.g., State) employ 50 FLSA to include any State of the United employees at the worksite or within 75 (a) For purposes of FMLA, in States, the District of Columbia, or any miles. determining whether an employer is Territory or possession of the United covered because it is a ‘‘successor in States. § 825.109 Federal agency coverage. interest’’ to a covered employer, the (b) The determination of whether an (a) Most employees of the government factors used under Title VII of the Civil entity is a ‘‘public’’ agency, as of the United States, if they are covered Rights Act and the Vietnam Era distinguished from a private employer, by the FMLA, are covered under Title II Veterans’ Adjustment Act will be is determined by whether the agency of the FMLA (incorporated in Title V, considered. However, unlike Title VII, has taxing authority, or whether the Chapter 63, Subchapter 5 of the United whether the successor has notice of the chief administrative officer or board, States Code) which is administered by employee’s claim is not a consideration. etc., is elected by the voters-at-large or the U.S. Office of Personnel Notice may be relevant, however, in their appointment is subject to approval Management (OPM). OPM has separate determining successor liability for by an elected official. regulations at 5 CFR Part 630, Subpart violations of the predecessor. The (c)(1) A State or a political L. Employees of the Government factors to be considered include: subdivision of a State constitutes a Printing Office are covered by Title II. (1) Substantial continuity of the same single public agency and, therefore, a While employees of the Government business operations; single employer for purposes of Accountability Office and the Library of (2) Use of the same plant; determining employee eligibility. For Congress are covered by Title I of the (3) Continuity of the workforce; example, a State is a single employer; a FMLA, the Comptroller General of the

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United States and the Librarian of employee has been employed by the accounting of actual hours worked Congress, respectively, have employer for at least 12 months. under FLSA’s principles may be used. responsibility for the administration of (2) Employment periods preceding a (2) An employee returning from the FMLA with respect to these break in service of more than five years fulfilling his or her National Guard or employees. Other legislative branch must be counted in determining Reserve military obligation shall be employees, such as employees of the whether the employee has been credited with the hours-of-service that Senate and House of Representatives, employed by the employer for at least would have been performed but for the are covered by the Congressional 12 months where: period of military service in Accountability Act of 1995, 2 U.S.C. (i) The employee’s break in service is determining whether the employee 1301. occasioned by the fulfillment of his or worked the 1,250 hours of service. (b) The Federal Executive Branch her National Guard or Reserve military Accordingly, a person reemployed employees within the jurisdiction of service obligation. The time served following military service has the hours these regulations include: performing the military service must be that would have been worked for the (1) Employees of the Postal Service; also counted in determining whether employer added to any hours actually (2) Employees of the Postal Regulatory the employee has been employed for at worked during the previous 12-month Commission; least 12 months by the employer. period to meet the 1,250 hour (3) A part-time employee who does However, this section does not provide requirement. In order to determine the not have an established regular tour of any greater entitlement to the employee hours that would have been worked duty during the administrative than would be available under the during the period of military service, the workweek; and, Uniformed Services Employment and employee’s pre-service work schedule (4) An employee serving under an Reemployment Rights Act (USERRA); or can generally be used for calculations. intermittent appointment or temporary (ii) A written agreement, including a (3) In the event an employer does not appointment with a time limitation of collective bargaining agreement, exists maintain an accurate record of hours one year or less. concerning the employer’s intention to worked by an employee, including for (c) Employees of other Federal rehire the employee after the break in employees who are exempt from FLSA’s executive agencies are also covered by service (e.g., for purposes of the requirement that a record be kept of these regulations if they are not covered employee furthering his or her their hours worked (e.g., bona fide by Title II of FMLA. education or for childrearing purposes). executive, administrative, and (d) Employees of the judicial branch (3) If an employee is maintained on professional employees as defined in of the United States are covered by these the payroll for any part of a week, FLSA Regulations, 29 CFR part 541), the regulations only if they are employed in including any periods of paid or unpaid employer has the burden of showing a unit which has employees in the leave (sick, vacation) during which that the employee has not worked the competitive service. For example, other benefits or compensation are requisite hours. An employer must be employees of the U.S. Tax Court are provided by the employer (e.g., workers’ able to clearly demonstrate, for example, covered by these regulations. compensation, group health plan that full-time teachers (see § 825.800 for (e) For employees covered by these benefits, etc.), the week counts as a definition) of an elementary or regulations, the U.S. Government week of employment. For purposes of secondary school system, or institution constitutes a single employer for determining whether intermittent/ of higher education, or other purposes of determining employee occasional/casual employment qualifies educational establishment or institution eligibility. These employees must meet as ‘‘at least 12 months,’’ 52 weeks is (who often work outside the classroom all of the requirements for eligibility, deemed to be equal to 12 months. or at their homes) did not work 1,250 including the requirement that the (4) Nothing in this section prevents hours during the previous 12 months in Federal Government employ 50 employers from considering order to claim that the teachers are not employees at the worksite or within 75 employment prior to a continuous break eligible for FMLA leave. miles. in service of more than five years when (d) The determination of whether an determining whether an employee has employee has worked for the employer § 825.110 Eligible employee. met the 12–month employment for at least 1,250 hours in the past 12 (a) An ‘‘eligible employee’’ is an requirement. However, if an employer months and has been employed by the employee of a covered employer who: chooses to recognize such prior employer for a total of at least 12 (1) Has been employed by the employment, the employer must do so months must be made as of the date the employer for at least 12 months, and uniformly, with respect to all employees FMLA leave is to start. An employee (2) Has been employed for at least with similar breaks in service. may be on ‘‘non-FMLA leave’’ at the 1,250 hours of service during the 12- (c)(1) Except as provided in paragraph time he/she meets the eligibility month period immediately preceding (c)(2) of this section, whether an requirements, and in that event, any the commencement of the leave, and employee has worked the minimum portion of the leave taken for an FMLA- (3) Is employed at a worksite where 1,250 hours of service is determined qualifying reason after the employee 50 or more employees are employed by according to the principles established meets the eligibility requirement would the employer within 75 miles of that under the Fair Labor Standards Act be ‘‘FMLA leave.’’ (See § 825.300(b) for worksite. (See § 825.105(b) regarding (FLSA) for determining compensable rules governing the content of the employees who work outside the U.S.) hours of work. (See 29 CFR part 785.) eligibility notice given to employees.) (b) The 12 months an employee must The determining factor is the number of (e) Whether 50 employees are have been employed by the employer hours an employee has worked for the employed within 75 miles to ascertain need not be consecutive months, employer within the meaning of the an employee’s eligibility for FMLA provided FLSA. The determination is not limited benefits is determined when the (1) Subject to the exceptions provided by methods of recordkeeping, or by employee gives notice of the need for in paragraph (b)(2) of this section, compensation agreements that do not leave. Whether the leave is to be taken employment periods prior to a break in accurately reflect all of the hours an at one time or on an intermittent or service of five years or more need not employee has worked for or been in reduced leave schedule basis, once an be counted in determining whether the service to the employer. Any accurate employee is determined eligible in

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response to that notice of the need for employees hired locally who report to miles of the worksite of an employee is leave, the employee’s eligibility is not the mobile trailer/company office daily based on the number of employees affected by any subsequent change in for work assignments, etc. If that maintained on the payroll. Employees of the number of employees employed at construction company also sent educational institutions who are or within 75 miles of the employee’s personnel such as job superintendents, employed permanently or who are worksite, for that specific notice of the foremen, engineers, an office manager, under contract are ‘‘maintained on the need for leave. Similarly, an employer etc., from New Jersey to the job site in payroll’’ during any portion of the year may not terminate employee leave that Ohio, those workers sent from New when school is not in session. See has already started if the employee- Jersey continue to have the headquarters § 825.105(c). count drops below 50. For example, if in New Jersey as their ‘‘worksite.’’ The an employer employs 60 employees in workers who have New Jersey as their § 825.112 Qualifying reasons for leave, August, but expects that the number of worksite would not be counted in general rule. employees will drop to 40 in December, determining eligibility of employees (a) Circumstances qualifying for leave. the employer must grant FMLA benefits whose home base is the Ohio worksite, Employers covered by FMLA are to an otherwise eligible employee who but would be counted in determining required to grant leave to eligible gives notice of the need for leave in eligibility of employees whose home employees: August for a period of leave to begin in base is New Jersey. For transportation (1) For birth of a son or daughter, and December. employees, their worksite is the to care for the newborn child (see terminal to which they are assigned, § 825.120); § 825.111 Determining whether 50 report for work, depart, and return after (2) For placement with the employee employees are employed within 75 miles. completion of a work assignment. For of a son or daughter for adoption or (a) Generally, a worksite can refer to example, an airline pilot may work for foster care (see § 825.121); either a single location or a group of an airline with headquarters in New (3) To care for the employee’s spouse, contiguous locations. Structures which York, but the pilot regularly reports for son, daughter, or parent with a serious form a campus or industrial park, or duty and originates or begins flights health condition (see §§ 825.113 and separate facilities in proximity with one from the company’s facilities located in 825.122); and another, may be considered a single site an airport in Chicago and returns to (4) Because of a serious health of employment. On the other hand, Chicago at the completion of one or condition that makes the employee there may be several single sites of more flights to go off duty. The pilot’s unable to perform the functions of the employment within a single building, worksite is the facility in Chicago. An employee’s job (see §§ 825.113 and such as an office building, if separate employee’s personal residence is not a 825.123). employers conduct activities within the worksite in the case of employees such (b) Equal application. The right to building. For example, an office as salespersons who travel a sales take leave under FMLA applies equally building with 50 different businesses as territory and who generally leave to to male and female employees. A father, tenants will contain 50 sites of work and return from work to their as well as a mother, can take family employment. The offices of each personal residence, or employees who leave for the birth, placement for employer will be considered separate work at home, as under the concept of adoption or foster care of a child. sites of employment for purposes of flexiplace or telecommuting. Rather, (c) Active employee. In situations FMLA. An employee’s worksite under their worksite is the office to which they where the employer/employee FMLA will ordinarily be the site the report and from which assignments are relationship has been interrupted, such employee reports to or, if none, from made. as an employee who has been on layoff, which the employee’s work is assigned. (3) For purposes of determining that the employee must be recalled or (1) Separate buildings or areas which employee’s eligibility, when an otherwise be re-employed before being are not directly connected or in employee is jointly employed by two or eligible for FMLA leave. Under such immediate proximity are a single more employers (see § 825.106), the circumstances, an eligible employee is worksite if they are in reasonable employee’s worksite is the primary immediately entitled to further FMLA geographic proximity, are used for the employer’s office from which the leave for a qualifying reason. same purpose, and share the same staff employee is assigned or reports, unless and equipment. For example, if an the employee has physically worked for § 825.113 Serious health condition. employer manages a number of at least one year at a facility of a (a) For purposes of FMLA, ‘‘serious warehouses in a metropolitan area but secondary employer, in which case the health condition’’ entitling an employee regularly shifts or rotates the same employee’s worksite is that location. to FMLA leave means an illness, injury, employees from one building to another, The employee is also counted by the impairment or physical or mental the multiple warehouses would be a secondary employer to determine condition that involves inpatient care as single worksite. eligibility for the secondary employer’s defined in § 825.114 or continuing (2) For employees with no fixed full-time or permanent employees. treatment by a health care provider as worksite, e.g., construction workers, (b) The 75-mile distance is measured defined in § 825.115. transportation workers (e.g., truck by surface miles, using surface (b) The term ‘‘incapacity’’ means drivers, seamen, pilots), salespersons, transportation over public streets, roads, inability to work, attend school or etc., the ‘‘worksite’’ is the site to which highways and waterways, by the perform other regular daily activities they are assigned as their home base, shortest route from the facility where due to the serious health condition, from which their work is assigned, or to the eligible employee needing leave is treatment therefor, or recovery which they report. For example, if a employed. Absent available surface therefrom. construction company headquartered in transportation between worksites, the (c) The term ‘‘treatment’’ includes New Jersey opened a construction site distance is measured by using the most (but is not limited to) examinations to in Ohio, and set up a mobile trailer on frequently utilized mode of determine if a serious health condition the construction site as the company’s transportation (e.g., airline miles). exists and evaluations of the condition. on-site office, the construction site in (c) The determination of how many Treatment does not include routine Ohio would be the worksite for any employees are employed within 75 physical examinations, eye

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examinations, or dental examinations. A orders of, or on referral by, a health care level. An employee who is pregnant regimen of continuing treatment provider; or may be unable to report to work because includes, for example, a course of (2) Treatment by a health care of severe morning sickness. prescription medication (e.g., an provider on at least one occasion, which antibiotic) or therapy requiring special results in a regimen of continuing § 825.116 [Reserved] equipment to resolve or alleviate the treatment under the supervision of the § 825.117 [Reserved] health condition (e.g., oxygen). A health care provider. regimen of continuing treatment that (b) Pregnancy or prenatal care. Any § 825.118 [Reserved] period of incapacity due to pregnancy, includes the taking of over-the-counter § 825.119 Leave for treatment of medications such as aspirin, or for prenatal care. See also § 825.120. substance abuse. antihistamines, or salves; or bed-rest, (c) Chronic conditions. Any period of (a) Substance abuse may be a serious drinking fluids, exercise, and other incapacity or treatment for such health condition if the conditions of similar activities that can be initiated incapacity due to a chronic serious §§ 825.113 through 825.115 are met. without a visit to a health care provider, health condition. A chronic serious However, FMLA leave may only be is not, by itself, sufficient to constitute health condition is one which: taken for treatment for substance abuse a regimen of continuing treatment for (1) Requires periodic visits (defined as by a health care provider or by a purposes of FMLA leave. at least twice a year) for treatment by a provider of health care services on (d) Conditions for which cosmetic health care provider, or by a nurse under direct supervision of a health care referral by a health care provider. On treatments are administered (such as the other hand, absence because of the most treatments for acne or plastic provider; (2) Continues over an extended period employee’s use of the substance, rather surgery) are not ‘‘serious health of time (including recurring episodes of than for treatment, does not qualify for conditions’’ unless inpatient hospital a single underlying condition); and FMLA leave. care is required or unless complications (3) May cause episodic rather than a (b) Treatment for substance abuse develop. Ordinarily, unless continuing period of incapacity (e.g., does not prevent an employer from complications arise, the common cold, asthma, diabetes, epilepsy, etc.). taking employment action against an the flu, ear aches, upset stomach, minor (d) Permanent or long-term employee. The employer may not take ulcers, headaches other than migraine, conditions. A period of incapacity action against the employee because the routine dental or orthodontia problems, which is permanent or long-term due to employee has exercised his or her right periodontal disease, etc., are examples a condition for which treatment may not to take FMLA leave for treatment. of conditions that do not meet the be effective. The employee or family However, if the employer has an definition of a serious health condition member must be under the continuing established policy, applied in a non- and do not qualify for FMLA leave. supervision of, but need not be discriminatory manner that has been Restorative dental or plastic surgery receiving active treatment by, a health communicated to all employees, that after an injury or removal of cancerous care provider. Examples include provides under certain circumstances an growths are serious health conditions Alzheimer’s, a severe stroke, or the employee may be terminated for provided all the other conditions of this terminal stages of a disease. substance abuse, pursuant to that policy regulation are met. Mental illness (e) Conditions requiring multiple the employee may be terminated resulting from stress, or allergies may be treatments. Any period of absence to whether or not the employee is serious health conditions, but only if all receive multiple treatments (including presently taking FMLA leave. An the conditions of this section are met. any period of recovery therefrom) by a employee may also take FMLA leave to § 825.114 Inpatient care. health care provider or by a provider of care for a covered family member who health care services under orders of, or is receiving treatment for substance Inpatient care means an overnight on referral by, a health care provider, abuse. The employer may not take stay in a hospital, hospice, or residential for: action against an employee who is medical care facility, including any (1) Restorative surgery after an providing care for a covered family period of incapacity as defined in accident or other injury; or member receiving treatment for § 825.113(b), or any subsequent (2) A condition that would likely substance abuse. treatment in connection with such result in a period of incapacity of more inpatient care. than three consecutive calendar days in § 825.120 Leave for pregnancy or birth. § 825.115 Continuing treatment. the absence of medical intervention or (a) General rules. Eligible employees treatment, such as cancer are entitled to FMLA leave for A serious health condition involving (chemotherapy, radiation, etc.), severe pregnancy or birth of a child as follows: continuing treatment by a health care arthritis (physical therapy), kidney (1) Both the mother and father are provider includes any one or more of disease (dialysis). entitled to FMLA leave for the birth of the following: (f) Absences attributable to incapacity their child. (a) Incapacity and treatment. A period under paragraph (b) or (c) of this section (2) Both the mother and father are of incapacity of more than three qualify for FMLA leave even though the entitled to FMLA leave to be with the consecutive calendar days, and any employee or the covered family member healthy newborn child (i.e., bonding subsequent treatment or period of does not receive treatment from a health time) during the 12-month period incapacity relating to the same care provider during the absence, and beginning on the date of birth. An condition, that also involves: even if the absence does not last more employee’s entitlement to leave for a (1) Treatment two or more times, than three consecutive calendar days. birth expires at the end of the 12-month within a 30-day period unless For example, an employee with asthma period beginning on the date of the extenuating circumstances exist, by a may be unable to report for work due to birth, unless State law allows, or the health care provider, by a nurse under the onset of an asthma attack or because employer permits, leave to be taken for direct supervision of a health care the employee’s health care provider has a longer period. Any such FMLA leave provider, or by a provider of health care advised the employee to stay home must be concluded within this one-year services (e.g., physical therapist) under when the pollen count exceeds a certain period. However, see § 825.701

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regarding non-FMLA leave which may absence, and even if the absence does § 825.121 Leave for adoption or foster be available under applicable State not last for more than three consecutive care. laws. Under this section, both the calendar days. For example, a pregnant (a) General rules. Eligible employees mother and father are entitled to FMLA employee may be unable to report to are entitled to FMLA leave for leave even if the newborn does not have work because of severe morning placement with the employee of a son a serious health condition. sickness. or daughter for adoption or foster care (3) A husband and wife who are as follows: eligible for FMLA leave and are (5) The father is entitled to FMLA (1) Employees may take FMLA leave employed by the same covered leave if needed to care for his pregnant before the actual placement or adoption employer may be limited to a combined spouse who is incapacitated or for of a child if an absence from work is total of 12 weeks of leave during any 12- prenatal care, or if needed to care for the required for the placement for adoption month period if the leave is taken for spouse following the birth of a child if or foster care to proceed. For example, birth of the employee’s son or daughter the spouse has a serious health the employee may be required to attend or to care for the child after birth, for condition. See § 825.124. counseling sessions, appear in court, placement of a son or daughter with the (6) Both the mother and father are consult with his or her attorney or the employee for adoption or foster care, or entitled to FMLA leave if needed to care doctor(s) representing the birth parent, submit to a physical examination, or to care for the child after placement, or for a child with a serious health travel to another country to complete an to care for the employee’s parent with condition if the requirements of a serious health condition. This adoption. The source of an adopted §§ 825.113 through 825.115 and .122(c) limitation on the total weeks of leave child (e.g., whether from a licensed applies to leave taken for the reasons are met. Thus, a husband and wife may placement agency or otherwise) is not a specified as long as a husband and wife each take their 12 weeks of FMLA leave factor in determining eligibility for leave are employed by the ‘‘same employer.’’ if needed to care for their newborn child for this purpose. It would apply, for example, even with a serious health condition, even if (2) An employee’s entitlement to though the spouses are employed at two both are employed by the same leave for adoption or foster care expires different worksites of an employer employer, provided they have not at the end of the 12-month period located more than 75 miles from each exhausted their entitlements during the beginning on the date of the placement, other, or by two different operating applicable 12-month FMLA leave unless State law allows, or the employer divisions of the same company. On the period. permits, leave to be taken for a longer other hand, if one spouse is ineligible (b) Intermittent and reduced schedule period. Any such FMLA leave must be concluded within this one-year period. for FMLA leave, the other spouse would leave. An eligible employee may use However, see § 825.701 regarding non- be entitled to a full 12 weeks of FMLA intermittent or reduced schedule leave FMLA leave which may be available leave. Where the husband and wife both after the birth to be with a healthy use a portion of the total 12-week FMLA under applicable State laws. Under this newborn child only if the employer leave entitlement for either the birth of section, the employee is entitled to agrees. For example, an employer and a child, for placement for adoption or FMLA leave even if the adopted or foster care, or to care for a parent, the employee may agree to a part-time work foster child does not have a serious husband and wife would each be schedule after the birth. If the employer health condition. entitled to the difference between the agrees to permit intermittent or reduced (3) A husband and wife who are amount he or she has taken individually schedule leave for the birth of a child, eligible for FMLA leave and are and 12 weeks for FMLA leave for other the employer may require the employee employed by the same covered purposes. For example, if each spouse to transfer temporarily, during the employer may be limited to a combined took 6 weeks of leave to care for a period the intermittent or reduced leave total of 12 weeks of leave during any 12- healthy, newborn child, each could use schedule is required, to an available month period if the leave is taken for an additional 6 weeks due to his or her alternative position for which the the placement of the employee’s son or own serious health condition or to care employee is qualified and which better daughter or to care for the child after for a child with a serious health accommodates recurring periods of placement, for the birth of the condition. Note, too, that many State leave than does the employee’s regular employee’s son or daughter or to care pregnancy disability laws specify a position. Transfer to an alternative for the child after birth, or to care for the period of disability either before or after position may require compliance with employee’s parent with a serious health condition. This limitation on the total the birth of a child; such periods would any applicable collective bargaining weeks of leave applies to leave taken for also be considered FMLA leave for a agreement, Federal law (such as the the reasons specified as long as a serious health condition of the mother, Americans with Disabilities Act), and and would not be subject to the husband and wife are employed by the State law. Transfer to an alternative ‘‘same employer.’’ It would apply, for combined limit. position may include altering an (4) The mother is entitled to FMLA example, even though the spouses are existing job to better accommodate the leave for incapacity due to pregnancy, employed at two different worksites of for prenatal care, or for her own serious employee’s need for intermittent or an employer located more than 75 miles health condition following the birth of reduced leave. The employer’s from each other, or by two different the child. Circumstances may require agreement is not required for operating divisions of the same that FMLA leave begin before the actual intermittent leave required by the company. On the other hand, if one date of birth of a child. An expectant serious health condition of the mother spouse is ineligible for FMLA leave, the mother may take FMLA leave before the or newborn child. See §§ 825.202-.205 other spouse would be entitled to a full birth of the child for prenatal care or if for general rules governing the use of 12 weeks of FMLA leave. Where the her condition makes her unable to work. intermittent and reduced schedule husband and wife both use a portion of The mother is entitled to leave for leave. See § 825.121 for rules governing the total 12-week FMLA leave incapacity due to pregnancy even leave for adoption or foster care. See entitlement for either the birth of a though she does not receive treatment § 825.601 for special rules applicable to child, for placement for adoption or from a health care provider during the instructional employees of schools. foster care, or to care for a parent, the

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husband and wife would each be § 825.122 Definitions of spouse, parent, (e) Foster care. Foster care is 24-hour entitled to the difference between the son or daughter, adoption and foster care. care for children in substitution for, and amount he or she has taken individually (a) Spouse. Spouse means a husband away from, their parents or guardian. and 12 weeks for FMLA leave for other or wife as defined or recognized under Such placement is made by or with the purposes. For example, if each spouse State law for purposes of marriage in the agreement of the State as a result of a took 6 weeks of leave to care for a State where the employee resides, voluntary agreement between the parent healthy, newly placed child, each could including common law marriage in or guardian that the child be removed use an additional 6 weeks due to his or States where it is recognized. from the home, or pursuant to a judicial her own serious health condition or to (b) Parent. Parent means a biological, determination of the necessity for foster care for a child with a serious health adoptive, step or foster father or mother, care, and involves agreement between condition. or any other individual who stood in the State and foster family that the foster loco parentis to the employee when the family will take care of the child. (4) An eligible employee is entitled to employee was a son or daughter as Although foster care may be with FMLA leave in order to care for an defined in paragraph (c) of this section. relatives of the child, State action is adopted or foster child with a serious This term does not include parents ‘‘in involved in the removal of the child health condition if the requirements of law.’’ from parental custody. See § 825.121 for §§ 825.113 through 825.115 and .122(c) (c) Son or daughter. Son or daughter rules governing leave for foster care. are met. Thus, a husband and wife may means a biological, adopted, or foster (f) Documenting relationships. For each take 12 weeks of FMLA leave if child, a stepchild, a legal ward, or a purposes of confirmation of family needed to care for an adopted or foster child of a person standing in loco relationship, the employer may require child with a serious health condition, parentis, who is either under age 18, or the employee giving notice of the need even if both are employed by the same age 18 or older and ‘‘incapable of self- for leave to provide reasonable employer, provided they have not care because of a mental or physical documentation or statement of family exhausted their entitlements during the disability’’ at the time that FMLA leave relationship. This documentation may applicable 12-month FMLA leave is to commence. take the form of a child’s birth period. (1) ‘‘Incapable of self-care’’ means that certificate, a court document, a sworn (b) Use of intermittent and reduced the individual requires active assistance notarized statement, a submitted and schedule leave. An eligible employee or supervision to provide daily self-care signed tax return, etc. The employer is may use intermittent or reduced in three or more of the ‘‘activities of entitled to examine documentation such schedule leave after the placement of a daily living’’ (ADLs) or ‘‘instrumental as a birth certificate, etc., but the healthy child for adoption or foster care activities of daily living’’ (IADLs). employee is entitled to the return of the only if the employer agrees. Thus, for Activities of daily living include official document submitted for this example, the employer and employee adaptive activities such as caring purpose. may agree to a part-time work schedule appropriately for one’s grooming and hygiene, bathing, dressing and eating. § 825.123 Unable to perform the functions after the placement for bonding of the position. Instrumental activities of daily living purposes. If the employer agrees to include cooking, cleaning, shopping, (a) Definition. An employee is permit intermittent or reduced schedule taking public transportation, paying ‘‘unable to perform the functions of the leave for the placement for adoption or bills, maintaining a residence, using position’’ where the health care foster care, the employer may require telephones and directories, using a post provider finds that the employee is the employee to transfer temporarily, office, etc. unable to work at all or is unable to during the period the intermittent or (2) ‘‘Physical or mental disability’’ perform any one of the essential reduced leave schedule is required, to means a physical or mental impairment functions of the employee’s position an available alternative position for that substantially limits one or more of within the meaning of the Americans which the employee is qualified and the major life activities of an individual. with Disabilities Act (ADA), 42 U.S.C. which better accommodates recurring Regulations at 29 CFR 1630.2(h), (i), and 12101 et seq., and the regulations at 29 periods of leave than does the (j), issued by the Equal Employment CFR 1630.2(n). An employee who must employee’s regular position. Transfer to Opportunity Commission under the be absent from work to receive medical an alternative position may require Americans with Disabilities Act (ADA), treatment for a serious health condition compliance with any applicable 42 U.S.C. 12101 et seq., define these is considered to be unable to perform collective bargaining agreement, Federal terms. the essential functions of the position law (such as the Americans with (3) Persons who are ‘‘in loco parentis’’ during the absence for treatment. Disabilities Act), and State law. Transfer include those with day-to-day (b) Statement of functions. An to an alternative position may include responsibilities to care for and employer has the option, in requiring altering an existing job to better financially support a child, or, in the certification from a health care provider, accommodate the employee’s need for case of an employee, who had such to provide a statement of the essential intermittent or reduced leave. The responsibility for the employee when functions of the employee’s position for employer’s agreement is not required for the employee was a child. A biological the health care provider to review. For intermittent leave required by the or legal relationship is not necessary. purposes of FMLA, the essential serious health condition of the adopted (d) Adoption. ‘‘Adoption’’ means functions of the employee’s position are or foster child. See §§ 825.202 through legally and permanently assuming the to be determined with reference to the 825.205 for general rules governing the responsibility of raising a child as one’s position the employee held at the time use of intermittent and reduced own. The source of an adopted child notice is given or leave commenced, schedule leave. See § 825.120 for (e.g., whether from a licensed placement whichever is earlier. A sufficient general rules governing leave for agency or otherwise) is not a factor in medical certification must specify what pregnancy and birth of a child. See determining eligibility for FMLA leave. functions of the employee’s position the § 825.601 for special rules applicable to See § 825.121 for rules governing leave employee is unable to perform. See instructional employees of schools. for adoption. § 825.306.

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§ 825.124 Needed to care for a family performing within the scope of their (3) The 12-month period measured member. practice as defined under State law; forward from the date any employee’s (a) The medical certification provision (3) Christian Science Practitioners first FMLA leave begins; or, that an employee is ‘‘needed to care for’’ listed with the First Church of Christ, (4) A ‘‘rolling’’ 12-month period a family member encompasses both Scientist in Boston, Massachusetts. measured backward from the date an physical and psychological care. It Where an employee or family member is employee uses any FMLA leave. includes situations where, for example, receiving treatment from a Christian (c) Under methods in paragraphs because of a serious health condition, Science practitioner, an employee may (b)(1) and (b)(2) of this section an the family member is unable to care for not object to any requirement from an employee would be entitled to up to 12 his or her own basic medical, hygienic, employer that the employee or family weeks of FMLA leave at any time in the or nutritional needs or safety, or is member submit to examination (though fixed 12-month period selected. An unable to transport himself or herself to not treatment) to obtain a second or employee could, therefore, take 12 the doctor, etc. The term also includes third certification from a health care weeks of leave at the end of the year and providing psychological comfort and provider other than a Christian Science 12 weeks at the beginning of the reassurance which would be beneficial practitioner except as otherwise following year. Under the method in to a child, spouse or parent with a provided under applicable State or local paragraph (b)(3) of this section, an serious health condition who is law or collective bargaining agreement. employee would be entitled to 12 weeks receiving inpatient or home care. (4) Any health care provider from of leave during the year beginning on (b) The term also includes situations whom an employer or the employer’s the first date FMLA leave is taken; the where the employee may be needed to group health plan’s benefits manager next 12-month period would begin the fill in for others who are caring for the will accept certification of the existence first time FMLA leave is taken after family member, or to make of a serious health condition to completion of any previous 12-month arrangements for changes in care, such substantiate a claim for benefits; and period. Under the method in paragraph as transfer to a nursing home. The (5) A health care provider listed above (b)(4) of this section, the ‘‘rolling’’ 12- employee need not be the only who practices in a country other than month period, each time an employee individual or family member available the United States, who is authorized to takes FMLA leave the remaining leave to care for the qualified family member. practice in accordance with the law of entitlement would be any balance of the (c) An employee’s intermittent leave that country, and who is performing 12 weeks which has not been used or a reduced leave schedule necessary to within the scope of his or her practice during the immediately preceding 12 care for a family member includes not as defined under such law. months. For example, if an employee only a situation where the family (c) The phrase ‘‘authorized to practice has taken eight weeks of leave during member’s condition itself is in the State’’ as used in this section the past 12 months, an additional four intermittent, but also where the means that the provider must be weeks of leave could be taken. If an employee is only needed authorized to diagnose and treat employee used four weeks beginning intermittently—such as where other physical or mental health conditions. February 1, 2007, four weeks beginning June 1, 2007, and four weeks beginning care is normally available, or care Subpart B—Employee Leave responsibilities are shared with another December 1, 2007, the employee would Entitlements Under the Family and not be entitled to any additional leave member of the family or a third party. Medical Leave Act See §§ 825.202 through 825.205 for rules until February 1, 2008. However, governing the use of intermittent or § 825.200 Amount of leave. beginning on February 1, 2008, the reduced schedule leave. (a) An eligible employee’s FMLA employee would be entitled to four leave entitlement is limited to a total of weeks of leave, on June 1 the employee § 825.125 Definition of health care 12 workweeks of leave during any 12- would be entitled to an additional four provider. month period for any one, or more, of weeks, etc. (d)(1) Employers will be allowed to (a) The Act defines ‘‘health care the following reasons: provider’’ as: (1) The birth of the employee’s son or choose any one of the alternatives in (1) A doctor of medicine or daughter, and to care for the newborn paragraph (b) of this section provided osteopathy who is authorized to practice child; the alternative chosen is applied medicine or surgery (as appropriate) by (2) The placement with the employee consistently and uniformly to all the State in which the doctor practices; of a son or daughter for adoption or employees. An employer wishing to or foster care, and to care for the newly change to another alternative is required (2) Any other person determined by placed child; to give at least 60 days notice to all the Secretary to be capable of providing (3) To care for the employee’s spouse, employees, and the transition must take health care services. son, daughter, or parent with a serious place in such a way that the employees (b) Others ‘‘capable of providing health condition; and retain the full benefit of 12 weeks of health care services’’ include only: (4) Because of a serious health leave under whichever method affords (1) Podiatrists, dentists, clinical condition that makes the employee the greatest benefit to the employee. psychologists, optometrists, and unable to perform one or more of the Under no circumstances may a new chiropractors (limited to treatment essential functions of his or her job. method be implemented in order to consisting of manual manipulation of (b) An employer is permitted to avoid the Act’s leave requirements. the spine to correct a subluxation as choose any one of the following (2) An exception to this required demonstrated by X-ray to exist) methods for determining the ‘‘12-month uniformity would apply in the case of authorized to practice in the State and period’’ in which the 12 weeks of leave a multi-State employer who has eligible performing within the scope of their entitlement occurs: employees in a State which has a family practice as defined under State law; (1) The calendar year; and medical leave statute. The State (2) Nurse practitioners, nurse- (2) Any fixed 12-month ‘‘leave year,’’ may require a single method of midwives, clinical social workers and such as a fiscal year, a year required by determining the period during which physician assistants who are authorized State law, or a year starting on an use of the leave entitlement is to practice under State law and who are employee’s ‘‘anniversary’’ date; measured. This method may conflict

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with the method chosen by the daughter or to care for the child after the related serious health condition by or employer to determine ‘‘any 12 months’’ birth, or for placement of a son or under the supervision of a health care for purposes of the Federal statute. The daughter with the employee for provider, or for recovery from treatment employer may comply with the State adoption or foster care or to care for the or recovery from a serious health provision for all employees employed child after placement. This limitation on condition. It may also be taken to within that State, and uniformly use the total weeks of leave applies to leave provide care or psychological comfort to another method provided by this taken for the reasons specified as long a covered family member with a serious regulation for all other employees. as a husband and wife are employed by health condition. (e) If an employer fails to select one the ‘‘same employer.’’ It would apply, (1) Intermittent leave may be taken for of the options in paragraph (b) of this for example, even though the spouses a serious health condition which section for measuring the 12-month are employed at two different worksites requires treatment by a health care period, the option that provides the of an employer located more than 75 provider periodically, rather than for most beneficial outcome for the miles from each other, or by two one continuous period of time, and may employee will be used. The employer different operating divisions of the same include leave of periods from an hour or may subsequently select an option only company. On the other hand, if one more to several weeks. Examples of by providing the 60-day notice to all spouse is ineligible for FMLA leave, the intermittent leave would include leave employees of the option the employer other spouse would be entitled to a full taken on an occasional basis for medical intends to implement. During the 12 weeks of FMLA leave. Where the appointments, or leave taken several running of the 60-day period any other husband and wife both use a portion of days at a time spread over a period of employee who needs FMLA leave may the total 12-week FMLA leave six months, such as for chemotherapy. use the option providing the most entitlement for either the birth of a A pregnant employee may take leave beneficial outcome to that employee. At child, for placement for adoption or intermittently for prenatal examinations the conclusion of the 60-day period the foster care, or to care for a parent, the or for her own condition, such as for employer may implement the selected husband and wife would each be periods of severe morning sickness. An option. entitled to the difference between the example of an employee taking leave on (f) For purposes of determining the amount he or she has taken individually a reduced leave schedule is an amount of leave used by an employee, and 12 weeks for FMLA leave for other employee who is recovering from a the fact that a holiday may occur within purposes. For example, if each spouse serious health condition and is not the week taken as FMLA leave has no took 6 weeks of leave to care for a strong enough to work a full-time effect; the week is counted as a week of parent, each could use an additional 6 schedule. FMLA leave. However, if an employee weeks due to his or her own serious (2) Intermittent or reduced schedule is using FMLA leave in increments of health condition or to care for a child leave may be taken for absences where less than one week, the holiday will not with a serious health condition. the employee or family member is count against the employee’s FMLA incapacitated or unable to perform the entitlement unless the employee was § 825.202 Intermittent leave or reduced essential functions of the position leave schedule. otherwise scheduled and expected to because of a chronic serious health work during the holiday. Similarly, if (a) Definition. FMLA leave may be condition even if he or she does not for some reason the employer’s business taken ‘‘intermittently or on a reduced receive treatment by a health care activity has temporarily ceased and leave schedule’’ under certain provider. See § 825.113. employees generally are not expected to circumstances. Intermittent leave is (c) Birth or placement. When leave is report for work for one or more weeks FMLA leave taken in separate blocks of taken after the birth of a healthy child (e.g., a school closing two weeks for the time due to a single qualifying reason. or placement of a healthy child for Christmas/New Year holiday or the A reduced leave schedule is a leave adoption or foster care, an employee summer vacation or an employer closing schedule that reduces an employee’s may take leave intermittently or on a the plant for retooling or repairs), the usual number of working hours per reduced leave schedule only if the days the employer’s activities have workweek, or hours per workday. A employer agrees. Such a schedule ceased do not count against the reduced leave schedule is a change in reduction might occur, for example, employee’s FMLA leave entitlement. the employee’s schedule for a period of where an employee, with the employer’s Methods for determining an employee’s time, normally from full-time to part- agreement, works part-time after the 12-week leave entitlement are also time. birth of a child, or takes leave in several described in § 825.205. (b) Medical necessity. For intermittent segments. The employer’s agreement is leave or leave on a reduced leave not required, however, for leave during § 825.201 Leave to care for a parent. schedule, there must be a medical need which the mother has a serious health (a) General rule. An eligible employee for leave (as distinguished from condition in connection with the birth is entitled to FMLA leave if needed to voluntary treatments and procedures) of her child or if the newborn child has care for the employee’s parent with a and it must be that such medical need a serious health condition. See serious health condition. Care for can be best accommodated through an § 825.204 for rules governing transfer to parents-in-law is not covered by the intermittent or reduced leave schedule. an alternative position that better FMLA. See § 825.122(b) for definition of The treatment regimen and other accommodates intermittent leave. See parent. information described in the also § 825.120 (pregnancy) and (b) ‘‘Same employer’’ limitation. A certification of a serious health § 825.121 (adoption and foster care). husband and wife who are eligible for condition (see § 825.306) meets the FMLA leave and are employed by the requirement for certification of the § 825.203 Scheduling of intermittent or same covered employer may be limited medical necessity of intermittent leave reduced schedule leave. to a combined total of 12 weeks of leave or leave on a reduced leave schedule. Eligible employees may take FMLA during any 12-month period if the leave Leave may be taken intermittently or on leave on an intermittent or reduced is taken to care for the employee’s a reduced leave schedule when schedule basis when medically parent with a serious health condition, medically necessary for planned and/or necessary due to the serious health for the birth of the employee’s son or unanticipated medical treatment of a condition of a qualified family member

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or the employee. See § 825.202. If an proportionately reduce benefits such as employee who normally works 30 hours employee needs leave intermittently or vacation leave where an employer’s per week works only 20 hours a week on a reduced leave schedule for planned normal practice is to base such benefits under a reduced leave schedule, the medical treatment, then the employee on the number of hours worked. employee’s ten hours of leave would must make a reasonable effort to (d) Employer limitations. An constitute one-third of a week of FMLA schedule the leave so as not to disrupt employer may not transfer the employee leave for each week the employee works unduly the employer’s operations. to an alternative position in order to the reduced leave schedule. discourage the employee from taking (2) If an employer has made a § 825.204 Transfer of an employee to an leave or otherwise work a hardship on permanent or long-term change in the alternative position during intermittent leave or reduced schedule leave. the employee. For example, a white employee’s schedule (for reasons other collar employee may not be assigned to than FMLA, and prior to the notice of (a) Transfer or reassignment. If an perform laborer’s work; an employee need for FMLA leave), the hours worked employee needs intermittent leave or working the day shift may not be under the new schedule are to be used leave on a reduced leave schedule that reassigned to the graveyard shift; an for making this calculation. is foreseeable based on planned medical employee working in the headquarters (3) If an employee’s schedule varies treatment for the employee or a family facility may not be reassigned to a from week to week, a weekly average of member, including during a period of branch a significant distance away from the hours worked over the 12 weeks recovery from a serious health the employee’s normal job location. Any prior to the beginning of the leave condition, or if the employer agrees to such attempt on the part of the period would be used for calculating the permit intermittent or reduced schedule employer to make such a transfer will be employee’s normal workweek. leave for the birth of a child or for held to be contrary to the prohibited § 825.206 Interaction with the FLSA. placement of a child for adoption or acts of the FMLA. foster care, the employer may require (e) Reinstatement of employee. When (a) Leave taken under FMLA may be the employee to transfer temporarily, an employee who is taking leave unpaid. If an employee is otherwise during the period that the intermittent intermittently or on a reduced leave exempt from minimum wage and or reduced leave schedule is required, to schedule and has been transferred to an overtime requirements of the Fair Labor an available alternative position for alternative position no longer needs to Standards Act (FLSA) as a salaried which the employee is qualified and continue on leave and is able to return executive, administrative, professional, which better accommodates recurring to full-time work, the employee must be or computer employee (under periods of leave than does the placed in the same or equivalent job as regulations issued by the Secretary), 29 employee’s regular position. See the job he/she left when the leave CFR part 541, providing unpaid FMLA- § 825.601 for special rules applicable to commenced. An employee may not be qualifying leave to such an employee instructional employees of schools. required to take more leave than will not cause the employee to lose the (b) Compliance. Transfer to an necessary to address the circumstance FLSA exemption. See 29 CFR alternative position may require that precipitated the need for leave. 541.602(b)(7). This means that under compliance with any applicable regulations currently in effect, where an collective bargaining agreement, Federal § 825.205 Increments of leave for employee meets the specified duties law (such as the Americans with intermittent or reduced schedule leave. test, is paid on a salary basis, and is paid Disabilities Act), and State law. Transfer (a) Minimum increment. When an a salary of at least the amount specified to an alternative position may include employee takes leave on an intermittent in the regulations, the employer may altering an existing job to better or reduced leave schedule, an employer make deductions from the employee’s accommodate the employee’s need for may limit leave increments to the salary for any hours taken as intermittent or reduced schedule leave. shortest period of time that the intermittent or reduced FMLA leave (c) Equivalent pay and benefits. The employer’s payroll system uses to within a workweek, without affecting alternative position must have account for absences or use of leave, the exempt status of the employee. The equivalent pay and benefits. An provided it is one hour or less. If an fact that an employer provides FMLA alternative position for these purposes employee takes leave on an intermittent leave, whether paid or unpaid, and does not have to have equivalent duties. or reduced leave schedule, only the maintains records required by this part The employer may increase the pay and amount of leave actually taken may be regarding FMLA leave, will not be benefits of an existing alternative counted toward the 12 weeks of leave to relevant to the determination whether position, so as to make them equivalent which an employee is entitled. The an employee is exempt within the to the pay and benefits of the normal workweek is the basis of leave meaning of 29 CFR part 541. employee’s regular job. The employer entitlement. Therefore, if an employee (b) For an employee paid in may also transfer the employee to a part- who normally works five days a week accordance with the fluctuating time job with the same hourly rate of takes off one day, the employee would workweek method of payment for pay and benefits, provided the use 1/5 of a week of FMLA leave. overtime (see 29 CFR 778.114), the employee is not required to take more Similarly, if a full-time employee who employer, during the period in which leave than is medically necessary. For normally works 8-hour days works intermittent or reduced schedule FMLA example, an employee desiring to take 4-hour days under a reduced leave leave is scheduled to be taken, may leave in increments of four hours per schedule, the employee would use 1/2 compensate an employee on an hourly day could be transferred to a half-time week of FMLA leave. basis and pay only for the hours the job, or could remain in the employee’s (b) Calculation of leave. (1) Where an employee works, including time and same job on a part-time schedule, employee normally works a part-time one-half the employee’s regular rate for paying the same hourly rate as the schedule or variable hours, the amount overtime hours. The change to payment employee’s previous job and enjoying of leave to which an employee is on an hourly basis would include the the same benefits. The employer may entitled is determined on a pro rata or entire period during which the not eliminate benefits which otherwise proportional basis by comparing the employee is taking intermittent leave, would not be provided to part-time new schedule with the employee’s including weeks in which no leave is employees; however, an employer may normal schedule. For example, if an taken. The hourly rate shall be

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determined by dividing the employee’s circumstances described in this section, entitlement. Employers and employees weekly salary by the employee’s normal FMLA permits an eligible employee to also may agree, where State law permits, or average schedule of hours worked choose to substitute paid leave for to have paid leave supplement the during weeks in which FMLA leave is FMLA leave. If an employee does not temporary disability benefits, such as in not being taken. If an employer chooses choose to substitute accrued paid leave, the case where a plan only provides to follow this exception from the the employer may require the employee replacement income for two-thirds of an fluctuating workweek method of to substitute accrued paid leave for employee’s salary. payment, the employer must do so unpaid FMLA leave. The term (e) The Act provides that a serious uniformly, with respect to all employees ‘‘substitute’’ means that the paid leave health condition may result from injury paid on a fluctuating workweek basis for provided by the employer, and accrued to the employee ‘‘on or off’’ the job. If whom FMLA leave is taken on an pursuant to established policies of the the employer designates the leave as intermittent or reduced leave schedule employer, will run concurrently with FMLA leave in accordance with basis. If an employer does not elect to the unpaid FMLA leave. Accordingly, § 825.301, the employee’s FMLA 12- convert the employee’s compensation to the employee receives pay pursuant to week leave entitlement may run hourly pay, no deduction may be taken the employer’s applicable paid leave concurrently with a workers’ for FMLA leave absences. Once the need policy during the period of otherwise compensation absence when the injury for intermittent or reduced scheduled unpaid FMLA leave. An employee’s is one that meets the criteria for a leave is over, the employee may be ability to use accrued paid leave is serious health condition. As the restored to payment on a fluctuating determined by the terms and conditions workers’ compensation absence is not work week basis. of the employer’s normal leave policy. unpaid leave, the provision for (c) This special exception to the Employers may not discriminate against substitution of the employee’s accrued ‘‘salary basis’’ requirements of the FLSA employees on FMLA leave in the paid leave is not applicable. However, if exemption or fluctuating workweek administration of their leave policies. the health care provider treating the payment requirements applies only to When an employee chooses, or an employee for the workers’ compensation employees of covered employers who employer requires, substitution of injury certifies the employee is able to are eligible for FMLA leave, and to leave accrued paid leave, the employer must return to a ‘‘light duty job’’ but is unable which qualifies as (one of the four types inform the employee that the employee to return to the same or equivalent job, of) FMLA leave. Hourly or other must satisfy any procedural the employee may decline the deductions which are not in accordance requirements and meet any additional employer’s offer of a ‘‘light duty job.’’ with 29 CFR part 541 or 29 CFR 778.114 qualifying standards of the paid leave As a result the employee may lose may not be taken, for example, from the policy only in connection with the workers’ compensation payments, but is salary of an employee who works for an receipt of such payment or benefit. If an entitled to remain on unpaid FMLA employer with fewer than 50 employee does not comply with the leave until the 12-week entitlement is employees, or where the employee has additional requirements in an exhausted. As of the date workers’ not worked long enough to be eligible employer’s paid leave policy, the compensation benefits cease, the for FMLA leave without potentially employee is not entitled to substitute substitution provision becomes affecting the employee’s eligibility for accrued paid leave, but the employee applicable and either the employee may exemption. Nor may deductions which remains entitled to all the protections of elect or the employer may require the are not permitted by 29 CFR part 541 or unpaid FMLA leave. use of accrued paid leave. See also 29 CFR 778.114 be taken from such an (b) If neither the employee nor the §§ 825.210(f), 825.216(d), 825.220(d), employee’s salary for any leave which employer elects to substitute paid leave 825.307(a) and 825.702(d) (1) and (2) does not qualify as FMLA leave, for for unpaid FMLA leave under the above regarding the relationship between example, deductions from an conditions and circumstances, the workers’ compensation absences and employee’s pay for leave required under employee will remain entitled to all the FMLA leave. State law or under an employer’s policy paid leave which is earned or accrued (f) Section 7(o) of the Fair Labor or practice for a reason which does not under the terms of the employer’s plan. Standards Act (FLSA) permits public qualify as FMLA leave, e.g., leave to (c) If an employee uses paid leave employers under prescribed care for a grandparent or for a medical under circumstances which do not circumstances to substitute condition which does not qualify as a qualify as FMLA leave, the leave will compensatory time off accrued at one serious health condition; or for leave not count against the 12 weeks of FMLA and one-half hours for each overtime which is more generous than provided leave to which the employee is entitled. hour worked in lieu of paying cash to by FMLA, such as leave in excess of 12 For example, paid sick leave used for a an employee when the employee works weeks in a year. Employers may comply medical condition which is not a overtime hours as prescribed by the Act. with State law or the employer’s own serious health condition does not count There are limits to the amounts of hours policy/practice under these against the 12 weeks of FMLA leave of compensatory time an employee may circumstances and maintain the entitlement. accumulate depending upon whether employee’s eligibility for exemption or (d) Disability leave for the birth of a the employee works in fire protection or for the fluctuating workweek method of child would be considered FMLA leave law enforcement (480 hours) or pay by not taking hourly deductions for a serious health condition and elsewhere for a public agency (240 from the employee’s pay, in accordance counted in the 12 weeks of leave hours). In addition, under the FLSA, an with FLSA requirements, or may take permitted under FMLA. Because the employer always has the right to cash such deductions, treating the employee leave pursuant to a temporary disability out an employee’s compensatory time or as an ‘‘hourly’’ employee and pay benefit plan is not unpaid, the provision to require the employee to use the time. overtime premium pay for hours worked for substitution of paid leave is Therefore, if an employee requests and over 40 in a workweek. inapplicable. However, the employer is permitted to use accrued may designate the leave as FMLA leave compensatory time to receive pay for § 825.207 Substitution of paid leave. and count the leave as running time taken off for an FMLA reason, or (a) Generally, FMLA leave is unpaid concurrently for purposes of both the if the employer requires such use leave. However, under the benefit plan and the FMLA leave pursuant to the FLSA, the time taken off

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for an FMLA reason may be counted (c) If an employer provides a new from his or her reinstatement, the against the employee’s FMLA leave health plan or benefits or changes health employee’s entitlement to group health entitlement. benefits or plans while an employee is plan benefits continues unless and until on FMLA leave, the employee is entitled the employee advises the employer that § 825.208 [Reserved] to the new or changed plan/benefits to the employee does not desire restoration § 825.209 Maintenance of employee the same extent as if the employee were to employment at the end of the leave benefits. not on leave. For example, if an period, or FMLA leave entitlement is (a) During any FMLA leave, an employer changes a group health plan exhausted, or reinstatement is actually employer must maintain the employee’s so that dental care becomes covered denied. coverage under any group health plan under the plan, an employee on FMLA (h) An employee’s entitlement to (as defined in the Internal Revenue leave must be given the same benefits other than group health benefits Code of 1986 at 26 U.S.C. 5000(b)(1)) on opportunity as other employees to during a period of FMLA leave (e.g., the same conditions as coverage would receive (or obtain) the dental care holiday pay) is to be determined by the have been provided if the employee had coverage. Any other plan changes (e.g., employer’s established policy for been continuously employed during the in coverage, premiums, deductibles, providing such benefits when the entire leave period. All employers etc.) which apply to all employees of the employee is on other forms of leave covered by FMLA, including public workforce would also apply to an (paid or unpaid, as appropriate). employee on FMLA leave. agencies, are subject to the Act’s (d) Notice of any opportunity to § 825.210 Employee payment of group requirements to maintain health change plans or benefits must also be health benefit premiums. coverage. The definition of ‘‘group given to an employee on FMLA leave. (a) Group health plan benefits must be health plan’’ is set forth in § 825.800. If the group health plan permits an For purposes of FMLA, the term ‘‘group maintained on the same basis as employee to change from single to coverage would have been provided if health plan’’ shall not include an family coverage upon the birth of a insurance program providing health the employee had been continuously child or otherwise add new family employed during the FMLA leave coverage under which employees members, such a change in benefits purchase individual policies from period. Therefore, any share of group must be made available while an health plan premiums which had been insurers provided that: employee is on FMLA leave. If the (1) No contributions are made by the paid by the employee prior to FMLA employee requests the changed coverage leave must continue to be paid by the employer; it must be provided by the employer. (2) Participation in the program is employee during the FMLA leave (e) An employee may choose not to period. If premiums are raised or completely voluntary for employees; retain group health plan coverage (3) The sole functions of the employer lowered, the employee would be during FMLA leave. However, when an required to pay the new premium rates. with respect to the program are, without employee returns from leave, the endorsing the program, to permit the Maintenance of health insurance employee is entitled to be reinstated on policies which are not a part of the insurer to publicize the program to the same terms as prior to taking the employees, to collect premiums through employer’s group health plan, as leave, including family or dependent described in § 825.209(a)(1), are the sole payroll deductions and to remit them to coverages, without any qualifying the insurer; responsibility of the employee. The period, physical examination, exclusion employee and the insurer should make (4) The employer receives no of pre-existing conditions, etc. See consideration in the form of cash or necessary arrangements for payment of § 825.212(c). premiums during periods of unpaid otherwise in connection with the (f) Except as required by the FMLA leave. program, other than reasonable Consolidated Omnibus Budget compensation, excluding any profit, for Reconciliation Act of 1986 (COBRA) (b) If the FMLA leave is substituted administrative services actually and for ‘‘key’’ employees (as discussed paid leave, the employee’s share of rendered in connection with payroll below), an employer’s obligation to premiums must be paid by the method deduction; and, maintain health benefits during leave normally used during any paid leave, (5) The premium charged with respect (and to restore the employee to the same presumably as a payroll deduction. to such coverage does not increase in or equivalent employment) under FMLA (c) If FMLA leave is unpaid, the the event the employment relationship ceases if and when the employment employer has a number of options for terminates. relationship would have terminated if obtaining payment from the employee. (b) The same group health plan the employee had not taken FMLA leave The employer may require that payment benefits provided to an employee prior (e.g., if the employee’s position is be made to the employer or to the to taking FMLA leave must be eliminated as part of a insurance carrier, but no additional maintained during the FMLA leave. For nondiscriminatory reduction in force charge may be added to the employee’s example, if family member coverage is and the employee would not have been premium payment for administrative provided to an employee, family transferred to another position); an expenses. The employer may require member coverage must be maintained employee informs the employer of his or employees to pay their share of during the FMLA leave. Similarly, her intent not to return from leave premium payments in any of the benefit coverage during FMLA leave for (including before starting the leave if the following ways: medical care, surgical care, hospital employer is so informed before the leave (1) Payment would be due at the same care, dental care, eye care, mental health starts); or the employee fails to return time as it would be made if by payroll counseling, substance abuse treatment, from leave or continues on leave after deduction; etc., must be maintained during leave if exhausting his or her FMLA leave (2) Payment would be due on the provided in an employer’s group health entitlement in the 12-month period. same schedule as payments are made plan, including a supplement to a group (g) If a ‘‘key employee’’ (see § 825.218) under COBRA; health plan, whether or not provided does not return from leave when (3) Payment would be prepaid through a flexible spending account or notified by the employer that substantial pursuant to a cafeteria plan at the other component of a cafeteria plan. or grievous economic injury will result employee’s option;

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(4) The employer’s existing rules for (e) As provided in § 825.209(f) of this have had if leave had not been taken payment by employees on ‘‘leave part, group health plan coverage must and the premium payment(s) had not without pay’’ would be followed, be maintained for an employee on been missed, including family or provided that such rules do not require FMLA leave until: dependent coverage. See § 825.215(d)(1) prepayment (i.e., prior to the (1) The employee’s FMLA leave through (5). In such case, an employee commencement of the leave) of the entitlement is exhausted; may not be required to meet any premiums that will become due during (2) The employer can show that the qualification requirements imposed by a period of unpaid FMLA leave or employee would have been laid off and the plan, including any new preexisting payment of higher premiums than if the the employment relationship condition waiting period, to wait for an employee had continued to work terminated; or, open season, or to pass a medical instead of taking leave; or, (3) The employee provides examination to obtain reinstatement of (5) Another system voluntarily agreed unequivocal notice of intent not to coverage. If an employer terminates an to between the employer and the return to work. employee’s insurance in accordance with this section and fails to restore the employee, which may include § 825.212 Employee failure to pay health prepayment of premiums (e.g., through plan premium payments. employee’s health insurance as required by this section upon the employee’s increased payroll deductions when the (a)(1) In the absence of an established need for the FMLA leave is foreseeable). return, the employer may be liable for employer policy providing a longer benefits lost by reason of the violation, (d) The employer must provide the grace period, an employer’s obligations employee with advance written notice for other actual monetary losses to maintain health insurance coverage sustained as a direct result of the of the terms and conditions under cease under FMLA if an employee’s which these payments must be made. violation, and for appropriate equitable premium payment is more than 30 days relief tailored to the harm suffered. (See § 825.300.) late. In order to drop the coverage for an (e) An employer may not require more employee whose premium payment is § 825.213 Employer recovery of benefit of an employee using unpaid FMLA late, the employer must provide written costs. leave than the employer requires of notice to the employee that the payment (a) In addition to the circumstances other employees on ‘‘leave without has not been received. Such notice must discussed in § 825.212(b), an employer pay.’’ be mailed to the employee at least 15 may recover its share of health plan (f) An employee who is receiving days before coverage is to cease, premiums during a period of unpaid payments as a result of a workers’ advising that coverage will be dropped FMLA leave from an employee if the compensation injury must make on a specified date at least 15 days after employee fails to return to work after arrangements with the employer for the date of the letter unless the payment the employee’s FMLA leave entitlement payment of group health plan benefits has been received by that date. If the has been exhausted or expires, unless when simultaneously taking FMLA employer has established policies the reason the employee does not return leave. See § 825.207(e). regarding other forms of unpaid leave is due to: that provide for the employer to cease (1) The continuation, recurrence, or § 825.211 Maintenance of benefits under onset of a serious health condition of multi-employer health plans. coverage retroactively to the date the unpaid premium payment was due, the the employee or the employee’s family (a) A multi-employer health plan is a employer may drop the employee from member which would otherwise entitle plan to which more than one employer coverage retroactively in accordance the employee to leave under FMLA; or is required to contribute, and which is with that policy, provided the 15-day (2) Other circumstances beyond the maintained pursuant to one or more notice was given. In the absence of such employee’s control. Examples of ‘‘other collective bargaining agreements a policy, coverage for the employee may circumstances beyond the employee’s between employee organization(s) and be terminated at the end of the 30-day control’’ are necessarily broad. They the employers. grace period, where the required 15-day include such situations as where a (b) An employer under a multi- notice has been provided. parent chooses to stay home with a employer plan must continue to make (2) An employer has no obligation newborn child who has a serious health contributions on behalf of an employee regarding the maintenance of a health condition; an employee’s spouse is using FMLA leave as though the insurance policy which is not a ‘‘group unexpectedly transferred to a job employee had been continuously health plan.’’ See § 825.209(a). location more than 75 miles from the employed, unless the plan contains an (3) All other obligations of an employee’s worksite; a relative or explicit FMLA provision for employer under FMLA would continue; individual other than a covered family maintaining coverage such as through for example, the employer continues to member has a serious health condition pooled contributions by all employers have an obligation to reinstate an and the employee is needed to provide party to the plan. employee upon return from leave. care; the employee is laid off while on (c) During the duration of an (b) The employer may recover the leave; or, the employee is a ‘‘key employee’s FMLA leave, coverage by employee’s share of any premium employee’’ who decides not to return to the group health plan, and benefits payments missed by the employee for work upon being notified of the provided pursuant to the plan, must be any FMLA leave period during which employer’s intention to deny restoration maintained at the level of coverage and the employer maintains health coverage because of substantial and grievous benefits which were applicable to the by paying the employee’s share after the economic injury to the employer’s employee at the time FMLA leave premium payment is missed. operations and is not reinstated by the commenced. (c) If coverage lapses because an employer. Other circumstances beyond (d) An employee using FMLA leave employee has not made required the employee’s control would not cannot be required to use ‘‘banked’’ premium payments, upon the include a situation where an employee hours or pay a greater premium than the employee’s return from FMLA leave the desires to remain with a parent in a employee would have been required to employer must still restore the distant city even though the parent no pay if the employee had been employee to coverage/benefits longer requires the employee’s care, or continuously employed. equivalent to those the employee would a parent chooses not to return to work

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to stay home with a well, newborn health insurance or other non-health inability to attend a necessary course, child. benefit premiums for any period of renew a license, fly a minimum number (3) When an employee fails to return FMLA leave covered by paid leave. of hours, etc., as a result of the leave, the to work because of the continuation, Because paid leave provided under a employee shall be given a reasonable recurrence, or onset of a serious health plan covering temporary disabilities opportunity to fulfill those conditions condition, thereby precluding the (including workers’ compensation) is upon return to work. employer from recovering its (share of) not unpaid, recovery of health insurance (c) Equivalent pay. (1) An employee is health benefit premium payments made premiums does not apply to such paid entitled to any unconditional pay on the employee’s behalf during a leave. increases which may have occurred period of unpaid FMLA leave, the (e) The amount that self-insured during the FMLA leave period, such as employer may require medical employers may recover is limited to cost of living increases. Pay increases certification of the employee’s or the only the employer’s share of allowable conditioned upon seniority, length of family member’s serious health ‘‘premiums’’ as would be calculated service, or work performed would not condition. Such certification is not under COBRA, excluding the 2 percent have to be granted unless it is the required unless requested by the fee for administrative costs. employer’s policy or practice to do so employer. The cost of the certification (f) When an employee fails to return with respect to other employees on shall be borne by the employee, and the to work, any health and non-health ‘‘leave without pay.’’ In such case, any employee is not entitled to be paid for benefit premiums which this section of pay increase would be granted based on the time or travel costs spent in the regulations permits an employer to the employee’s seniority, length of acquiring the certification. The recover are a debt owed by the non- service, work performed, etc., excluding employee is required to provide medical returning employee to the employer. the period of unpaid FMLA leave. An certification in a timely manner which, The existence of this debt caused by the employee is entitled to be restored to a for purposes of this section, is within 30 employee’s failure to return to work position with the same or equivalent days from the date of the employer’s does not alter the employer’s pay premiums, such as a shift request. For purposes of medical responsibilities for health benefit differential. If an employee departed certification, the employee may use the coverage and, under a self-insurance from a position averaging ten hours of optional DOL form developed for this plan, payment of claims incurred during overtime (and corresponding overtime purpose (see § 825.306(b) and Appendix the period of FMLA leave. To the extent pay) each week, an employee is B of this part). If the employer requests recovery is allowed, the employer may ordinarily entitled to such a position on medical certification and the employee recover the costs through deduction return from FMLA leave. does not provide such certification in a from any sums due to the employee (2) Equivalent pay includes any bonus timely manner (within 30 days), or the (e.g., unpaid wages, vacation pay, profit or payment, whether it is discretionary reason for not returning to work does sharing, etc.), provided such deductions or non-discretionary, made to not meet the test of other circumstances do not otherwise violate applicable employees consistent with the beyond the employee’s control, the Federal or State wage payment or other provisions of paragraph (c)(1) of this employer may recover 100% of the laws. Alternatively, the employer may section. However, if a bonus or other health benefit premiums it paid during initiate legal action against the payment is based on the achievement of the period of unpaid FMLA leave. employee to recover such costs. a specified goal such as hours worked, (b) Under some circumstances an products sold or perfect attendance, and employer may elect to maintain other § 825.214 Employee right to reinstatement. the employee has not met the goal due benefits, e.g., life insurance, disability General rule. On return from FMLA to FMLA leave, then the payment may insurance, etc., by paying the leave, an employee is entitled to be be denied, unless otherwise paid to employee’s (share of) premiums during returned to the same position the employees on an equivalent non-FMLA periods of unpaid FMLA leave. For employee held when leave commenced, leave status. For example, if an example, to ensure the employer can or to an equivalent position with employee who used paid vacation leave meet its responsibilities to provide equivalent benefits, pay, and other for a non-FMLA purpose would receive equivalent benefits to the employee terms and conditions of employment. the payment, then the employee who upon return from unpaid FMLA leave, An employee is entitled to such used vacation leave for an FMLA- it may be necessary that premiums be reinstatement even if the employee has protected purpose also must receive the paid continuously to avoid a lapse of been replaced or his or her position has payment. coverage. If the employer elects to been restructured to accommodate the (d) Equivalent benefits. ‘‘Benefits’’ maintain such benefits during the leave, employee’s absence. See also include all benefits provided or made at the conclusion of leave, the employer § 825.106(e) for the obligations of joint available to employees by an employer, is entitled to recover only the costs employers. including group life insurance, health incurred for paying the employee’s insurance, disability insurance, sick share of any premiums whether or not § 825.215 Equivalent position. leave, annual leave, educational the employee returns to work. (a) Equivalent position. An equivalent benefits, and pensions, regardless of (c) An employee who returns to work position is one that is virtually identical whether such benefits are provided by for at least 30 calendar days is to the employee’s former position in a practice or written policy of an considered to have ‘‘returned’’ to work. terms of pay, benefits and working employer through an employee benefit An employee who transfers directly conditions, including privileges, plan as defined in Section 3(3) of the from taking FMLA leave to retirement, perquisites and status. It must involve Employee Retirement Income Security or who retires during the first 30 days the same or substantially similar duties Act of 1974, 29 U.S.C. 1002(3). after the employee returns to work, is and responsibilities, which must entail (1) At the end of an employee’s FMLA deemed to have returned to work. substantially equivalent skill, effort, leave, benefits must be resumed in the (d) When an employee elects or an responsibility, and authority. same manner and at the same levels as employer requires paid leave to be (b) Conditions to qualify. If an provided when the leave began, and substituted for FMLA leave, the employee is no longer qualified for the subject to any changes in benefit levels employer may not recover its (share of) position because of the employee’s that may have taken place during the

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period of FMLA leave affecting the be dependent upon seniority or accrual employee had been continuously entire workforce, unless otherwise during the leave period, immediately employed during the FMLA leave elected by the employee. Upon return upon return from leave or to the same period. An employer must be able to from FMLA leave, an employee cannot extent they would have qualified if no show that an employee would not be required to requalify for any benefits leave had been taken. For example if the otherwise have been employed at the the employee enjoyed before FMLA benefit plan is predicated on a pre- time reinstatement is requested in order leave began (including family or established number of hours worked to deny restoration to employment. For dependent coverages). For example, if each year and the employee does not example: an employee was covered by a life have sufficient hours as a result of (1) If an employee is laid off during insurance policy before taking leave but taking unpaid FMLA leave, the benefit the course of taking FMLA leave and is not covered or coverage lapses during is lost. (In this regard, § 825.209 employment is terminated, the the period of unpaid FMLA leave, the addresses health benefits.) employer’s responsibility to continue employee cannot be required to meet (e) Other issues related to equivalent FMLA leave, maintain group health any qualifications, such as taking a terms and conditions of employment. plan benefits and restore the employee physical examination, in order to An equivalent position must have cease at the time the employee is laid requalify for life insurance upon return substantially similar duties, conditions, off, provided the employer has no from leave. Accordingly, some responsibilities, privileges and status as continuing obligations under a employers may find it necessary to the employee’s original position. collective bargaining agreement or modify life insurance and other benefits (1) The employee must be reinstated otherwise. An employer would have the programs in order to restore employees to the same or a geographically burden of proving that an employee to equivalent benefits upon return from proximate worksite (i.e., one that does would have been laid off during the FMLA leave, make arrangements for not involve a significant increase in FMLA leave period and, therefore, continued payment of costs to maintain commuting time or distance) from would not be entitled to restoration. such benefits during unpaid FMLA where the employee had previously Restoration to a job slated for lay-off leave, or pay these costs subject to been employed. If the employee’s when the employee’s original position is recovery from the employee on return original worksite has been closed, the not would not meet the requirements of from leave. See § 825.213(b). employee is entitled to the same rights an equivalent position. (2) An employee may, but is not as if the employee had not been on leave (2) If a shift has been eliminated, or entitled to, accrue any additional when the worksite closed. For example, overtime has been decreased, an benefits or seniority during unpaid if an employer transfers all employees employee would not be entitled to FMLA leave. Benefits accrued at the from a closed worksite to a new return to work that shift or the original time leave began, however, (e.g., paid worksite in a different city, the overtime hours upon restoration. vacation, sick or personal leave to the employee on leave is also entitled to However, if a position on, for example, extent not substituted for FMLA leave) transfer under the same conditions as if a night shift has been filled by another must be available to an employee upon he or she had continued to be employee, the employee is entitled to return from leave. employed. return to the same shift on which (3) If, while on unpaid FMLA leave, (2) The employee is ordinarily employed before taking FMLA leave. an employee desires to continue life entitled to return to the same shift or the (3) If an employee was hired for a insurance, disability insurance, or other same or an equivalent work schedule. specific term or only to perform work on types of benefits for which he or she (3) The employee must have the same a discrete project, the employer has no typically pays, the employer is required or an equivalent opportunity for obligation to restore the employee if the to follow established policies or bonuses, profit-sharing, and other employment term or project is over and practices for continuing such benefits similar discretionary and non- the employer would not otherwise have for other instances of leave without pay. discretionary payments. continued to employ the employee. On If the employer has no established (4) FMLA does not prohibit an the other hand, if an employee was policy, the employee and the employer employer from accommodating an hired to perform work on a contract, and are encouraged to agree upon employee’s request to be restored to a after that contract period the contract arrangements before FMLA leave begins. different shift, schedule, or position was awarded to another contractor, the (4) With respect to pension and other which better suits the employee’s successor contractor may be required to retirement plans, any period of unpaid personal needs on return from leave, or restore the employee if it is a successor FMLA leave shall not be treated as or to offer a promotion to a better position. employer. See § 825.107. counted toward a break in service for However, an employee cannot be (b) In addition to the circumstances purposes of vesting and eligibility to induced by the employer to accept a explained above, an employer may deny participate. Also, if the plan requires an different position against the employee’s job restoration to salaried eligible employee to be employed on a specific wishes. employees (‘‘key employees,’’ as defined date in order to be credited with a year (f) De minimis exception. The in § 825.217(c)), if such denial is of service for vesting, contributions or requirement that an employee be necessary to prevent substantial and participation purposes, an employee on restored to the same or equivalent job grievous economic injury to the unpaid FMLA leave on that date shall with the same or equivalent pay, operations of the employer; or may be deemed to have been employed on benefits, and terms and conditions of delay restoration to an employee who that date. However, unpaid FMLA leave employment does not extend to de fails to provide a fitness for duty periods need not be treated as credited minimis, intangible, or unmeasurable certificate to return to work under the service for purposes of benefit accrual, aspects of the job. conditions described in § 825.310. vesting and eligibility to participate. (c) If the employee is unable to (5) Employees on unpaid FMLA leave § 825.216 Limitations on an employee’s perform an essential function of the are to be treated as if they continued to right to reinstatement. position because of a physical or mental work for purposes of changes to benefit (a) An employee has no greater right condition, including the continuation of plans. They are entitled to changes in to reinstatement or to other benefits and a serious health condition or an injury benefits plans, except those which may conditions of employment than if the or illness also covered by workers’

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compensation, the employee has no § 825.218 Substantial and grievous most circumstances there will be no right to restoration to another position economic injury. desire that an employee be denied under the FMLA. However, the (a) In order to deny restoration to a restoration after FMLA leave and, employer’s obligations may be governed key employee, an employer must therefore, there would be no need to by the Americans with Disabilities Act determine that the restoration of the provide such notice. However, an (ADA). See § 825.702, State leave laws, employee to employment will cause employer who fails to provide such or workers’ compensation laws. ‘‘substantial and grievous economic timely notice will lose its right to deny injury’’ to the operations of the restoration even if substantial and (d) An employee who fraudulently employer, not whether the absence of grievous economic injury will result obtains FMLA leave from an employer the employee will cause such from reinstatement. is not protected by FMLA’s job substantial and grievous injury. (b) As soon as an employer makes a restoration or maintenance of health (b) An employer may take into good faith determination, based on the benefits provisions. account its ability to replace on a facts available, that substantial and (e) If the employer has a uniformly- temporary basis (or temporarily do grievous economic injury to its applied policy governing outside or without) the employee on FMLA leave. operations will result if a key employee supplemental employment, such a If permanent replacement is who has given notice of the need for policy may continue to apply to an unavoidable, the cost of then reinstating FMLA leave or is using FMLA leave is employee while on FMLA leave. An the employee can be considered in reinstated, the employer shall notify the employer which does not have such a evaluating whether substantial and employee in writing of its policy may not deny benefits to which grievous economic injury will occur determination, that it cannot deny an employee is entitled under FMLA on from restoration; in other words, the FMLA leave, and that it intends to deny this basis unless the FMLA leave was effect on the operations of the company restoration to employment on fraudulently obtained as in paragraph of reinstating the employee in an completion of the FMLA leave. It is (d) of this section. equivalent position. anticipated that an employer will (c) A precise test cannot be set for the ordinarily be able to give such notice § 825.217 Key employee, general rule. level of hardship or injury to the prior to the employee starting leave. The (a) A ‘‘key employee’’ is a salaried employer which must be sustained. If employer must serve this notice either FMLA-eligible employee who is among the reinstatement of a ‘‘key employee’’ in person or by certified mail. This the highest paid 10 percent of all the threatens the economic viability of the notice must explain the basis for the employees employed by the employer firm, that would constitute ‘‘substantial employer’s finding that substantial and within 75 miles of the employee’s and grievous economic injury.’’ A lesser grievous economic injury will result, worksite. injury which causes substantial, long- and, if leave has commenced, must term economic injury would also be provide the employee a reasonable time (b) The term ‘‘salaried’’ means ‘‘paid sufficient. Minor inconveniences and in which to return to work, taking into on a salary basis,’’ as defined in 29 CFR costs that the employer would account the circumstances, such as the 541.602. This is the Department of experience in the normal course of length of the leave and the urgency of Labor regulation defining employees doing business would certainly not the need for the employee to return. who may qualify as exempt from the constitute ‘‘substantial and grievous (c) If an employee on leave does not minimum wage and overtime economic injury.’’ return to work in response to the requirements of the FLSA as executive, (d) FMLA’s ‘‘substantial and grievous employer’s notification of intent to deny administrative, professional, and economic injury’’ standard is different restoration, the employee continues to computer employees. from and more stringent than the be entitled to maintenance of health (c) A ‘‘key employee’’ must be ‘‘undue hardship’’ test under the ADA benefits and the employer may not ‘‘among the highest paid 10 percent’’ of (see also § 825.702). recover its cost of health benefit all the employees—both salaried and premiums. A key employee’s rights § 825.219 Rights of a key employee. non-salaried, eligible and ineligible— under FMLA continue unless and until who are employed by the employer (a) An employer who believes that the employee either gives notice that he within 75 miles of the worksite. reinstatement may be denied to a key or she no longer wishes to return to employee, must give written notice to work, or the employer actually denies (1) In determining which employees the employee at the time the employee reinstatement at the conclusion of the are among the highest paid 10 percent, gives notice of the need for FMLA leave leave period. year-to-date earnings are divided by (or when FMLA leave commences, if (d) After notice to an employee has weeks worked by the employee earlier) that he or she qualifies as a key been given that substantial and grievous (including weeks in which paid leave employee. At the same time, the economic injury will result if the was taken). Earnings include wages, employer must also fully inform the employee is reinstated to employment, premium pay, incentive pay, and non- employee of the potential consequences an employee is still entitled to request discretionary and discretionary bonuses. with respect to reinstatement and reinstatement at the end of the leave Earnings do not include incentives maintenance of health benefits if the period even if the employee did not whose value is determined at some employer should determine that return to work in response to the future date, e.g., stock options, or substantial and grievous economic employer’s notice. The employer must benefits or perquisites. injury to the employer’s operations will then again determine whether there will (2) The determination of whether a result if the employee is reinstated from be substantial and grievous economic salaried employee is among the highest FMLA leave. If such notice cannot be injury from reinstatement, based on the paid 10 percent shall be made at the given immediately because of the need facts at that time. If it is determined that time the employee gives notice of the to determine whether the employee is a substantial and grievous economic need for leave. No more than 10 percent key employee, it shall be given as soon injury will result, the employer shall of the employer’s employees within 75 as practicable after being notified of a notify the employee in writing (in miles of the worksite may be ‘‘key need for leave (or the commencement of person or by certified mail) of the denial employees.’’ leave, if earlier). It is expected that in of restoration.

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§ 825.220 Protection for employees who (c) The Act’s prohibition against violates the posting requirement may be request leave or otherwise assert FMLA ‘‘interference’’ prohibits an employer assessed a civil money penalty by the rights. from discriminating or retaliating Wage and Hour Division not to exceed (a) The FMLA prohibits interference against an employee or prospective $110 for each separate offense. with an employee’s rights under the employee for having exercised or (2) Covered employers must post this law, and with legal proceedings or attempted to exercise FMLA rights. For general notice even if no employees are inquiries relating to an employee’s example, if an employee on leave eligible for FMLA leave. rights. More specifically, the law without pay would otherwise be (3) If an FMLA-covered employer has contains the following employee entitled to full benefits (other than any eligible employees, it shall also protections: health benefits), the same benefits provide this general notice to each (1) An employer is prohibited from would be required to be provided to an employee by either including the notice interfering with, restraining, or denying employee on unpaid FMLA leave. By in employee handbooks distributed to the exercise of (or attempts to exercise) the same token, employers cannot use all employees or distributing a copy of any rights provided by the Act. the taking of FMLA leave as a negative the general notice to each employee at (2) An employer is prohibited from factor in employment actions, such as least annually (distribution may be by discharging or in any other way hiring, promotions or disciplinary electronic mail). discriminating against any person actions; nor can FMLA leave be counted (4) To meet the general notice (whether or not an employee) for under ‘‘no fault’’ attendance policies. requirements of this section, employers opposing or complaining about any See § 825.215. may duplicate the text of the notice unlawful practice under the Act. (d) Employees cannot waive, nor may contained in Appendix C of this part. (3) All persons (whether or not employers induce employees to waive, Where an employer’s workforce is employers) are prohibited from their prospective rights under FMLA. comprised of a significant portion of discharging or in any other way For example, employees (or their workers who are not literate in English, discriminating against any person collective bargaining representatives) the employer shall be responsible for (whether or not an employee) because cannot ‘‘trade off’’ the right to take providing the general notices in a that person has— FMLA leave against some other benefit language in which the employees are (i) Filed any charge, or has instituted offered by the employer. This does not literate. Prototypes are available in (or caused to be instituted) any prevent an employee’s voluntary and several languages from the nearest office proceeding under or related to this Act; uncoerced acceptance (not as a of the Wage and Hour Division or on the (ii) Given, or is about to give, any condition of employment) of a ‘‘light Internet at http:// information in connection with an duty’’ assignment while recovering from www.wagehour.dol.gov. Employers inquiry or proceeding relating to a right a serious health condition (see furnishing FMLA notices to sensory under this Act; § 825.702(d)). Nor does it prevent the impaired individuals must also comply (iii) Testified, or is about to testify, in settlement of past FMLA claims by with all applicable requirements under any inquiry or proceeding relating to a employees without the approval of the Federal or State law. right under this Act. Department of Labor or a court. (b) Eligibility notice. (1) When an (b) Any violations of the Act or of (e) Individuals, and not merely employee requests FMLA leave, or these regulations constitute interfering employees, are protected from when the employer acquires knowledge with, restraining, or denying the retaliation for opposing (e.g., filing a that an employee’s leave may be for an exercise of rights provided by the Act. complaint about) any practice which is FMLA-qualifying condition, the An employer may be liable for unlawful under the Act. They are employer must notify the employee compensation and benefits lost by similarly protected if they oppose any within five business days of the reason of the violation, for other actual practice which they reasonably believe employee’s eligibility to take FMLA monetary losses sustained as a direct to be a violation of the Act or leave and any additional requirements result of the violation, and for regulations. for qualifying for such leave. This appropriate equitable or other relief, eligibility notice shall provide including employment, reinstatement, Subpart C—Employee and Employer information regarding the employee’s promotion, or any other relief tailored to Rights and Obligations Under the Act eligibility for FMLA leave, detail the the harm suffered (see § 825.400(c)). specific responsibilities of the ‘‘Interfering with’’ the exercise of an § 825.300 Employer notice requirements. employee, and explain any employee’s rights would include, for (a) General notice. (1) Every employer consequences of a failure to meet these example, not only refusing to authorize covered by the FMLA is required to post responsibilities. See § 825.110 for FMLA leave, but discouraging an and keep posted on its premises, in definition of an eligible employee. employee from using such leave. It conspicuous places where employees (2) Specifically, the eligibility notice would also include manipulation by a are employed, a notice explaining the must state whether the employee is covered employer to avoid Act’s provisions and providing eligible for FMLA leave and whether the responsibilities under FMLA, for information concerning the procedures employee still has FMLA leave available example: for filing complaints of violations of the in the current applicable 12-month (1) Transferring employees from one Act with the Wage and Hour Division. FMLA leave period. If the employee is worksite to another for the purpose of The notice must be posted prominently not eligible for FMLA leave, the notice reducing worksites, or to keep where it can be readily seen by must state the reasons why the worksites, below the 50-employee employees and applicants for employee is not eligible, including as threshold for employee eligibility under employment. The poster and the text applicable that the employee has no the Act; must be large enough to be easily read remaining FMLA leave available in the (2) Changing the essential functions of and contain fully legible text. Electronic 12-month period, the number of months the job in order to preclude the taking posting is sufficient to meet this posting the employee has been employed by the of leave; requirement as long as it otherwise employer, the number of hours of (3) Reducing hours available to work meets the requirements of this service during the 12-month period, and in order to avoid employee eligibility. subsection. An employer that willfully whether the employee is employed at a

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worksite where 50 or more employees (5) The eligibility notice should be www.wagehour.dol.gov. Employers may are employed by the employer within 75 accompanied by any required medical adapt the prototype notice as miles of that worksite. certification form. appropriate to meet these notice (3) If the employee is eligible for (6) Except as provided in this section, requirements. FMLA leave and has FMLA leave the eligibility notice must be provided (c) Designation notice. (1) When the available, the eligibility notice must to the employee no less often than the employer has enough information to detail the specific expectations and first time in each six-month period that determine whether the leave qualifies as obligations of the employee and explain an employee gives notice of the need for FMLA leave (after receiving a medical any consequences of a failure to meet FMLA leave (if FMLA leave is taken certification, for example), the employer these obligations. Such specific notice during the six-month period). The must notify the employee within five must include, as appropriate: notice shall be given within a business days of making such (i) That the leave may be designated reasonable time after notice of the need determination whether the leave has or and counted against the employee’s for leave is given by the employee— has not been designated as FMLA leave annual FMLA leave entitlement if within five business days if feasible. If and the number of hours, days or weeks qualifying (see §§ 825.300(c) and leave has already begun, the notice that will be counted against the 825.301); should be mailed to the employee’s employee’s FMLA leave entitlement. If (ii) Any requirements for the address of record. it is not possible to provide the hours, employee to furnish medical (7) If the specific information days or weeks that will be counted certification of a serious health provided by the notice changes with against the employee’s FMLA leave condition and the consequences of respect to a subsequent period of FMLA entitlement (such as in the case of failing to do so (see § 825.305); leave during the six-month period, the unforeseeable intermittent leave), then (iii) The employee’s right to substitute employer shall, within five business such information must be provided paid leave, whether the employer will days of receipt of the employee’s notice every 30 days to the employee if leave of need for leave, provide written notice require the substitution of paid leave, is taken during the prior 30-day period. referencing the prior notice and setting the conditions related to any If the employer requires paid leave to be forth any of the information in the substitution, and the employee’s substituted for unpaid leave, or that eligibility notice which has changed. entitlement to take unpaid FMLA leave paid leave taken under an existing leave For example, if the initial leave period if the employee does not comply; plan be counted as FMLA leave, this was paid leave and the subsequent leave designation also must be made at the (iv) Any requirement for the employee period would be unpaid leave, the time of the FMLA designation. to make any premium payments to employer may need to give notice of the (2) This designation notice must be in maintain health benefits and the arrangements for making premium writing, but may be in any form, arrangements for making such payments payments. including a notation on the employee’s (see § 825.210), and the possible (8)(i) Except as provided in paragraph pay stub. See § 825.301 for rules on consequences of failure to make such (b)(8)(ii) of this section, if the employer leave designation. If the leave is not payments on a timely basis (i.e., the is requiring medical certification or a designated as FMLA leave because it circumstances under which coverage ‘‘fitness-for-duty’’ report, written notice does not meet the requirements of the may lapse); of the requirement shall be given with Act, the notice to the employee that the (v) Any requirement for the employee respect to each employee notice of a leave is not designated as FMLA leave to present a fitness-for-duty certificate to need for leave. may be in the form of a simple written be restored to employment and a list of (ii) Subsequent written notification statement. the essential functions of the employee’s shall not be required if the initial (3) If the employer has sufficient position if the employer will require eligibility notice in the six-month information to designate the leave as that the fitness-for-duty certification period and the employer handbook or FMLA leave immediately after receiving address those functions (see § 825.310); other written documents (if any) notice of the employee’s need for leave, (vi) The employee’s status as a ‘‘key describing the employer’s leave policies, an employer may provide an employee employee’’ and the potential clearly provided that certification or a with the designation notice consequence that restoration may be ‘‘fitness-for-duty’’ report would be immediately, and also must provide the denied following FMLA leave, required (e.g., by stating that employee with the information required explaining the conditions required for certification would be required in all in the eligibility notice as set forth in such denial (see § 825.218); cases, by stating that certification would paragraph (b)(3) of this section. (vii) The employee’s rights to be required in all cases in which leave (4) A prototype designation notice is maintenance of benefits during the of more than a specified number of days contained in Appendix E of this part; FMLA leave and restoration to the same is taken, or by stating that a ‘‘fitness-for- the prototype designation notice may be or an equivalent job upon return from duty’’ report would be required in all obtained from local offices of the Wage FMLA leave (see §§ 825.214 and cases for back injuries for employees in and Hour Division or from the Internet 825.604); and a certain occupation). Where subsequent at www.wagehour.dol.gov. (viii) The employee’s potential written notice is not required, at least (d) Consequences of failing to provide liability for payment of health insurance oral notice shall be provided. See notice. Failure to follow the notice premiums paid by the employer during § 825.305(a). requirements set forth in this section the employee’s unpaid FMLA leave if (9) Employers are also expected to may constitute an interference with, the employee fails to return to work responsively answer questions from restraint or denial of the exercise of an after taking FMLA leave (see § 825.213). employees concerning their rights and employee’s FMLA rights. An employer (4) The eligibility notice may include responsibilities under the FMLA. may be liable for compensation and other information—e.g., whether the (10) A prototype eligibility notice is benefits lost by reason of the violation, employer will require periodic reports contained in Appendix D of this part; for other actual monetary losses of the employee’s status and intent to the prototype may be obtained from sustained as a direct result of the return to work—but is not required to local offices of the Wage and Hour violation, and for appropriate equitable do so. Division or from the Internet at http:// or other relief, including employment,

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reinstatement, promotion, or any other their plans for using their accrued leave. notice that an employee needed FMLA relief tailored to the harm suffered (see An employee requesting or notifying the leave failed to designate the leave § 825.400(c)). employer of an intent to use accrued properly, but the employee’s own paid leave, even if for a purpose covered serious health condition prevented the § 825.301 Employer designation of FMLA by FMLA, would not need to assert such employee from returning to work during leave. right either. However, if an employee that time period regardless of the (a) Employer responsibilities. In all requesting to use paid leave for an designation, an employee may not be circumstances, it is the employer’s FMLA-qualifying purpose does not able to show that the employee suffered responsibility to designate leave, paid or explain the reason for the leave— harm as a result of the employer’s unpaid, as FMLA-qualifying, and to give consistent with the employer’s actions. However, if an employee took notice of the designation to the established policy or practice—and the leave to provide care for a son or employee as provided in § 825.300. In employer denies the employee’s request, daughter with a serious health condition the case of intermittent leave or leave on the employee will need to provide believing it would not count toward the a reduced schedule, only one such sufficient information to establish an employee’s FMLA entitlement, and the notice is required unless the FMLA-qualifying reason for the needed employee planned to later use that circumstances regarding the leave have leave so that the employer is aware of FMLA leave to provide care for a spouse changed. The employer’s designation the employee’s entitlement (i.e., that the who would need assistance when decision must be based only on leave may not be denied) and, then, may recovering from surgery planned for a information received from the employee designate that the paid leave be later date, the employee may be able to or the employee’s spokesperson (e.g., if appropriately counted against show that harm has occurred as a result the employee is incapacitated, the (substituted for) the employee’s 12-week of the employer’s failure to designate employee’s spouse, adult child, parent, entitlement. Similarly, an employee properly. The employee might establish doctor, etc., may provide notice to the using accrued paid vacation leave who this by showing that he or she would employer of the need to take FMLA seeks an extension of unpaid leave for have arranged for an alternative leave). In any circumstance where the an FMLA-qualifying purpose will need caregiver for the seriously-ill son or employer does not have sufficient to state the reason. If this is due to an daughter if the leave had been information about the reason for an event which occurred during the period designated timely. employee’s use of leave, the employer of paid leave, the employer may count should inquire further of the employee the leave used after the FMLA- § 825.302 Employee notice requirements for foreseeable FMLA leave. or the spokesperson to ascertain qualifying event against the employee’s whether paid leave is potentially FMLA- 12-week entitlement. (a) Timing of notice. An employee qualifying. Once the employer has (c) Disputes. If there is a dispute must provide the employer at least 30 acquired knowledge that the leave is between an employer and an employee days’ advance notice before FMLA leave being taken for an FMLA required as to whether paid leave qualifies as is to begin if the need for the leave is reason, the employer must notify the FMLA leave, it should be resolved foreseeable based on an expected birth, employee within five business days, through discussions between the placement for adoption or foster care, or absent extenuating circumstances, that employee and the employer. Such planned medical treatment for a serious the leave is designated and will be discussions and the decision must be health condition of the employee or of counted as FMLA leave. documented. a family member. If 30 days notice is not (b) Employee responsibilities. As (d) Retroactive designation. If an practicable, such as because of a lack of noted in §§ 825.302(c) and 825.303(b), employer does not designate leave as knowledge of approximately when leave an employee giving notice of the need required by § 825.300, the employer will be required to begin, a change in for FMLA leave does not need to may retroactively designate leave as circumstances, or a medical emergency, expressly assert rights under the Act or FMLA leave with appropriate notice to notice must be given as soon as even mention the FMLA to meet his or the employee as required by § 825.300 practicable. For example, an employee’s her obligation to provide notice, though provided that the employer’s failure to health condition may require leave to the employee would need to state a timely designate leave does not cause commence earlier than anticipated qualifying reason for the needed leave harm or injury to the employee. In all before the birth of a child. Similarly, and otherwise satisfy the notice cases where leave would qualify for little opportunity for notice may be requirements set forth in § 825.302 or FMLA protections, an employer and an given before placement for adoption. § 825.303 depending on whether the employee can mutually agree that leave Whether the leave is to be continuous or need for leave is foreseeable or be retroactively designated as FMLA is to be taken intermittently or on a unforeseeable. An employee giving leave. reduced schedule basis, notice need notice of the need for FMLA leave must (e) Remedies. If an employer’s failure only be given one time, but the explain the reasons for the needed leave to timely designate leave in accordance employee shall advise the employer as so as to allow the employer to determine with § 825.300 causes the employee to soon as practicable if dates of scheduled that the leave qualifies under the Act. If suffer harm, it may constitute an leave change or are extended, or were the employee fails to explain the interference with, restraint of or denial initially unknown. In those cases where reasons, leave may be denied. In many of the exercise of an employee’s FMLA the employee does not provide at least cases, in explaining the reasons for a rights. An employer may be liable for 30 days notice of foreseeable leave, the request to use paid leave, especially compensation and benefits lost by employee shall explain the reasons why when the need for the leave was reason of the violation, for other actual such notice was not practicable upon a unexpected or unforeseen, an employee monetary losses sustained as a direct request from the employer for such will provide sufficient information for result of the violation, and for information. the employer to designate the paid leave appropriate equitable or other relief, (b) As soon as practicable means as as FMLA leave. An employee using including employment, reinstatement, soon as both possible and practical, accrued paid leave, especially vacation promotion, or any other relief tailored to taking into account all of the facts and or personal leave, may in some cases not the harm suffered (see § 825.400(c)). For circumstances in the individual case. spontaneously explain the reasons or example, if an employer that was put on For example, where an employee learns

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during the work day on Monday that a individual. Unusual circumstances provide notice to the employer as soon scheduled doctor appointment has been would include situations such as when as practicable under the facts and rescheduled from Friday to Wednesday an employee is unable to call in due to circumstances of the particular case. of the same week, it would ordinarily be his/her medical condition and his/her Where the need for leave is practicable for the employee to provide spouse calls the direct supervisor to unforeseeable, it is expected that an notice of the schedule change to the report the absence instead of calling the employee will give notice to the employer before the end of the work human resources department as employer promptly. Notice may be day. If the employee did not learn of the required by the employer policy. Where given by the employee’s spokesperson change in the scheduled appointment an employee does not comply with the (e.g., spouse, adult family member or until after work hours, the employee employer’s usual notice and procedural other responsible party) if the employee should be able to provide the employer requirements, and no unusual is unable to do so personally. For with notice the next business day. circumstances justify the failure to example, if an employee’s child has a (c) Content of notice. An employee comply, FMLA-protected leave may be severe asthma attack and the employee shall provide at least verbal notice delayed or denied. However, FMLA- takes the child to the emergency room, sufficient to make the employer aware protected leave may not be delayed or the employee would not be required to that the employee needs FMLA- denied where the employer’s policy leave his or her child in order to report qualifying leave, and the anticipated requires notice to be given sooner than the absence while the child is receiving timing and duration of the leave. The set forth in paragraph (a) of this section emergency treatment. However, if the employee need not expressly assert and the employee provides timely child’s asthma attack required only the rights under the FMLA or even mention notice as set forth in paragraph (a) of use of an inhaler at home followed by the FMLA. The employee must provide this section. period of rest, the employee would be sufficient information that indicates that (e) Scheduling planned medical expected to call the employer promptly a condition renders the employee treatment. When planning medical after ensuring the child has used the unable to perform the functions of the treatment, the employee must consult inhaler. job, or if the leave is for a family with the employer and make a (b) Content of notice. An employee member, that the condition renders the reasonable effort to schedule the shall provide sufficient information for family member unable to perform daily treatment so as not to disrupt unduly an employer to reasonably determine activities; the anticipated duration of the employer’s operations, subject to the whether the FMLA may apply to the the absence; and whether the employee approval of the health care provider. leave request. The employee need not or the employee’s family member Employees are ordinarily expected to expressly assert rights under the FMLA intends to visit a health care provider or consult with their employers prior to or even mention the FMLA. The has a condition for which the employee the scheduling of treatment in order to employee must provide sufficient or the employee’s family member is work out a treatment schedule which information that indicates that a under the continuing care of a health best suits the needs of both the condition renders the employee unable care provider. The employer should employer and the employee. If an to perform the functions of the job, or inquire further of the employee if it is employee who provides notice of the if the leave is for a family member, that necessary to have more information need to take FMLA leave on an the condition renders the family about whether FMLA leave is being intermittent basis for planned medical member unable to perform daily sought by the employee, and obtain the treatment neglects to consult with the activities; the anticipated duration of necessary details of the leave to be employer to make a reasonable effort to the absence; and whether the employee taken. In the case of medical conditions, arrange the schedule of treatments so as or the employee’s family member the employer may find it necessary to not to unduly disrupt the employer’s intends to visit a health care provider or inquire further to determine if the leave operations, the employer may initiate has a condition for which the employee is because of a serious health condition discussions with the employee and or the employee’s family member is and may request medical certification to require the employee to attempt to make under the continuing care of a health support the need for such leave (see such arrangements, subject to the care provider. Calling in ‘‘sick’’ without § 825.305). An employee has an approval of the health care provider. See providing more information will not be obligation to respond to an employer’s §§ 825.203 and 825.205. considered sufficient notice to trigger an questions designed to determine (f) In the case of intermittent leave or employer’s obligations under the Act. whether an absence is potentially leave on a reduced leave schedule The employer will be expected to obtain FMLA-qualifying. Failure to respond to which is medically necessary, an any additional required information reasonable employer inquiries regarding employee shall advise the employer, through informal means. An employee the leave request may result in denial of upon request, of the reasons why the has an obligation to respond to an FMLA protection if the employer is intermittent/reduced leave schedule is employer’s questions designed to unable to determine whether the leave necessary and of the schedule for determine whether an absence is is FMLA-qualifying. treatment, if applicable. The employee potentially FMLA-qualifying. Failure to (d) Complying with employer policy. and employer shall attempt to work out respond to reasonable employer An employer may require an employee a schedule which meets the employee’s inquiries regarding the leave request to comply with the employer’s usual needs without unduly disrupting the may result in denial of FMLA protection and customary notice and procedural employer’s operations, subject to the if the employer is unable to determine requirements for requesting leave, approval of the health care provider. whether the leave is FMLA-qualifying. absent unusual circumstances. For (g) An employer may waive (c) Complying with employer policy. example, an employer may require that employees’ FMLA notice requirements. When the need for leave is not written notice set forth the reasons for foreseeable, an employee must comply the requested leave, the anticipated § 825.303 Employee notice requirements with the employer’s usual and duration of the leave, and the for unforeseeable FMLA leave. customary notice and procedural anticipated start of the leave. An (a) Timing of notice. When the requirements for requesting leave, employee also may be required by an approximate timing of the need for leave except when extraordinary employer’s policy to contact a specific is not foreseeable, an employee must circumstances exist. For example, an

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employer may require employees to call the facts of the particular case. For leave or within five business days a designated number or a specific example, if an employee reasonably thereafter, or, in the case of unforeseen individual to request leave. However, if should have given the employer two leave, within five business days after the an employee requires emergency weeks notice but instead only provided leave commences. The employer may medical treatment, he or she would not one week notice, then the employer may request certification at some later date if be required to follow the call-in delay FMLA-protected leave for one the employer later has reason to procedure until his or her condition is week (thus, if the employer elects to question the appropriateness of the stabilized and he or she has access to, delay FMLA coverage and the employee leave or its duration. The employee and is able to use, a phone. FMLA- nonetheless takes leave one week after must provide the requested certification protected leave may not be delayed or providing the notice (i.e., a week before to the employer within the time frame denied where the employer’s policy the two week notice period has been requested by the employer (which must requires notice to be given sooner than met) the leave will not be FMLA- allow at least 15 calendar days after the set forth in paragraph (a) of this section protected). employer’s request), unless it is not and the employee provides timely (d) Unforeseeable leave. When the practicable under the particular notice as set forth in paragraph (a) of need for FMLA leave is unforeseeable circumstances to do so despite the this section. In the case of a medical and an employee fails to give notice in employee’s diligent, good faith efforts. emergency requiring leave because of an accordance with § 825.303, the extent to (c) Complete and sufficient employee’s own serious health which an employer may delay FMLA certification. The employee must condition or to care for a family member coverage for leave depends on the facts provide a complete and sufficient with a serious health condition, written of the particular case. For example, if it medical certification to the employer if advance notice pursuant to an would have been practicable for an required by the employer in accordance employer’s internal rules and employee to have given the employer with § 825.306. The employer shall procedures may not be required when notice of the need for leave promptly, advise an employee whenever the FMLA leave is involved. but instead the employee provided employer finds a certification notice two days after the leave began, incomplete or insufficient, and shall § 825.304 Employee failure to provide then the employer may delay FMLA state in writing what additional notice. coverage of the leave by two days. information is necessary to make the (a) Waiver of notice. An employer (e) Proper notice required. In all cases, certification complete and sufficient. A may waive employees’ FMLA notice in order for the onset of an employee’s certification is considered incomplete if obligations or the employer’s own FMLA leave to be delayed due to lack the employer receives a certification, internal rules on leave notice of required notice, it must be clear that but one or more of the applicable entries requirements. If an employer does not the employee had actual notice of the have not been completed. A certification waive the employee’s obligations under FMLA notice requirements. This is considered insufficient if the its internal leave rules, the employer condition would be satisfied by the employer receives a complete may take appropriate action under its employer’s proper posting of the certification, but the information internal rules and procedures for failure required notice at the worksite where provided is vague, ambiguous or non- to follow its usual and customary the employee is employed and the responsive. The employer must provide notification rules as long as the actions employer’s provision of the required the employee with seven calendar days are taken in a manner that does not notice in either an employee handbook (unless not practicable under the discriminate against employees taking or annual distribution, as required by particular circumstances despite the FMLA leave and the rules are not § 825.300. employee’s diligent good faith efforts) to inconsistent with § 825.303(a). cure any such deficiency. If the (b) Foreseeable leave—30 days. When § 825.305 Medical certification, general deficiencies specified by the employer the need for FMLA leave is foreseeable rule. are not cured in the resubmitted at least 30 days in advance and an (a) General. An employer may require certification, the employer may deny the employee fails to give timely advance that an employee’s leave to care for the taking of FMLA leave, in accordance notice with no reasonable excuse, the employee’s seriously ill spouse, son, with § 825.311. A certification that is employer may delay FMLA coverage daughter, or parent, or due to the not returned to the employer is not until 30 days after the date the employee’s own serious health considered incomplete or insufficient, employee provides notice. The need for condition that makes the employee but constitutes a failure to provide leave and the approximate date leave unable to perform one or more of the certification. would be taken must have been clearly essential functions of the employee’s (d) Consequences. At the time the foreseeable to the employee 30 days in position, be supported by a certification employer requests certification, the advance of the leave. For example, issued by the health care provider of the employer must also advise an employee knowledge that an employee would employee or the employee’s ill family of the anticipated consequences of an receive a telephone call about the member. An employer must give notice employee’s failure to provide adequate availability of a child for adoption at of a requirement for medical certification. If the employee fails to some unknown point in the future certification each time a certification is provide the employer with a complete would not be sufficient to establish the required; such notice must be written and sufficient medical certification, leave was clearly foreseeable 30 days in notice whenever required by despite the opportunity to cure the advance. § 825.300(b). An employer’s oral request certification as provided in paragraph (c) Foreseeable leave—less than 30 to an employee to furnish any (c) of this section, or fails to provide any days. When the need for FMLA leave is subsequent medical certification is certification, the employer may deny the foreseeable fewer than 30 days in sufficient. taking of FMLA leave, in accordance advance and an employee fails to give (b) Timing. In most cases, the with § 825.311. It is the employee’s notice as soon as practicable under the employer should request that an responsibility either to furnish a particular facts and circumstances, the employee furnish certification from a complete and sufficient certification or extent to which an employer may delay health care provider at the time the to furnish the health care provider FMLA coverage for leave depends on employee gives notice of the need for providing the certification with any

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necessary authorization from the (6) If an employee requests leave on qualify for payments or benefits, employee or the employee’s family an intermittent or reduced schedule provided that the employer informs the member in order for the health care basis for planned medical treatment of employee that the additional provider to release a complete and the employee or a qualified family information only needs to be provided sufficient certification to the employer member, information sufficient to in connection with receipt of such to support the employee’s FMLA establish the medical necessity for such payments or benefits. If the employee request. This provision will apply in intermittent or reduced schedule leave fails to provide the information required any case where an employer requests a and an estimate of the dates and for receipt of such payments or benefits, certification permitted by these duration of such treatments and any the employee’s entitlement to take regulations, whether it is the initial periods of recovery; unpaid FMLA leave will not be affected. certification, a recertification, a second (7) If an employee requests leave on See § 825.207(a). or third opinion, or a fitness for duty an intermittent or reduced schedule (d) If an employee’s serious health certificate, including any clarifications basis for the employee’s health condition may also be a disability necessary to determine if such condition, including pregnancy, that within the meaning of the Americans certifications are authentic and may result in unforeseeable episodes of with Disabilities Act (ADA), the FMLA sufficient. See §§ 825.306, 825.307, incapacity, information sufficient to does not prevent the employer from 825.308, and 825.310. establish the medical necessity for such following the procedures for requesting (e) Annual medical certification. intermittent or reduced schedule leave medical information under the ADA. Where the employee’s need for leave and an estimate of the frequency and (e) While an employee may choose to due to the employee’s own serious duration of the episodes of incapacity; comply with the certification health condition, or the serious health and requirement by providing the employer condition of the employee’s spouse, son, (8) If an employee requests leave on with an authorization release or waiver daughter, or parent lasts beyond a single an intermittent or reduced schedule allowing the employer to communicate leave year (as defined in § 825.200), the basis to care for a qualified family directly with the employee’s health care employer may require the employee to member, a statement that such leave is provider, the employee may not be provide a new medical certification in medically necessary to care for the required to provide such an each subsequent leave year. family member, as described in authorization release or waiver. In all §§ 825.124 and 825.203(b), which can instances in which certification is § 825.306 Content of medical certification. include assisting in the family member’s requested, it is the employee’s (a) Required information. An recovery, and an estimate of the responsibility to provide the employer employer may require an employee to frequency and duration of the required with complete and sufficient obtain a medical certification from a leave. certification and failure to do so may health care provider that sets forth the (b) DOL has developed an optional result in the denial of FMLA leave. See following information: form (Form WH–380, as revised) for § 825.305(d). (1) The name, address, telephone employees’ (or their family members’) number, and fax number of the health use in obtaining medical certification, § 825.307 Authentication and clarification of medical certification. care provider and type of medical including second and third opinions, practice, including pertinent from health care providers that meets (a) Clarification and authentication. If specialization; FMLA’s certification requirements. (See an employee submits a complete and (2) The approximate date on which Appendix B to these regulations.) This sufficient certification signed by the the serious health condition optional form reflects certification health care provider, the employer may commenced, and its probable duration; requirements so as to permit the health not request additional information from (3) A statement or description of care provider to furnish appropriate the employee’s health care provider. appropriate medical facts regarding the medical information within his or her However, the employer may contact the patient’s health condition for which knowledge. Form WH–380, as revised, employee’s health care provider for FMLA leave is requested. The medical or another form containing the same purposes of clarification and facts must be sufficient to support the basic information, may be used by the authentication of the medical need for leave. Such medical facts may employer; however, no information may certification (whether initial include information on symptoms, be required beyond that specified in certification or recertification) after the diagnosis, hospitalization, doctor visits, §§ 825.306, 825.307, and 825.308. In all employer has given the employee an whether medication has been instances the information on the form opportunity to cure any deficiencies as prescribed, any referrals for evaluation must relate only to the serious health set forth in § 825.305(c). For purposes of or treatment (physical therapy, for condition for which the current need for these regulations, ‘‘authentication’’ example), or any other regimen of leave exists. means providing the health care continuing treatment; (c) If an employee is on FMLA leave provider with a copy of the certification (4) If the employee is the patient, running concurrently with a workers’ and requesting verification that the information sufficient to establish that compensation absence, and the information contained on the the employee cannot perform the provisions of the workers’ compensation certification form was completed and/or functions of the employee’s job, as well statute permit the employer or the authorized by the health care provider as the nature of any other work employer’s representative to request who signed the document; no additional restrictions, and the likely duration of additional information from the medical information may be requested such inability (see § 825.123(b) and (c)); employee’s workers’ compensation and the employee’s permission is not (5) If the patient is a qualified family health care provider, the FMLA does not required. ‘‘Clarification’’ means member, information sufficient to prevent the employer from following the contacting the health care provider to establish that the family member is in workers’ compensation provisions. understand the handwriting on the need of care, as described in § 825.124, Similarly, an employer may request medical certification or to understand and an estimate of the frequency and additional information in accordance the meaning of a response. Employers duration of the leave required to care for with a paid leave policy or disability may not ask health care providers for the family member; plan that requires greater information to additional information beyond that

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required by the certification form. to obtain certification from a third § 825.308 Recertifications. Contact between the employer and the health care provider, again at the (a) 30-day rule. Generally, an employee’s health care provider for employer’s expense. This third opinion employer may request recertification no purposes of clarification must comply shall be final and binding. The third more often than every 30 days and only with the requirements of the Health health care provider must be designated in connection with an absence by the Insurance Portability and or approved jointly by the employer and employee. Accountability Act (‘‘HIPAA’’) Privacy the employee. The employer and the (b) More than 30 days. If the medical Rule (see 45 CFR parts 160 and 164). If employee must each act in good faith to certification indicates that the minimum an employee chooses not to provide the attempt to reach agreement on whom to duration of incapacity is more than 30 employer with authorization allowing select for the third opinion provider. If days, an employer must wait until that the employer to clarify the certification the employer does not attempt in good minimum duration expires before with the employee’s health care faith to reach agreement, the employer requesting a recertification, unless provider, and does not otherwise clarify will be bound by the first certification. paragraph (c) applies. For example, if the certification, the employer may deny If the employee does not attempt in the medical certification states that an the taking of FMLA leave if the good faith to reach agreement, the employee will be unable to work, certification is unclear. See § 825.305(d). employee will be bound by the second whether continuously or on an It is the employee’s responsibility to certification. For example, an employee intermittent basis, for 40 days, the provide the employer with a complete who refuses to agree to see a doctor in employer must wait 40 days before and sufficient certification or to provide the specialty in question may be failing requesting a recertification. In all cases, the health care provider with sufficient to act in good faith. On the other hand, an employer may request a authorization from the employee or the an employer that refuses to agree to any recertification every six months in employee’s family member to clarify the doctor on a list of specialists in the connection with an absence by the certification so that it is complete and appropriate field provided by the employee. sufficient. employee and whom the employee has (c) Less than 30 days. An employer (b) Second opinion. (1) An employer not previously consulted may be failing may request recertification in less than who has reason to doubt the validity of to act in good faith. In addition, the 30 days if: a medical certification may require the consequences set forth in § 825.305(d) (1) The employee requests an employee to obtain a second opinion at will apply if the employee or the extension of leave; the employer’s expense. Pending receipt employee’s family member fails to (2) Circumstances described by the of the second (or third) medical opinion, authorize his or her health care provider previous certification have changed the employee is provisionally entitled to to release all relevant medical significantly (e.g., the duration or the benefits of the Act, including information pertaining to the serious frequency of the absence, the nature or maintenance of group health benefits. If health condition at issue if requested by severity of the illness, complications). the certifications do not ultimately the health care provider designated to For example, if a medical certification establish the employee’s entitlement to provide a third opinion in order to stated that an employee would need FMLA leave, the leave shall not be render a sufficient and complete third leave for one to two days when the designated as FMLA leave and may be opinion. employee suffered a migraine headache treated as paid or unpaid leave under (d) Copies of opinions. The employer and the employee’s absences for his/her the employer’s established leave is required to provide the employee last two migraines lasted four days each, policies. In addition, the consequences with a copy of the second and third then the increased duration of absence set forth in § 825.305(d) will apply if the medical opinions, where applicable, might constitute a significant change in employee or the employee’s family upon request by the employee. circumstances allowing the employer to member fails to authorize his or her Requested copies are to be provided request a recertification in less than 30 health care provider to release all within five business days unless days. Likewise, if an employee had a relevant medical information pertaining extenuating circumstances prevent such pattern of using unscheduled FMLA to the serious health condition at issue action. leave for migraines in conjunction with if requested by the health care provider (e) Travel expenses. If the employer his/her scheduled days off, then the designated to provide a second opinion requires the employee to obtain either a timing of the absences also might in order to render a sufficient and second or third opinion, the employer constitute a significant change in complete second opinion. must reimburse an employee or family circumstances sufficient for an (2) The employer is permitted to member for any reasonable ‘‘out of employer to request a recertification designate the health care provider to pocket’’ travel expenses incurred to more frequently than every 30 days; or furnish the second opinion, but the obtain the second and third medical (3) The employer receives information selected health care provider may not be opinions. The employer may not require that casts doubt upon the employee’s employed on a regular basis by the the employee or family member to travel stated reason for the absence or the employer. The employer may not outside normal commuting distance for continuing validity of the certification. regularly contract with or otherwise purposes of obtaining the second or For example, if an employee is on regularly utilize the services of the third medical opinions except in very FMLA leave for four weeks due to the health care provider furnishing the unusual circumstances. employee’s knee surgery, including second opinion unless the employer is (f) Medical certification abroad. In recuperation, and the employee plays in located in an area where access to circumstances when the employee or a company softball league games during health care is extremely limited (e.g., a family member is visiting in another the employee’s third week of FMLA rural area where no more than one or country, or a family member resides in leave, such information might be two doctors practice in the relevant another country, and a serious health sufficient to cast doubt upon the specialty in the vicinity). condition develops, the employer shall continuing validity of the certification (c) Third opinion. If the opinions of accept a medical certification as well as allowing the employer to request a the employee’s and the employer’s second and third opinions from a health recertification in less than 30 days. designated health care providers differ, care provider who practices in that (d) Timing. The employee must the employer may require the employee country. provide the requested recertification to

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the employer within the time frame changed circumstances where the employee can perform the identified requested by the employer (which must foreseeable. The employer may also essential functions of his or her job. allow at least 15 calendar days after the obtain information on such changed Following the procedures set forth in employer’s request), unless it is not circumstances through requested status § 825.307(a), the employer may contact practicable under the particular reports. the employee’s health care provider for circumstances to do so despite the purposes of clarifying and employee’s diligent, good faith efforts. § 825.310 Fitness-for-duty certification. authenticating the fitness-for-duty (e) Content. The employer may ask for (a) As a condition of restoring an certification. Clarification may be the same information when obtaining employee whose FMLA leave was requested only for the serious health recertification as that permitted for the occasioned by the employee’s own condition for which FMLA leave was original certification as set forth in serious health condition that made the taken. The employer may not delay the § 825.306. The employee has the same employee unable to perform the employee’s return to work while contact obligations to participate and cooperate employee’s job, an employer may have with the health care provider is being (including providing a complete and a uniformly-applied policy or practice made. sufficient certification or adequate that requires all similarly-situated (d) The cost of the certification shall authorization to the health care employees (i.e., same occupation, same be borne by the employee, and the provider) in the recertification process serious health condition) who take leave employee is not entitled to be paid for as in the initial certification process. See for such conditions to obtain and the time or travel costs spent in § 825.305(d). As part of the information present certification from the acquiring the certification. allowed to be obtained on employee’s health care provider that the (e) The eligibility notice required in recertification, the employer may employee is able to resume work. The § 825.300(b) shall advise the employee if provide the health care provider with a employee has the same obligations to the employer will require fitness-for- record of the employee’s absence participate and cooperate (including duty certification to return to work. No pattern and ask the health care provider providing a complete and sufficient second or third fitness-for-duty if the serious health condition and need certification or providing sufficient certification may be required. for leave is consistent with such a authorization to the health care provider (f) An employer may delay restoration pattern. to provide the information directly to to employment until an employee (f) Any recertification requested by the employer) in the fitness-for-duty submits a required fitness-for-duty the employer shall be at the employee’s certification process as in the initial certification unless the employer has expense unless the employer provides certification process. See § 825.305(d). failed to provide the notice required in otherwise. No second or third opinion (b) If State or local law or the terms paragraph (e) of this section. If an on recertification may be required. of a collective bargaining agreement employer provides the notice required, govern an employee’s return to work, an employee who does not provide a § 825.309 Intent to return to work. those provisions shall be applied. fitness-for-duty certification or request (a) An employer may require an Similarly, requirements under the additional FMLA leave is no longer employee on FMLA leave to report Americans with Disabilities Act (ADA) entitled to reinstatement under the periodically on the employee’s status that any return-to-work physical be job- FMLA. See § 825.311(d). and intent to return to work. The related and consistent with business (g) An employer is not entitled to employer’s policy regarding such necessity apply. For example, an certification of fitness to return to duty reports may not be discriminatory and attorney could not be required to submit for each absence taken on an must take into account all of the to a medical examination or inquiry just intermittent or reduced leave schedule relevant facts and circumstances related because her leg had been amputated. as set forth in §§ 825.203 through to the individual employee’s leave The essential functions of an attorney’s 825.205. However, an employer is situation. job do not require use of both legs; entitled to a certification of fitness to (b) If an employee gives unequivocal therefore such an inquiry would not be return to duty for such absences up to notice of intent not to return to work, job related. An employer may require a once every 30 days if reasonable safety the employer’s obligations under FMLA warehouse laborer, whose back concerns exist regarding the employee’s to maintain health benefits (subject to impairment affects the ability to lift, to ability to perform his or her duties, COBRA requirements) and to restore the be examined by an orthopedist, but may based on the serious health condition employee cease. However, these not require this employee to submit to for which the employee took such leave. obligations continue if an employee an HIV test where the test is not related The employer may not terminate the indicates he or she may be unable to to either the essential functions of his/ employment of the employee while return to work but expresses a her job or to his/her impairment. awaiting such a certification of fitness to continuing desire to do so. (c) An employer may seek fitness-for- return to duty for an intermittent or (c) It may be necessary for an duty certification only with regard to reduced schedule leave absence. employee to take more leave than the particular health condition that originally anticipated. Conversely, an caused the employee’s need for FMLA § 825.311 Failure to provide medical employee may discover after beginning leave. The certification from the certification. leave that the circumstances have employee’s health care provider must (a) Foreseeable leave. In the case of changed and the amount of leave certify that the employee is able to foreseeable leave, if an employee fails to originally anticipated is no longer resume work. An employer may require provide certification in a timely manner necessary. An employee may not be that the certification address the as required by § 825.305, then an required to take more FMLA leave than employee’s ability to perform the employer may deny FMLA coverage necessary to resolve the circumstance essential functions of the employee’s job until the required certification is that precipitated the need for leave. In by providing a list of essential functions provided. For example, if an employee both of these situations, the employer with the eligibility notice required by has 15 days to provide a certification may require that the employee provide § 825.300(b). If the employer timely and does not provide the certification the employer reasonable notice (i.e., provides such a list, the employee’s for 45 days without sufficient reason for within two business days) of the health care provider must certify that the delay, the employer can deny FMLA

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protections for the 30 day period (1) Filing, or having another person (c) No particular form of complaint is following the expiration of the 15 day file on his or her behalf, a complaint required, except that a complaint must time period, if the employee takes leave with the Secretary of Labor, or be reduced to writing and should during such period. (2) Filing a private lawsuit pursuant include a full statement of the acts and/ (b) Unforeseeable leave. In the case of to section 107 of FMLA. or omissions, with pertinent dates, unforeseeable leave, an employer may (b) If the employee files a private which are believed to constitute the deny FMLA coverage for the requested lawsuit, it must be filed within two violation. leave if the employee fails to provide a years after the last action which the § 825.402 Violations of the posting medical certification within 15 calendar employee contends was in violation of requirement. days from receipt of the request for the Act, or three years if the violation Section 825.300 describes the certification unless not practicable due was willful. requirements for covered employers to to extenuating circumstances. For (c) If an employer has violated one or post a notice for employees that example, in the case of a medical more provisions of FMLA, and if explains the Act’s provisions. If a emergency, it may not be practicable for justified by the facts of a particular case, representative of the Department of an employee to provide the required an employee may receive one or more Labor determines that an employer has certification within 15 calendar days. of the following: wages, employment committed a willful violation of this Absent such extenuating circumstances, benefits, or other compensation denied posting requirement, and that the if the employee fails to timely return the or lost to such employee by reason of imposition of a civil money penalty for certification, the employer can deny the violation; or, where no such tangible such violation is appropriate, the FMLA protections for the leave loss has occurred, such as when FMLA representative may issue and serve a following the expiration of the 15-day leave was unlawfully denied, any actual notice of penalty on such employer in time period until a sufficient monetary loss sustained by the person or by certified mail. Where certification is provided. If the employee as a direct result of the service by certified mail is not accepted, employee never produces the violation, such as the cost of providing notice shall be deemed received on the certification, the leave is not FMLA care, up to a sum equal to 12 weeks of date of attempted delivery. Where leave. wages for the employee. In addition, the service is not accepted, the notice may (c) Recertification. An employee must employee may be entitled to interest on be served by regular mail. provide recertification within the time such sum, calculated at the prevailing requested by the employer (which must rate. An amount equaling the preceding § 825.403 Appealing the assessment of a penalty for willful violation of the posting allow at least 15 calendar days after the sums may also be awarded as liquidated requirement. request) or as soon as practicable under damages unless such amount is reduced the particular facts and circumstances. If by the court because the violation was (a) An employer may obtain a review an employee fails to provide a in good faith and the employer had of the assessment of penalty from the recertification within a reasonable time reasonable grounds for believing the Wage and Hour Regional Administrator under the particular facts and employer had not violated the Act. for the region in which the alleged circumstances, then the employer may When appropriate, the employee may violation(s) occurred. If the employer deny continuation of the FMLA leave also obtain appropriate equitable relief, does not seek such a review or fails to protections until the employee produces such as employment, reinstatement and do so in a timely manner, the notice of a sufficient recertification. If the promotion. When the employer is found the penalty constitutes the final ruling employee never produces the in violation, the employee may recover of the Secretary of Labor. (b) To obtain review, an employer recertification, the leave is not FMLA a reasonable attorney’s fee, reasonable may file a petition with the Wage and leave. expert witness fees, and other costs of Hour Regional Administrator for the the action from the employer in (d) Fitness-for-duty certification. region in which the alleged violations addition to any judgment awarded by When requested by the employer occurred. No particular form of petition the court. pursuant to a uniformly applied policy for review is required, except that the for similarly-situated employees, the § 825.401 Filing a complaint with the petition must be in writing, should employee must provide medical Federal Government. contain the legal and factual bases for certification at the time the employee (a) A complaint may be filed in the petition, and must be mailed to the seeks reinstatement at the end of FMLA Regional Administrator within 15 days leave taken for the employee’s serious person, by mail or by telephone, with the Wage and Hour Division, of receipt of the notice of penalty. The health condition, that the employee is employer may request an oral hearing fit for duty and able to return to work Employment Standards Administration, U.S. Department of Labor. A complaint which may be conducted by telephone. (see § 825.310(a)) if the employer has (c) The decision of the Regional provided the required notice (see may be filed at any local office of the Wage and Hour Division; the address Administrator constitutes the final order § 825.300(c)); the employer may delay of the Secretary. restoration until the certification is and telephone number of local offices provided. In this situation, unless the may be found in telephone directories § 825.404 Consequences for an employer employee provides either a fitness-for- or on the Department’s website. when not paying the penalty assessment duty certification or a new medical (b) A complaint filed with the after a final order is issued. certification for a serious health Secretary of Labor should be filed The Regional Administrator may seek condition at the time FMLA leave is within a reasonable time of when the to recover the unpaid penalty pursuant concluded, the employee may be employee discovers that his or her to the Debt Collection Act (DCA), 31 terminated. See also § 825.213(a)(3). FMLA rights have been violated. In no U.S.C. 3711 et seq., and, in addition to event may a complaint be filed more seeking recovery of the unpaid final Subpart D—Enforcement Mechanisms than two years after the action which is order, may seek interest and penalties as alleged to be a violation of FMLA provided under the DCA. The final § 825.400 Enforcement, general rules. occurred, or three years in the case of order may also be referred to the (a) The employee has the choice of: a willful violation. Solicitor of Labor for collection. The

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Secretary may file suit in any court of leave so designated may not include separate files/records from the usual competent jurisdiction to recover the leave required under State law or an personnel files, and if ADA is also monies due as a result of the unpaid employer plan which is not also covered applicable, such records shall be final order, interest, and penalties. by FMLA. maintained in conformance with ADA (3) If FMLA leave is taken by eligible confidentiality requirements (see 29 Subpart E—Recordkeeping employees in increments of less than CFR 1630.14(c)(1)), except that: Requirements one full day, the hours of the leave. (1) Supervisors and managers may be (4) Copies of employee notices of § 825.500 Recordkeeping requirements. informed regarding necessary leave furnished to the employer under restrictions on the work or duties of an (a) FMLA provides that covered FMLA, if in writing, and copies of all employee and necessary employers shall make, keep, and eligibility notices given to employees as accommodations; preserve records pertaining to their required under FMLA and these (2) First aid and safety personnel may obligations under the Act in accordance regulations (see § 825.300(b)). Copies be informed (when appropriate) if the with the recordkeeping requirements of may be maintained in employee employee’s physical or medical section 11(c) of the Fair Labor Standards personnel files. condition might require emergency Act (FLSA) and in accordance with (5) Any documents (including written treatment; and these regulations. FMLA also restricts and electronic records) describing (3) Government officials investigating the authority of the Department of Labor employee benefits or employer policies compliance with FMLA (or other to require any employer or plan, fund or and practices regarding the taking of pertinent law) shall be provided program to submit books or records paid and unpaid leaves. relevant information upon request. more than once during any 12-month (6) Premium payments of employee period unless the Department has benefits. Subpart F—Special Rules Applicable reasonable cause to believe a violation (7) Records of any dispute between to Employees of Schools of the FMLA exists or the DOL is the employer and an eligible employee investigating a complaint. These regarding designation of leave as FMLA § 825.600 Special rules for school employees, definitions. regulations establish no requirement for leave, including any written statement the submission of any records unless from the employer or employee of the (a) Certain special rules apply to specifically requested by a Departmental reasons for the designation and for the employees of ‘‘local educational official. disagreement. agencies,’’ including public school (b) No particular order or form of (d) Covered employers with no boards and elementary and secondary records is required. These regulations eligible employees must maintain the schools under their jurisdiction, and establish no requirement that any records set forth in paragraph (c)(1) of private elementary and secondary employer revise its computerized this section. schools. The special rules do not apply payroll or personnel records systems to (e) Covered employers in a joint to other kinds of educational comply. However, employers must keep employment situation (see § 825.106) institutions, such as colleges and the records specified by these must keep all the records required by universities, trade schools, and regulations for no less than three years paragraph (c) of this section with preschools. and make them available for inspection, respect to any primary employees, and (b) Educational institutions are copying, and transcription by must keep the records required by covered by FMLA (and these special representatives of the Department of paragraph (c)(1) with respect to any rules) and the Act’s 50-employee Labor upon request. The records may be secondary employees. coverage test does not apply. The usual maintained and preserved on microfilm (f) If FMLA-eligible employees are not requirements for employees to be or other basic source document of an subject to FLSA’s recordkeeping ‘‘eligible’’ do apply, however, including automated data processing memory regulations for purposes of minimum employment at a worksite where at least provided that adequate projection or wage or overtime compliance (i.e., not 50 employees are employed within 75 viewing equipment is available, that the covered by or exempt from FLSA), an miles. For example, employees of a rural reproductions are clear and identifiable employer need not keep a record of school would not be eligible for FMLA by date or pay period, and that actual hours worked (as otherwise leave if the school has fewer than 50 extensions or transcriptions of the required under FLSA, 29 CFR employees and there are no other information required herein can be and 516.2(a)(7)), provided that: schools under the jurisdiction of the are made available upon request. (1) Eligibility for FMLA leave is same employer (usually, a school board) Records kept in computer form must be presumed for any employee who has within 75 miles. made available for transcription or been employed for at least 12 months; (c) The special rules affect the taking copying. and of intermittent leave or leave on a (c) Covered employers who have (2) With respect to employees who reduced leave schedule, or leave near eligible employees must maintain take FMLA leave intermittently or on a the end of an academic term (semester), records that must disclose the following: reduced leave schedule, the employer by instructional employees. (1) Basic payroll and identifying and employee agree on the employee’s ‘‘Instructional employees’’ are those employee data, including name, normal schedule or average hours whose principal function is to teach and address, and occupation; rate or basis of worked each week and reduce their instruct students in a class, a small pay and terms of compensation; daily agreement to a written record group, or an individual setting. This and weekly hours worked per pay maintained in accordance with term includes not only teachers, but also period; additions to or deductions from paragraph (b) of this section. athletic coaches, driving instructors, wages; and total compensation paid. (g) Records and documents relating to and special education assistants such as (2) Dates FMLA leave is taken by medical certifications, recertifications or signers for the hearing impaired. It does FMLA eligible employees (e.g., available medical histories of employees or not include, and the special rules do not from time records, requests for leave, employees’ family members, created for apply to, teacher assistants or aides who etc., if so designated). Leave must be purposes of FMLA, shall be maintained do not have as their principal job actual designated in records as FMLA leave; as confidential medical records in teaching or instructing, nor does it

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include auxiliary personnel such as and ending no later than the last day on could require the employee to stay out counselors, psychologists, or curriculum which leave is needed, and may include on leave until the end of the term. specialists. It also does not include one uninterrupted period of leave. cafeteria workers, maintenance workers, (b) If an instructional employee does § 825.603 Special rules for school or bus drivers. not give required notice of foreseeable employees, duration of FMLA leave. (d) Special rules which apply to FMLA leave (see § 825.302) to be taken (a) If an employee chooses to take restoration to an equivalent position intermittently or on a reduced leave leave for ‘‘periods of a particular apply to all employees of local schedule, the employer may require the duration’’ in the case of intermittent or educational agencies. employee to take leave of a particular reduced schedule leave, the entire duration, or to transfer temporarily to an period of leave taken will count as § 825.601 Special rules for school alternative position. Alternatively, the employees, limitations on intermittent FMLA leave. leave. employer may require the employee to delay the taking of leave until the notice (b) In the case of an employee who is (a) Leave taken for a period that ends provision is met. required to take leave until the end of with the school year and begins the next an academic term, only the period of semester is leave taken consecutively § 825.602 Special rules for school leave until the employee is ready and rather than intermittently. The period employees, limitations on leave near the able to return to work shall be charged end of an academic term. during the summer vacation when the against the employee’s FMLA leave employee would not have been required (a) There are also different rules for entitlement. The employer has the to report for duty is not counted against instructional employees who begin option not to require the employee to the employee’s FMLA leave entitlement. leave more than five weeks before the stay on leave until the end of the school An instructional employee who is on end of a term, less than five weeks term. Therefore, any additional leave FMLA leave at the end of the school before the end of a term, and less than year must be provided with any benefits three weeks before the end of a term. required by the employer to the end of over the summer vacation that Regular rules apply except in the school term is not counted as FMLA employees would normally receive if circumstances when: leave; however, the employer shall be they had been working at the end of the (1) An instructional employee begins required to maintain the employee’s school year. leave more than five weeks before the group health insurance and restore the (1) If an eligible instructional end of a term. The employer may employee to the same or equivalent job employee needs intermittent leave or require the employee to continue taking including other benefits at the leave on a reduced leave schedule to leave until the end of the term if— conclusion of the leave. care for a family member, or for the (i) The leave will last at least three employee’s own serious health weeks, and § 825.604 Special rules for school condition, which is foreseeable based on (ii) The employee would return to employees, restoration to ‘‘an equivalent position.’’ planned medical treatment, and the work during the three-week period employee would be on leave for more before the end of the term. The determination of how an than 20 percent of the total number of (2) The employee begins leave for a employee is to be restored to ‘‘an working days over the period the leave purpose other than the employee’s own equivalent position’’ upon return from would extend, the employer may serious health condition during the five- FMLA leave will be made on the basis require the employee to choose either week period before the end of a term. of ‘‘established school board policies to: The employer may require the employee and practices, private school policies (i) Take leave for a period or periods to continue taking leave until the end of and practices, and collective bargaining of a particular duration, not greater than the term if — agreements.’’ The ‘‘established policies’’ the duration of the planned treatment; (i) The leave will last more than two and collective bargaining agreements or weeks, and used as a basis for restoration must be (ii) Transfer temporarily to an (ii) The employee would return to available alternative position for which work during the two-week period before in writing, must be made known to the the employee is qualified, which has the end of the term. employee prior to the taking of FMLA equivalent pay and benefits and which (3) The employee begins leave for a leave, and must clearly explain the better accommodates recurring periods purpose other than the employee’s own employee’s restoration rights upon of leave than does the employee’s serious health condition during the return from leave. Any established regular position. three-week period before the end of a policy which is used as the basis for (2) These rules apply only to a leave term, and the leave will last more than restoration of an employee to ‘‘an involving more than 20 percent of the five working days. The employer may equivalent position’’ must provide working days during the period over require the employee to continue taking substantially the same protections as which the leave extends. For example, leave until the end of the term. provided in the Act for reinstated if an instructional employee who (b) For purposes of these provisions, employees. See § 825.215. In other normally works five days each week ‘‘academic term’’ means the school words, the policy or collective needs to take two days of FMLA leave semester, which typically ends near the bargaining agreement must provide for per week over a period of several weeks, end of the calendar year and the end of restoration to an ‘‘equivalent position’’ the special rules would apply. spring each school year. In no case may with equivalent employment benefits, Employees taking leave which a school have more than two academic pay, and other terms and conditions of constitutes 20 percent or less of the terms or semesters each year for employment. For example, an employee working days during the leave period purposes of FMLA. An example of leave may not be restored to a position would not be subject to transfer to an falling within these provisions would be requiring additional licensure or alternative position. ‘‘Periods of a where an employee plans two weeks of certification. particular duration’’ means a block, or leave to care for a family member which blocks, of time beginning no earlier than will begin three weeks before the end of the first day for which leave is needed the term. In that situation, the employer

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Subpart G—Effect of Other Laws, first 12 weeks of leave entitlement each the [FMLA] are wholly distinct from the Employer Practices, and Collective year. If the employee took 12 weeks the reasonable accommodation obligations Bargaining Agreements on Employee first year, the employee would be of employers covered under the [ADA], Rights Under FMLA entitled to a maximum of 12 weeks the employers who receive Federal financial second year under FMLA (not 16 assistance, employers who contract with § 825.700 Interaction with employer’s weeks). An employee would not be the Federal government, or the Federal policies. entitled to 28 weeks in one year. government itself. The purpose of the (a) An employer must observe any (2) If State law provides half-pay for FMLA is to make leave available to employment benefit program or plan employees temporarily disabled because eligible employees and employers that provides greater family or medical of pregnancy for six weeks, the within its coverage, and not to limit leave rights to employees than the rights employee would be entitled to an already existing rights and protection.’’ established by the FMLA. Conversely, additional six weeks of unpaid FMLA S. Rep. No. 103–3, at 38 (1993). An the rights established by the Act may leave (or accrued paid leave). employer must therefore provide leave not be diminished by any employment (3) A shorter notice period under under whichever statutory provision benefit program or plan. For example, a State law must be allowed by the provides the greater rights to employees. provision of a CBA which provides for employer unless an employer has When an employer violates both FMLA reinstatement to a position that is not already provided, or the employee is and a discrimination law, an employee equivalent because of seniority (e.g., requesting, more leave than required may be able to recover under either or provides lesser pay) is superseded by under State law. both statutes (double relief may not be FMLA. If an employer provides greater (4) If State law provides for only one awarded for the same loss; when unpaid family leave rights than are medical certification, no additional remedies coincide a claimant may be afforded by FMLA, the employer is not certifications may be required by the allowed to utilize whichever avenue of required to extend additional rights employer unless the employer has relief is desired (Laffey v. Northwest afforded by FMLA, such as maintenance already provided, or the employee is Airlines, Inc., 567 F.2d 429, 445 (D.C. of health benefits (other than through requesting, more leave than required Cir. 1976), cert. denied, 434 U.S. 1086 COBRA), to the additional leave period under State law. (1978))). not covered by FMLA. (5) If State law provides six weeks of (b) If an employee is a qualified (b) Nothing in this Act prevents an leave, which may include leave to care individual with a disability within the employer from amending existing leave for a seriously-ill grandparent or a meaning of the Americans with and employee benefit programs, ‘‘spouse equivalent,’’ and leave was Disabilities Act (ADA), the employer provided they comply with FMLA. used for that purpose, the employee is must make reasonable accommodations, However, nothing in the Act is intended still entitled to 12 weeks of FMLA leave, etc., barring undue hardship, in to discourage employers from adopting as the leave used was provided for a accordance with the ADA. At the same or retaining more generous leave purpose not covered by FMLA. If FMLA time, the employer must afford an policies. leave is used first for a purpose also employee his or her FMLA rights. ADA’s ‘‘disability’’ and FMLA’s § 825.701 Interaction with State laws. provided under State law, and State leave has thereby been exhausted, the ‘‘serious health condition’’ are different (a) Nothing in FMLA supersedes any employer would not be required to concepts, and must be analyzed provision of State or local law that provide additional leave to care for the separately. FMLA entitles eligible provides greater family or medical leave grandparent or ‘‘spouse equivalent.’’ employees to 12 weeks of leave in any rights than those provided by FMLA. (6) If State law prohibits mandatory 12-month period, whereas the ADA The Department of Labor will not, leave beyond the actual period of allows an indeterminate amount of however, enforce State family or pregnancy disability, an instructional leave, barring undue hardship, as a medical leave laws, and States may not employee of an educational agency reasonable accommodation. FMLA enforce the FMLA. Employees are not subject to special FMLA rules may not requires employers to maintain required to designate whether the leave be required to remain on leave until the employees’ group health plan coverage they are taking is FMLA leave or leave end of the academic term, as permitted during FMLA leave on the same under State law, and an employer must by FMLA under certain circumstances. conditions as coverage would have been comply with the appropriate (See Subpart F of this part.) provided if the employee had been (applicable) provisions of both. An (b) [Reserved] continuously employed during the leave employer covered by one law and not period, whereas ADA does not require the other has to comply only with the § 825.702 Interaction with Federal and maintenance of health insurance unless law under which it is covered. State anti-discrimination laws. other employees receive health Similarly, an employee eligible under (a) Nothing in FMLA modifies or insurance during leave under the same only one law must receive benefits in affects any Federal or State law circumstances. accordance with that law. If leave prohibiting discrimination on the basis (c)(1) A reasonable accommodation qualifies for FMLA leave and leave of race, religion, color, national origin, under the ADA might be accomplished under State law, the leave used counts sex, age, or disability (e.g., Title VII of by providing an individual with a against the employee’s entitlement the Civil Rights Act of 1964, as amended disability with a part-time job with no under both laws. Examples of the by the Pregnancy Discrimination Act). health benefits, assuming the employer interaction between FMLA and State FMLA’s legislative history explains that did not ordinarily provide health laws include: FMLA is ‘‘not intended to modify or insurance for part-time employees. (1) If State law provides 16 weeks of affect the Rehabilitation Act of 1973, as However, FMLA would permit an leave entitlement over two years, an amended, the regulations concerning employee to work a reduced leave employee would be entitled to take 16 employment which have been schedule until the equivalent of 12 weeks one year under State law and 12 promulgated pursuant to that statute, or workweeks of leave were used, with weeks the next year under FMLA. the Americans with Disabilities Act of group health benefits maintained during Health benefits maintenance under 1990, or the regulations issued under this period. FMLA permits an employer FMLA would be applicable only to the that act. Thus, the leave provisions of to temporarily transfer an employee

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who is taking leave intermittently or on time as a reasonable accommodation, for duty to return to work, as permitted a reduced leave schedule for planned barring undue hardship; the employee by FMLA under a uniform policy, it medical treatment to an alternative would then be entitled to only those must comply with the ADA requirement position, whereas the ADA allows an employment benefits ordinarily that a fitness for duty physical be job- accommodation of reassignment to an provided by the employer to part-time related and consistent with business equivalent, vacant position only if the employees. necessity. employee cannot perform the essential (4) At the end of the FMLA leave (f) Under Title VII of the Civil Rights functions of the employee’s present entitlement, an employer is required Act of 1964, as amended by the position and an accommodation is not under FMLA to reinstate the employee Pregnancy Discrimination Act, an possible in the employee’s present in the same or an equivalent position, employer should provide the same position, or an accommodation in the with equivalent pay and benefits, to that benefits for women who are pregnant as employee’s present position would which the employee held when leave the employer provides to other cause an undue hardship. The examples commenced. The employer’s FMLA employees with short-term disabilities. in the following paragraphs of this obligations would be satisfied if the Because Title VII does not require section demonstrate how the two laws employer offered the employee an employees to be employed for a certain would interact with respect to a equivalent full-time position. If the period of time to be protected, an qualified individual with a disability. employee were unable to perform the employee employed for less than 12 (2) A qualified individual with a essential functions of that equivalent months by the employer (and, therefore, disability who is also an ‘‘eligible position even with reasonable not an ‘‘eligible’’ employee under employee’’ entitled to FMLA leave accommodation, because of a disability, FMLA) may not be denied maternity requests 10 weeks of medical leave as a the ADA may require the employer to leave if the employer normally provides reasonable accommodation, which the make a reasonable accommodation at short-term disability benefits to employer grants because it is not an that time by allowing the employee to employees with the same tenure who undue hardship. The employer advises work part-time or by reassigning the are experiencing other short-term the employee that the 10 weeks of leave employee to a vacant position, barring disabilities. is also being designated as FMLA leave undue hardship. (g) Under the Uniformed Services and will count towards the employee’s (d)(1) If FMLA entitles an employee to Employment and Reemployment Rights FMLA leave entitlement. This leave, an employer may not, in lieu of Act of 1994, 38 U.S.C. 4301–4333 designation does not prevent the parties FMLA leave entitlement, require an (USERRA), veterans are entitled to from also treating the leave as a employee to take a job with a reasonable receive all rights and benefits of reasonable accommodation and accommodation. However, ADA may reinstating the employee into the same require that an employer offer an employment that they would have job, as required by the ADA, rather than employee the opportunity to take such obtained if they had been continuously an equivalent position under FMLA, if a position. An employer may not change employed. Therefore, under USERRA, a that is the greater right available to the the essential functions of the job in returning service member would be employee. At the same time, the order to deny FMLA leave. See eligible for FMLA leave if the months employee would be entitled under § 825.220(b). and hours that he or she would have FMLA to have the employer maintain (2) An employee may be on a workers’ worked for the civilian employer during group health plan coverage during the compensation absence due to an on-the- the period of military service, combined leave, as that requirement provides the job injury or illness which also qualifies with the months employed and the greater right to the employee. as a serious health condition under hours actually worked, meet the FMLA (3) If the same employee needed to FMLA. The workers’ compensation eligibility threshold of 12 months and work part-time (a reduced leave absence and FMLA leave may run 1,250 hours of employment. See schedule) after returning to his or her concurrently (subject to proper notice § 825.110(b)(2)(i) and .110(c)(2). same job, the employee would still be and designation by the employer). At (h) For further information on Federal entitled under FMLA to have group some point the health care provider antidiscrimination laws, including Title health plan coverage maintained for the providing medical care pursuant to the VII and the ADA, individuals are remainder of the two-week equivalent of workers’ compensation injury may encouraged to contact the nearest office FMLA leave entitlement, certify the employee is able to return to of the U.S. Equal Employment notwithstanding an employer policy work in a ‘‘light duty’’ position. If the Opportunity Commission. that part-time employees do not receive employer offers such a position, the health insurance. This employee would employee is permitted but not required Subpart H—Definitions be entitled under the ADA to reasonable to accept the position (see § 825.220(d)). § 825.800 Definitions. accommodations to enable the employee As a result, the employee may no longer to perform the essential functions of the qualify for payments from the workers’ For purposes of this part: part-time position. In addition, because compensation benefit plan, but the Act or FMLA means the Family and the employee is working a part-time employee is entitled to continue on Medical Leave Act of 1993, Public Law schedule as a reasonable unpaid FMLA leave either until the 103–3 (February 5, 1993), 107 Stat. 6 (29 accommodation, the FMLA’s provision employee is able to return to the same U.S.C. 2601 et seq.) for temporary assignment to a different or equivalent job the employee left or ADA means the Americans With alternative position would not apply. until the 12-week FMLA leave Disabilities Act (42 U.S.C. 12101 et seq.) Once the employee has exhausted his or entitlement is exhausted. See Administrator means the her remaining FMLA leave entitlement § 825.207(e). If the employee returning Administrator of the Wage and Hour while working the reduced (part-time) from the workers’ compensation injury Division, Employment Standards schedule, if the employee is a qualified is a qualified individual with a Administration, U.S. Department of individual with a disability, and if the disability, he or she will have rights Labor, and includes any official of the employee is unable to return to the same under the ADA. Wage and Hour Division authorized to full-time position at that time, the (e) If an employer requires perform any of the functions of the employee might continue to work part- certifications of an employee’s fitness Administrator under this part.

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COBRA means the continuation Alzheimer’s, a severe stroke, or the education or for childrearing purposes); coverage requirements of Title X of the terminal stages of a disease. and Consolidated Omnibus Budget (5) Conditions requiring multiple (2) Who, on the date on which any Reconciliation Act of 1986, As treatments. Any period of absence to FMLA leave is to commence, has been Amended (Pub. L. 99–272, title X, receive multiple treatments (including employed for at least 1,250 hours of section 10002; 100 Stat 227; 29 U.S.C. any period of recovery therefrom) by a service with such employer during the 1161–1168). health care provider or by a provider of previous 12-month period; and Commerce and industry or activity health care services under orders of, or (3) Who is employed in any State of affecting commerce mean any activity, on referral by, a health care provider, the United States, the District of business, or industry in commerce or in for: Columbia or any Territories or which a labor dispute would hinder or (i) Restorative surgery after an possession of the United States. obstruct commerce or the free flow of accident or other injury; or (4) Excludes any Federal officer or commerce, and include ‘‘commerce’’ (ii) A condition that would likely employee covered under subchapter V and any ‘‘industry affecting commerce’’ result in a period of incapacity of more of chapter 63 of title 5, United States as defined in sections 501(1) and 501(3) than three consecutive calendar days in Code. of the Labor Management Relations Act the absence of medical intervention or (5) Excludes any employee of the of 1947, 29 U.S.C. 142(1) and (3). treatment, such as cancer United States House of Representatives Continuing treatment by a health care (chemotherapy, radiation, etc.), severe or the United States Senate covered by provider means any one of the arthritis (physical therapy), kidney the Congressional Accountability Act of following: disease (dialysis). 1995, 2 U.S.C. 1301. (1) Incapacity and treatment. A (6) Absences attributable to incapacity (6) Excludes any employee who is period of incapacity of more than three under paragraphs (2) or (3) of this employed at a worksite at which the consecutive calendar days, and any definition qualify for FMLA leave even employer employs fewer than 50 subsequent treatment or period of though the employee or the covered employees if the total number of incapacity relating to the same family member does not receive employees employed by that employer condition, that also involves: treatment from a health care provider within 75 miles of that worksite is also (i) Treatment two or more times, during the absence, and even if the fewer than 50. within a 30-day period unless absence does not last more than three (7) Excludes any employee employed extenuating circumstances exist, by a consecutive calendar days. For example, in any country other than the United health care provider, by a nurse under an employee with asthma may be States or any Territory or possession of direct supervision of a health care unable to report for work due to the the United States. Employ means to suffer or permit to provider, or by a provider of health care onset of an asthma attack or because the work. services (e.g., physical therapist) under employee’s health care provider has Employee has the meaning given the orders of, or on referral by, a health care advised the employee to stay home same term as defined in section 3(e) of provider; or when the pollen count exceeds a certain (ii) Treatment by a health care the Fair Labor Standards Act, 29 U.S.C. level. An employee who is pregnant provider on at least one occasion which 203(e), as follows: may be unable to report to work because results in a regimen of continuing (1) The term ‘‘employee’’ means any of severe morning sickness. treatment under the supervision of the individual employed by an employer; Eligible employee means: health care provider. (2) In the case of an individual (2) Pregnancy or prenatal care. Any (1) An employee who has been employed by a public agency, period of incapacity due to pregnancy, employed for a total of at least 12 ‘‘employee’’ means— or for prenatal care. See also § 825.120. months by the employer on the date on (i) Any individual employed by the (3) Chronic conditions. Any period of which any FMLA leave is to commence, Government of the United States— incapacity or treatment for such except that an employer need not (A) As a civilian in the military incapacity due to a chronic serious consider any period of previous departments (as defined in section 102 health condition. A chronic serious employment that occurred more than of Title 5, United States Code), health condition is one which: five years before the date of the most (B) In any executive agency (as (i) Requires periodic visits (defined as recent hiring of the employee, unless: defined in section 105 of Title 5, United at least twice a year) for treatment by a (i) The break in service is occasioned States Code), excluding any Federal health care provider, or by a nurse by the fulfillment of the employee’s officer or employee covered under under direct supervision of a health care National Guard or Reserve military subchapter V of chapter 63 of Title 5, provider; service obligation (the time served United States Code, (ii) Continues over an extended performing the military service must be (C) In any unit of the legislative or period of time (including recurring also counted in determining whether judicial branch of the Government episodes of a single underlying the employee has been employed for at which has positions in the competitive condition); and least 12 months by the employer, but service, excluding any employee of the (iii) May cause episodic rather than a this section does not provide any greater United States House of Representatives continuing period of incapacity (e.g., entitlement to the employee than would or the United States Senate who is asthma, diabetes, epilepsy, etc.). be available under the Uniformed covered by the Congressional (4) Permanent or long-term Services Employment and Accountability Act of 1995, conditions. A period of incapacity Reemployment Rights Act (USERRA)); (D) In a nonappropriated fund which is permanent or long-term due to or instrumentality under the jurisdiction of a condition for which treatment may not (ii) A written agreement, including a the Armed Forces, or be effective. The employee or family collective bargaining agreement, exists (ii) Any individual employed by the member must be under the continuing concerning the employer’s intention to United States Postal Service or the supervision of, but need not be rehire the employee after the break in Postal Regulatory Commission; and receiving active treatment by, a health service (e.g., for purposes of the (iii) Any individual employed by a care provider. Examples include employee furthering his or her State, political subdivision of a State, or

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an interstate governmental agency, other such employees or former employees. practitioner except as otherwise than such an individual— For purposes of FMLA the term ‘‘group provided under applicable State or local (A) Who is not subject to the civil health plan’’ shall not include an law or collective bargaining agreement. service laws of the State, political insurance program providing health (iv) Any health care provider from subdivision, or agency which employs coverage under which employees whom an employer or the employer’s the employee; and purchase individual policies from group health plan’s benefits manager (B) Who— insurers provided that: will accept certification of the existence (1) Holds a public elective office of (1) No contributions are made by the of a serious health condition to that State, political subdivision, or employer; substantiate a claim for benefits; and agency, (2) Participation in the program is (v) A health care provider listed above (2) Is selected by the holder of such completely voluntary for employees; who practices in a country other than an office to be a member of his personal (3) The sole functions of the employer the United States, who is authorized to staff, with respect to the program are, without practice in accordance with the law of (3) Is appointed by such an endorsing the program, to permit the that country, and who is performing officeholder to serve on a policymaking insurer to publicize the program to within the scope of his or her practice level, employees, to collect premiums through as defined under such law. (4) Is an immediate adviser to such an payroll deductions and to remit them to (3) The phrase ‘‘authorized to practice officeholder with respect to the the insurer; in the State’’ as used in this section constitutional or legal powers of the (4) The employer receives no means that the provider must be office of such officeholder, or consideration in the form of cash or authorized to diagnose and treat (5) Is an employee in the legislative otherwise in connection with the physical or mental health conditions. branch or legislative body of that State, program, other than reasonable Incapable of self-care means that the political subdivision, or agency and is compensation, excluding any profit, for individual requires active assistance or not employed by the legislative library administrative services actually supervision to provide daily self-care in of such State, political subdivision, or rendered in connection with payroll several of the ‘‘activities of daily living’’ agency. deduction; and, (ADLs) or ‘‘instrumental activities of Employee employed in an (5) The premium charged with respect daily living’’ (IADLs). Activities of daily instructional capacity. See the to such coverage does not increase in living include adaptive activities such definition of Teacher in this section. the event the employment relationship as caring appropriately for one’s Employer means any person engaged terminates. grooming and hygiene, bathing, dressing in commerce or in an industry or Health care provider means: and eating. Instrumental activities of activity affecting commerce who (1) The Act defines ‘‘health care daily living include cooking, cleaning, employs 50 or more employees for each provider’’ as: shopping, taking public transportation, working day during each of 20 or more (i) A doctor of medicine or osteopathy paying bills, maintaining a residence, calendar workweeks in the current or who is authorized to practice medicine using telephones and directories, using preceding calendar year, and includes— or surgery (as appropriate) by the State a post office, etc. (1) Any person who acts, directly or in which the doctor practices; or Instructional employee: See the indirectly, in the interest of an employer (ii) Any other person determined by definition of Teacher in this section. to any of the employees of such the Secretary to be capable of providing Intermittent leave means leave taken employer; health care services. in separate periods of time due to a (2) Any successor in interest of an (2) Others ‘‘capable of providing single illness or injury, rather than for employer; and health care services’’ include only: one continuous period of time, and may (3) Any public agency. (i) Podiatrists, dentists, clinical include leave of periods from an hour or Employment benefits means all psychologists, optometrists, and more to several weeks. Examples of benefits provided or made available to chiropractors (limited to treatment intermittent leave would include leave employees by an employer, including consisting of manual manipulation of taken on an occasional basis for medical group life insurance, health insurance, the spine to correct a subluxation as appointments, or leave taken several disability insurance, sick leave, annual demonstrated by X-ray to exist) days at a time spread over a period of leave, educational benefits, and authorized to practice in the State and six months, such as for chemotherapy. pensions, regardless of whether such performing within the scope of their Mental disability: See the definition of benefits are provided by a practice or practice as defined under State law; Physical or mental disability in this written policy of an employer or (ii) Nurse practitioners, nurse- section. through an ‘‘employee benefit plan’’ as midwives, clinical social workers and Parent means a biological, adoptive, defined in section 3(3) of the Employee physician assistants who are authorized step or foster father or mother, or any Retirement Income Security Act of 1974, to practice under State law and who are other individual who stood in loco 29 U.S.C. 1002(3). The term does not performing within the scope of their parentis to the employee when the include non-employment related practice as defined under State law; employee was a son or daughter as obligations paid by employees through (iii) Christian Science Practitioners defined below. This term does not voluntary deductions such as listed with the First Church of Christ, include parents ‘‘in law.’’ supplemental insurance coverage. (See Scientist in Boston, Massachusetts. Person means an individual, § 825.209(a)). Where an employee or family member is partnership, association, corporation, FLSA means the Fair Labor Standards receiving treatment from a Christian business trust, legal representative, or Act (29 U.S.C. 201 et seq.). Science practitioner, an employee may any organized group of persons, and Group health plan means any plan of, not object to any requirement from an includes a public agency for purposes of or contributed to by, an employer employer that the employee or family this part. (including a self-insured plan) to member submit to examination (though Physical or mental disability means a provide health care (directly or not treatment) to obtain a second or physical or mental impairment that otherwise) to the employer’s employees, third certification from a health care substantially limits one or more of the former employees, or the families of provider other than a Christian Science major life activities of an individual.

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Regulations at 29 CFR part 1630.2(h), (i), continuing treatment by a health care common law marriage in States where it and (j), issued by the Equal Employment provider as defined in § 825.115. is recognized. Opportunity Commission under the Conditions for which cosmetic State means any State of the United Americans with Disabilities Act (ADA), treatments are administered (such as States or the District of Columbia or any 42 U.S.C. 12101 et seq., define these most treatments for acne or plastic Territory or possession of the United terms. surgery) are not ‘‘serious health States. Public agency means the government conditions’’ unless inpatient hospital Teacher (or employee employed in an of the United States; the government of care is required or unless complications instructional capacity, or instructional a State or political subdivision thereof; develop. Restorative dental or plastic employee) means an employee any agency of the United States surgery after an injury or removal of employed principally in an (including the United States Postal cancerous growths are serious health instructional capacity by an educational Service and Postal Regulatory conditions provided all the other agency or school whose principal Commission), a State, or a political conditions of this regulation are met. function is to teach and instruct subdivision of a State, or any interstate Mental illness resulting from stress, or students in a class, a small group, or an governmental agency. Under section allergies may be serious health individual setting, and includes athletic 101(5)(B) of the Act, a public agency is conditions, but only if all the conditions coaches, driving instructors, and special considered to be a ‘‘person’’ engaged in of § 825.113 are met. education assistants such as signers for commerce or in an industry or activity the hearing impaired. The term does not Son or daughter means a biological, affecting commerce within the meaning include teacher assistants or aides who adopted, or foster child, a stepchild, a of the Act. do not have as their principal function legal ward, or a child of a person Reduced leave schedule means a actual teaching or instructing, nor standing in loco parentis, who is either leave schedule that reduces the usual auxiliary personnel such as counselors, under age 18, or age 18 or older and number of hours per workweek, or psychologists, curriculum specialists, ‘‘incapable of self-care because of a hours per workday, of an employee. cafeteria workers, maintenance workers, mental or physical disability’’ at the Secretary means the Secretary of bus drivers, or other primarily Labor or authorized representative. time that FMLA leave is to commence. noninstructional employees. Serious health condition means an Spouse means a husband or wife as illness, injury, impairment or physical defined or recognized under State law Appendix A to Part 825—Index or mental condition that involves for purposes of marriage in the State [Reserved] inpatient care as defined in § 825.114 or where the employee resides, including BILLING CODE 4510–27–P

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[FR Doc. E8–2062 Filed 2–8–08; 8:45 am] BILLING CODE 4510–27–C

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Reader Aids Federal Register Vol. 73, No. 28 Monday, February 11, 2008

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING FEBRUARY

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. 39 ...... 6008, 6419, 6578, 6582, Presidential Documents 3 CFR 6584, 6586, 6590, 6592, Executive orders and proclamations 741–6000 Proclamations: 6594, 6596, 6598, 6601, The United States Government Manual 741–6000 6867 (See Notice of 6838, 7657, 7659, 7661, February 6, 2008) ...... 7459 Other Services 7663, 7666 7757 (See Notice of 61...... 7034 741–6020 Electronic and on-line services (voice) February 6, 2008) ...... 7459 71 ...... 6424, 6425, 7667, 7668 Privacy Act Compilation 741–6064 8220...... 6831 91...... 7034 Public Laws Update Service (numbers, dates, etc.) 741–6043 Executive Orders: 97...... 6841, 7461 TTY for the deaf-and-hard-of-hearing 741–6086 13396 (See Notice of 135...... 7034 February 5, 2008) ...... 7185 Proposed Rules: 13457...... 6415 ELECTRONIC RESEARCH 39 ...... 6618, 6620, 6622, 6627, 13458...... 7181 6629, 6631, 6634, 6636, World Wide Web Administrative Orders: 6638, 6640, 7484, 7486, Full text of the daily Federal Register, CFR and other publications Notices: 7488, 7489, 7492, 7494, is located at: http://www.gpoaccess.gov/nara/index.html Notice of February 6, 7690 2008 ...... 7459 71 ...... 6056, 6057, 6058, 6060, Federal Register information and research tools, including Public Presidential 7228 Inspection List, indexes, and links to GPO Access are located at: Determinations: http://www.archives.gov/federallregister No. 2008-8 of January 15 CFR E-mail 22, 2008 ...... 6567 742...... 6603 No. 2008-9 of January 744...... 6603 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 28, 2008 ...... 6571 748...... 6603 an open e-mail service that provides subscribers with a digital No. 2008-10 of 774...... 6603 form of the Federal Register Table of Contents. The digital form January 29, 2008 ...... 6569 of the Federal Register Table of Contents includes HTML and 16 CFR PDF links to the full text of each document. 5 CFR 1633...... 6842 To join or leave, go to http://listserv.access.gpo.gov and select 315...... 7187 Online mailing list archives, FEDREGTOC-L, Join or leave the list 550...... 7188 17 CFR (or change settings); then follow the instructions. 752...... 7187 200...... 7205 PENS (Public Law Electronic Notification Service) is an e-mail 892...... 7188 202...... 6011 service that notifies subscribers of recently enacted laws. 1201...... 6833 230...... 6011 1207...... 6833 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 240...... 6011 Proposed Rules: 260...... 6011 and select Join or leave the list (or change settings); then follow 300...... 6857 the instructions. 270...... 6011 7 CFR Proposed Rules: FEDREGTOC-L and PENS are mailing lists only. We cannot 210...... 7450 respond to specific inquiries. 246...... 6577 228...... 7450 Reference questions. Send questions and comments about the 301...... 6577 229...... 7450 Federal Register system to: [email protected] 319...... 7189 249...... 7450 457...... 7190 The Federal Register staff cannot interpret specific documents or 915...... 6834 18 CFR regulations. 932...... 7199 40...... 7368 Proposed Rules: FEDERAL REGISTER PAGES AND DATE, FEBRUARY 301...... 7679 19 CFR 1260...... 7226 6007–6418...... 1 Proposed Rules: 6419–6570...... 4 9 CFR 4...... 6061 12...... 6061 6571–6832...... 5 78...... 6007 18...... 6061 6833–7186...... 6 Proposed Rules: 101...... 6061 7187–7460...... 7 201...... 7482, 7686 103...... 6061 7461–7656...... 8 113...... 6061 7657–8002...... 11 10 CFR 122...... 6061 Proposed Rules: 123...... 6061 50...... 7690 141...... 6061 143...... 6061 12 CFR 149...... 6061 201...... 7202 192...... 6061 630...... 7461 21 CFR 14 CFR 347...... 6014 25...... 7203 520...... 6607

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522...... 6017 825...... 7876 63...... 7210 263...... 6772 558...... 6018 70...... 7468 265...... 6772 606...... 7463 30 CFR 97...... 6034 607...... 7463 49...... 7636 180...... 6851, 7472 46 CFR 610...... 7463 75...... 7636 300...... 6613 640...... 7463 100...... 7206 Proposed Rules: Proposed Rules: 1312...... 6843 Proposed Rules: 52 ...... 6451, 6657, 7234, 7504 401...... 6085 Proposed Rules: 256...... 6073 70...... 7504 133...... 7692 81...... 6863 47 CFR 880...... 7498 33 CFR 180...... 6867 64...... 6041, 6444 110...... 6607 300...... 6659 22 CFR 73...... 7671 165...... 6610 76...... 6043 42...... 7670 Proposed Rules: 41 CFR Proposed Rules: 100...... 6859 102-42...... 7475 24 CFR 1...... 6879, 6888 138...... 6642 73...... 7694 Proposed Rules: 165 ...... 6861, 7229, 7231 42 CFR 5...... 7170 76...... 6099 Proposed Rules: 36 CFR 25 CFR 400...... 6451 49 CFR 502...... 6019 1253...... 6030 405...... 6451 522...... 6019 Proposed Rules: 410...... 6451 223...... 6370 559...... 6019 1190...... 6080 412...... 6451 238...... 6370 573...... 6019 1191...... 6080 413...... 6451 414...... 6451 26 CFR 38 CFR 488...... 6451 50 CFR 1...... 7464 36...... 6294 494...... 6451 223...... 7616 226...... 7616 Proposed Rules: 39 CFR 43 CFR 1...... 7503 229...... 7674 20...... 6031 3130...... 6430 622...... 7223, 7676 28 CFR 111...... 6032, 6033 635...... 7479 44 CFR Proposed Rules: 3020...... 6426 679 ...... 6055, 7224, 7480 58...... 6062, 6447 Proposed Rules: 65...... 7476 Proposed Rules: 3001...... 6081 17 ...... 6660, 6684, 7236, 7237 29 CFR 45 CFR 223...... 6895 Proposed Rules: 40 CFR 261...... 6772 226...... 6895 29...... 7693 52 ...... 6034, 6427, 7465, 7468 262...... 6772 665...... 6101

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REMINDERS 611-8C, Tay 620-15, Tay Request for Redesignation HEALTH AND HUMAN The items in this list were 650-15, and Tay 651-54 to Attainment; comments SERVICES DEPARTMENT editorially compiled as an aid Turbofan Engines; due by 2-19-08; published Centers for Medicare & to Federal Register users. published 1-7-08 1-18-08 [FR E8-00803] Medicaid Services Inclusion or exclusion from Approval and Promulgation of Medicaid Program: this list has no legal COMMENTS DUE NEXT Air Quality Implementation Self-Directed Personnel significance. WEEK Plans: Assistance Services California; Revisions; Program State Plan comments due by 2-19- AGRICULTURE Option (Cash and RULES GOING INTO 08; published 1-17-08 [FR DEPARTMENT Counseling); comments EFFECT FEBRUARY 11, E8-00192] due by 2-19-08; published Forest Service 2008 Approval and Promulgation of 1-18-08 [FR 08-00115] Environmental Impact Air Quality Implementation Medicare: Statement: Plans: ENVIRONMENTAL Revisit User Fee Program; PROTECTION AGENCY Hiawatha National Forest, California; Revisions; MI; Niagara; comments Medicare Survey and Acquisition Regulation: comments due by 2-19- certification activities; due by 2-17-08; published 08; published 1-17-08 [FR Use of Award Term 1-30-08 [FR E8-01607] comments due by 2-19- Incentives; Amendments; E8-00161] 08; published 12-18-07 DEFENSE DEPARTMENT published 1-11-08 Maryland; Revisions to [FR 07-06093] Civilian health and medical Air quality implementation Stage II Requirements; HEALTH AND HUMAN program of the uniformed plans; approval and comments due by 2-19- SERVICES DEPARTMENT services (CHAMPUS): promulgation; various 08; published 1-17-08 [FR E8-00577] Food and Drug States: TRICARE program— Administration Nevada; Washoe County 8- Illinois; published 12-13-07 Overpayment recovery; Human drugs: comments due by 2-19- Hour Ozone Maintenance Hazardous waste program 08; published 12-20-07 Plan; comments due by Current good manufacturing authorizations: [FR E7-24707] 2-19-08; published 1-18- practices— Rhode Island; published 12- Federal Acquisition Regulation 08 [FR E8-00746] Finished pharmaceuticals; 11-07 (FAR): Pennsylvania; Revisions to comments due by 2-19- 08; published 12-4-07 HOMELAND SECURITY Travel costs; allowable Stage II Requirements in [FR E7-23294] DEPARTMENT contractor airfare costs Allegheny County; U.S. Customs and Border limitation application; comments due by 2-19- Finished pharmaceuticals; Protection comments due by 2-19- 08; published 1-17-08 [FR comments due by 2-19- Automated Commercial 08; published 12-20-07 E8-00595] 08; published 12-4-07 Environment Truck Manifest [FR E7-24730] Environmental Statements; [FR E7-23292] System: Freedom of Information Act; Notice of Intent: HEALTH AND HUMAN Advance electronic truck implementation; comments Coastal Nonpoint Pollution SERVICES DEPARTMENT cargo information; ports of due by 2-19-08; published Control Programs; States Inspector General Office, entry— 12-19-07 [FR E7-24359] and Territories— Health and Human Services Alaska; published 11-13- ENERGY DEPARTMENT Florida and South Department Carolina; Open for 07 Federal Energy Regulatory Medicare and State health comments until further SOCIAL SECURITY Commission care programs; fraud and notice; published 2-11- ADMINISTRATION abuse: Pipeline Posting Requirements 08 [FR 08-00596] Methods for Conducting under Section 23 of the New safe harbors and Final 8-hour Ozone National Personal Conferences When Natural Gas Act; comments special fraud alerts; Ambient Air Quality Waiver of Recovery Title II due by 2-21-08; published solicitations; comments Standards: or XVI Overpayment Cannot 1-7-08 [FR E7-25435] due by 2-19-08; published Designations for Early 12-19-07 [FR E7-24579] Be Approved; published 1- ENVIRONMENTAL 11-08 Action Compact Areas; INTERIOR DEPARTMENT PROTECTION AGENCY comments due by 2-21- Fish and Wildlife Service STATE DEPARTMENT Approval and Promulgation 08; published 2-6-08 [FR Visas: Documentation of of Air Quality E8-02187] Migratory bird permits: immigrants under the Implementation Plans; Pesticides; tolerances in food, Import and export Immigration and Nationality Designation of Areas for animal feeds, and raw regulations; revisions; Act, as Amended; published Air Quality Planning agricultural commodities: comments due by 2-19- 2-11-08 Purposes: 08; published 11-19-07 Bifenazate, etc.; comments Arizona; San Manuel [FR E7-22182] TRANSPORTATION due by 2-19-08; published Sulfur Dioxide State DEPARTMENT 12-19-07 [FR E7-24345] INTERIOR DEPARTMENT Implementation Plan Federal Aviation Minerals Management and Request for Glufosinate-ammonium; Administration Service Redesignation to comments due by 2-19- Airworthiness directives: Attainment; comments 08; published 12-21-07 Outer Continental Shelf; oil, BAE Systems (Operations) due by 2-19-08; [FR E7-24841] gas, and sulphur operations: Limited Model BAE 146 published 1-18-08 [FR GENERAL SERVICES Plans, applications, and and Avro 146-RJ E8-00804] ADMINISTRATION permits; processing fees; Airplanes; published 1-7- Approval and Promulgation of Federal Acquisition Regulation electronic payment; 08 Air Quality Implementation (FAR): comments due by 2-19- 08; published 12-21-07 Boeing Model 747 Plans; Designation of Areas Travel costs; allowable [FR 07-06173] Airplanes; published 1-7- for Air Quality Planning contractor airfare costs 08 Purposes: limitation application; Royalty management: Airworthiness directives: Arizona; San Manuel Sulfur comments due by 2-19- Deepwater Outer Rolls-Royce Deutschland Ltd Dioxide State 08; published 12-20-07 Continental Shelf oil and & Co KG Tay 611-8, Tay Implementation Plan and [FR E7-24730] gas leases; royalty relief;

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regulations conformed to PERSONNEL MANAGEMENT 08; published 1-23-08 [FR court decision; comments OFFICE E8-01023] due by 2-19-08; published Prevailing Rate Systems: Eurocopter France Model LIST OF PUBLIC LAWS 12-21-07 [FR 07-06161] North American Industry AS 355 N Helicopters; INTERIOR DEPARTMENT Classification System comments due by 2-22- This is a continuing list of Surface Mining Reclamation Based Federal Wage 08; published 1-23-08 [FR public bills from the current and Enforcement Office System Wage Area; E8-01027] session of Congress which Kansas Regulatory Program; comments due by 2-19- General Electric Company have become Federal laws. It comments due by 2-22-08; 08; published 1-17-08 [FR CF6-45 and CF6-50 may be used in conjunction published 1-23-08 [FR E8- E8-00657] Series Turbofan Engines; with ‘‘PLUS’’ (Public Laws 01113] POSTAL SERVICE comments due by 2-19- Update Service) on 202–741– 08; published 1-2-08 [FR 6043. This list is also INTERNATIONAL TRADE Implementation of Intelligent E7-25458] available online at http:// COMMISSION Mail Barcodes; comments Pacific Aerospace Limited www.archives.gov/federal- due by 2-21-08; published Practice and procedure: Model 750XL Airplanes; register/laws.html. 1-7-08 [FR E7-25635] General application, comments due by 2-19- adjudication, and SECURITIES AND 08; published 1-18-08 [FR The text of laws is not enforcement rules; EXCHANGE COMMISSION E8-00827] published in the Federal technical corrections, Securities: Various Transport Category Register but may be ordered clarification, etc.; Oil and gas reserves; Airplanes Equipped with in ‘‘slip law’’ (individual comments due by 2-19- disclosure requirements Auxiliary Fuel Tanks pamphlet) form from the 08; published 12-20-07 revisions; concept release; Installed in Accordance Superintendent of Documents, [FR E7-24591] comments due by 2-19- with Certain Supplemental U.S. Government Printing LABOR DEPARTMENT 08; published 12-18-07 Type Certificates; Office, Washington, DC 20402 Employee Benefits Security [FR E7-24384] comments due by 2-19- (phone, 202–512–1808). The text will also be made Administration SOCIAL SECURITY 08; published 1-2-08 [FR available on the Internet from Employee Retirement Income ADMINISTRATION E7-25482] Security Act: Proposed Airworthiness GPO Access at http:// Supplemental security income: www.gpoaccess.gov/plaws/ Civil penalties assessment Design Standards for Aged, blind, and disabled— index.html. Some laws may procedures; comments Acceptance Under the Parent-to-child deeming not yet be available. due by 2-19-08; published Primary Category Rule: from stepparents; 12-19-07 [FR E7-24386] Cubcrafters, Inc., Model comments due by 2-19- PC18-160; comments due S. 2110/P.L. 110–184 LIBRARY OF CONGRESS 08; published 12-21-07 by 2-21-08; published 1- To designate the facility of the Copyright Office, Library of [FR E7-24787] 22-08 [FR E8-00852] Congress United States Postal Service TRANSPORTATION Special Conditions: located at 427 North Street in Recordation of Notices of DEPARTMENT Embraer S.A., Model EMB- Taft, California, as the ‘‘Larry Termination of Transfers Federal Aviation 500; High Fuel S. Pierce Post Office’’. (Feb. and Licenses: Administration Temperature; comments 6, 2008; 122 Stat. 612) Clarifications; comments due due by 2-22-08; published Airworthiness directives: Last List February 7, 2008 by 2-22-08; published 1- 1-23-08 [FR E8-01075] 23-08 [FR E8-00888] Airbus Model A310 and A300-600 Series Embraer S.A.; Model EMB- NATIONAL AERONAUTICS Airplanes; comments due 500; Brakes-Designation AND SPACE by 2-21-08; published 1- of Applicable Regulations; Public Laws Electronic ADMINISTRATION 22-08 [FR E8-00977] comments due by 2-22- Notification Service Federal Acquisition Regulation Bell Helicopter Textron 08; published 1-23-08 [FR (PENS) (FAR): Canada (BHTC) Models E8-01077] Travel costs; allowable 206A, 206B, 206L, 206L- Embraer S.A.; Model EMB- contractor airfare costs 500; Static Pressure 1, 206L-3, and 206L-4 PENS is a free electronic mail limitation application; Helicopters; comments System; comments due comments due by 2-19- by 2-22-08; published 1- notification service of newly due by 2-22-08; published enacted public laws. To 08; published 12-20-07 1-23-08 [FR E8-01025] 23-08 [FR E8-01076] [FR E7-24730] subscribe, go to http:// British Aerospace Regional TRANSPORTATION listserv.gsa.gov/archives/ NATIONAL ARCHIVES AND Aircraft Model HP.137 DEPARTMENT publaws-l.html RECORDS ADMINISTRATION Jetstream Mk.1 et al.; National Highway Traffic Organization, functions, and comments due by 2-19- Safety Administration Note: This service is strictly authority delegations: 08; published 1-18-08 [FR Motor vehicle safety for E-mail notification of new Presidential library facilities; E8-00824] standards: laws. The text of laws is not architectural and design Eurocopter Deutschland Platform lifts and platform available through this service. standards; comments due GMBH Model MBB-BK lift installations; comments PENS cannot respond to by 2-19-08; published 12- 117C-2 Helicopters; due by 2-19-08; published specific inquiries sent to this 20-07 [FR E7-24746] comments due by 2-22- 12-20-07 [FR 07-06146] address.

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CFR CHECKLIST Title Stock Number Price Revision Date 900–End ...... (869–062–00038–3) ...... 50.00 Jan. 1, 2007 This checklist, prepared by the Office of the Federal Register, is 13 ...... (869–062–00039–1) ...... 55.00 Jan. 1, 2007 published weekly. It is arranged in the order of CFR titles, stock 14 Parts: numbers, prices, and revision dates. 1–59 ...... (869–062–00040–5) ...... 63.00 Jan. 1, 2007 An asterisk (*) precedes each entry that has been issued since last 60–139 ...... (869–062–00041–3) ...... 61.00 Jan. 1, 2007 week and which is now available for sale at the Government Printing 140–199 ...... (869–062–00042–1) ...... 30.00 Jan. 1, 2007 Office. 200–1199 ...... (869–062–00043–0) ...... 50.00 Jan. 1, 2007 A checklist of current CFR volumes comprising a complete CFR set, 1200–End ...... (869–062–00044–8) ...... 45.00 Jan. 1, 2007 also appears in the latest issue of the LSA (List of CFR Sections 15 Parts: Affected), which is revised monthly. 0–299 ...... (869–062–00045–6) ...... 40.00 Jan. 1, 2007 The CFR is available free on-line through the Government Printing 300–799 ...... (869–062–00046–4) ...... 60.00 Jan. 1, 2007 Office’s GPO Access Service at http://www.gpoaccess.gov/cfr/ 800–End ...... (869–062–00047–2) ...... 42.00 Jan. 1, 2007 index.html. For information about GPO Access call the GPO User 16 Parts: Support Team at 1-888-293-6498 (toll free) or 202-512-1530. 0–999 ...... (869–062–00048–1) ...... 50.00 Jan. 1, 2007 The annual rate for subscription to all revised paper volumes is 1000–End ...... (869–062–00049–9) ...... 60.00 Jan. 1, 2007 $1499.00 domestic, $599.60 additional for foreign mailing. 17 Parts: Mail orders to the Superintendent of Documents, Attn: New Orders, 1–199 ...... (869–062–00051–1) ...... 50.00 Apr. 1, 2007 P.O. Box 371954, Pittsburgh, PA 15250–7954. All orders must be 200–239 ...... (869–062–00052–9) ...... 60.00 Apr. 1, 2007 accompanied by remittance (check, money order, GPO Deposit 240–End ...... (869–062–00053–7) ...... 62.00 Apr. 1, 2007 Account, VISA, Master Card, or Discover). Charge orders may be telephoned to the GPO Order Desk, Monday through Friday, at (202) 18 Parts: 512–1800 from 8:00 a.m. to 4:00 p.m. eastern time, or FAX your 1–399 ...... (869–062–00054–5) ...... 62.00 Apr. 1, 2007 charge orders to (202) 512-2250. 400–End ...... (869–062–00055–3) ...... 26.00 Apr. 1, 2007 Title Stock Number Price Revision Date 19 Parts: 1–140 ...... (869–062–00056–1) ...... 61.00 Apr. 1, 2007 1 ...... (869–062–00001–4) ...... 5.00 4 Jan. 1, 2007 141–199 ...... (869–062–00057–0) ...... 58.00 Apr. 1, 2007 2 ...... (869–062–00002–2) ...... 5.00 Jan. 1, 2007 200–End ...... (869–062–00058–8) ...... 31.00 Apr. 1, 2007 3 (2006 Compilation 20 Parts: and Parts 100 and 1–399 ...... (869–062–00059–6) ...... 50.00 Apr. 1, 2007 102) ...... (869–062–00003–1) ...... 35.00 1 Jan. 1, 2007 400–499 ...... (869–062–00060–0) ...... 64.00 Apr. 1, 2007 4 ...... (869–062–00004–9) ...... 10.00 5 Jan. 1, 2007 500–End ...... (869–062–00061–8) ...... 63.00 Apr. 1, 2007 5 Parts: 21 Parts: 1–699 ...... (869–062–00005–7) ...... 60.00 Jan. 1, 2007 1–99 ...... (869–062–00062–6) ...... 40.00 Apr. 1, 2007 700–1199 ...... (869–062–00006–5) ...... 50.00 Jan. 1, 2007 100–169 ...... (869–062–00063–4) ...... 49.00 Apr. 1, 2007 1200–End ...... (869–062–00007–3) ...... 61.00 Jan. 1, 2007 170–199 ...... (869–062–00064–2) ...... 50.00 Apr. 1, 2007 200–299 ...... (869–062–00065–1) ...... 17.00 Apr. 1, 2007 6 ...... (869–062–00008–1) ...... 10.50 Jan. 1, 2007 300–499 ...... (869–062–00066–9) ...... 30.00 Apr. 1, 2007 7 Parts: 500–599 ...... (869–062–00067–7) ...... 47.00 Apr. 1, 2007 1–26 ...... (869–062–00009–0) ...... 44.00 Jan. 1, 2007 600–799 ...... (869–062–00068–5) ...... 17.00 Apr. 1, 2007 27–52 ...... (869–062–00010–3) ...... 49.00 Jan. 1, 2007 800–1299 ...... (869–062–00069–3) ...... 60.00 Apr. 1, 2007 53–209 ...... (869–062–00011–1) ...... 37.00 Jan. 1, 2007 1300–End ...... (869–062–00070–7) ...... 25.00 Apr. 1, 2007 210–299 ...... (869–062–00012–0) ...... 62.00 Jan. 1, 2007 22 Parts: 300–399 ...... (869–062–00013–8) ...... 46.00 Jan. 1, 2007 1–299 ...... (869–062–00071–5) ...... 63.00 Apr. 1, 2007 400–699 ...... (869–062–00014–6) ...... 42.00 Jan. 1, 2007 300–End ...... (869–062–00072–3) ...... 45.00 Apr. 1, 2007 700–899 ...... (869–062–00015–4) ...... 43.00 Jan. 1, 2007 900–999 ...... (869–062–00016–2) ...... 60.00 Jan. 1, 2007 23 ...... (869–062–00073–7) ...... 45.00 Apr. 1, 2007 1000–1199 ...... (869–062–00017–1) ...... 22.00 Jan. 1, 2007 24 Parts: 1200–1599 ...... (869–062–00018–9) ...... 61.00 Jan. 1, 2007 0–199 ...... (869–062–00074–0) ...... 60.00 Apr. 1, 2007 1600–1899 ...... (869–062–00019–7) ...... 64.00 Jan. 1, 2007 200–499 ...... (869–062–00075–8) ...... 50.00 Apr. 1, 2007 1900–1939 ...... (869–062–00020–1) ...... 31.00 Jan. 1, 2007 500–699 ...... (869–062–00076–6) ...... 30.00 Apr. 1, 2007 1940–1949 ...... (869–062–00021–9) ...... 50.00 5 Jan. 1, 2007 700–1699 ...... (869–062–00077–4) ...... 61.00 Apr. 1, 2007 1950–1999 ...... (869–062–00022–7) ...... 46.00 Jan. 1, 2007 1700–End ...... (869–062–00078–2) ...... 30.00 Apr. 1, 2007 2000–End ...... (869–062–00023–5) ...... 50.00 Jan. 1, 2007 25 ...... (869–062–00079–1) ...... 64.00 Apr. 1, 2007 8 ...... (869–062–00024–3) ...... 63.00 Jan. 1, 2007 26 Parts: 9 Parts: §§ 1.0–1–1.60 ...... (869–062–00080–4) ...... 49.00 Apr. 1, 2007 1–199 ...... (869–062–00025–1) ...... 61.00 Jan. 1, 2007 §§ 1.61–1.169 ...... (869–062–00081–2) ...... 63.00 Apr. 1, 2007 200–End ...... (869–062–00026–0) ...... 58.00 Jan. 1, 2007 §§ 1.170–1.300 ...... (869–062–00082–1) ...... 60.00 Apr. 1, 2007 10 Parts: §§ 1.301–1.400 ...... (869–062–00083–9) ...... 47.00 Apr. 1, 2007 1–50 ...... (869–062–00027–8) ...... 61.00 Jan. 1, 2007 §§ 1.401–1.440 ...... (869–062–00084–7) ...... 56.00 Apr. 1, 2007 51–199 ...... (869–062–00028–6) ...... 58.00 Jan. 1, 2007 §§ 1.441–1.500 ...... (869–062–00085–5) ...... 58.00 Apr. 1, 2007 200–499 ...... (869–062–00029–4) ...... 46.00 Jan. 1, 2007 §§ 1.501–1.640 ...... (869–062–00086–3) ...... 49.00 Apr. 1, 2007 500–End ...... (869–066–00030–8) ...... 62.00 Jan. 1, 2007 §§ 1.641–1.850 ...... (869–062–00087–1) ...... 61.00 Apr. 1, 2007 §§ 1.851–1.907 ...... (869–062–00088–0) ...... 61.00 Apr. 1, 2007 11 ...... (869–062–00031–6) 41.00 Jan. 1, 2007 §§ 1.908–1.1000 ...... (869–062–00089–8) ...... 60.00 Apr. 1, 2007 12 Parts: §§ 1.1001–1.1400 ...... (869–062–00090–1) ...... 61.00 Apr. 1, 2007 1–199 ...... (869–062–00032–4) ...... 34.00 Jan. 1, 2007 §§ 1.1401–1.1550 ...... (869–062–00091–0) ...... 58.00 Apr. 1, 2007 200–219 ...... (869–062–00033–2) ...... 37.00 Jan. 1, 2007 §§ 1.1551–End ...... (869–062–00092–8) ...... 50.00 Apr. 1, 2007 220–299 ...... (869–062–00034–1) ...... 61.00 Jan. 1, 2007 2–29 ...... (869–062–00093–6) ...... 60.00 Apr. 1, 2007 300–499 ...... (869–062–00035–9) ...... 47.00 Jan. 1, 2007 30–39 ...... (869–062–00094–4) ...... 41.00 Apr. 1, 2007 500–599 ...... (869–062–00036–7) ...... 39.00 Jan. 1, 2007 40–49 ...... (869–062–00095–2) ...... 28.00 7Apr. 1, 2007 600–899 ...... (869–062–00037–5) ...... 56.00 Jan. 1, 2007 50–299 ...... (869–062–00096–1) ...... 42.00 Apr. 1, 2007

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Title Stock Number Price Revision Date Title Stock Number Price Revision Date 300–499 ...... (869–062–00097–9) ...... 61.00 Apr. 1, 2007 63 (63.1440–63.6175) .... (869–062–00150–9) ...... 32.00 July 1, 2007 500–599 ...... (869–062–00098–7) ...... 12.00 6 Apr. 1, 2007 63 (63.6580–63.8830) .... (869–062–00151–7) ...... 32.00 July 1, 2007 600–End ...... (869–062–00099–5) ...... 17.00 Apr. 1, 2007 63 (63.8980–End) ...... (869–062–00152–5) ...... 35.00 July 1, 2007 27 Parts: 64–71 ...... (869–062–00153–3) ...... 29.00 July 1, 2007 1–39 ...... (869–062–00100–2) ...... 64.00 Apr. 1, 2007 72–80 ...... (869–062–00154–1) ...... 62.00 July 1, 2007 40–399 ...... (869–062–00101–1) ...... 64.00 Apr. 1, 2007 81–84 ...... (869–062–00155–0) ...... 50.00 July 1, 2007 400–End ...... (869–062–00102–9) ...... 18.00 Apr. 1, 2007 85–86 (85–86.599–99) .... (869–062–00156–8) ...... 61.00 July 1, 2007 86 (86.600–1–End) ...... (869–062–00157–6) ...... 61.00 July 1, 2007 28 Parts: ...... 87–99 ...... (869–062–00158–4) ...... 60.00 July 1, 2007 0–42 ...... (869–062–00103–7) ...... 61.00 July 1, 2007 100–135 ...... (869–062–00159–2) ...... 45.00 July 1, 2007 43–End ...... (869–062–00104–5) ...... 60.00 July 1, 2007 136–149 ...... (869–062–00160–6) ...... 61.00 July 1, 2007 29 Parts: 150–189 ...... (869–062–00161–4) ...... 50.00 July 1, 2007 0–99 ...... (869–062–00105–3) ...... 50.00 9July 1, 2007 190–259 ...... (869–062–00162–2) ...... 39.00 9July 1, 2007 100–499 ...... (869–062–00106–1) ...... 23.00 July 1, 2007 260–265 ...... (869–062–00163–1) ...... 50.00 July 1, 2007 500–899 ...... (869–062–00107–0) ...... 61.00 9July 1, 2007 266–299 ...... (869–062–00164–9) ...... 50.00 July 1, 2007 900–1899 ...... (869–062–00108–8) ...... 36.00 July 1, 2007 300–399 ...... (869–062–00165–7) ...... 42.00 July 1, 2007 1900–1910 (§§ 1900 to 400–424 ...... (869–062–00166–5) ...... 56.00 9July 1, 2007 1910.999) ...... (869–062–00109–6) ...... 61.00 July 1, 2007 425–699 ...... (869–062–00167–3) ...... 61.00 July 1, 2007 1910 (§§ 1910.1000 to 700–789 ...... (869–062–00168–1) ...... 61.00 July 1, 2007 end) ...... (869–062–00110–0) ...... 46.00 July 1, 2007 790–End ...... (869–062–00169–0) ...... 61.00 July 1, 2007 1911–1925 ...... (869–062–00111–8) ...... 30.00 July 1, 2007 41 Chapters: 1926 ...... (869–062–00112–6) ...... 50.00 July 1, 2007 1, 1–1 to 1–10 ...... 13.00 3 July 1, 1984 1927–End ...... (869–062–00113–4) ...... 62.00 July 1, 2007 1, 1–11 to Appendix, 2 (2 Reserved) ...... 13.00 3 July 1, 1984 30 Parts: 3–6 ...... 14.00 3 July 1, 1984 1–199 ...... (869–062–00114–2) ...... 57.00 July 1, 2007 7 ...... 6.00 3 July 1, 1984 200–699 ...... (869–062–00115–1) ...... 50.00 July 1, 2007 8 ...... 4.50 3 July 1, 1984 700–End ...... (869–062–00116–9) ...... 58.00 July 1, 2007 9 ...... 13.00 3 July 1, 1984 10–17 ...... 9.50 3 July 1, 1984 31 Parts: 18, Vol. I, Parts 1–5 ...... 13.00 3 July 1, 1984 0–199 ...... (869–062–00117–7) ...... 41.00 July 1, 2007 18, Vol. II, Parts 6–19 ...... 13.00 3 July 1, 1984 200–499 ...... (869–062–00118–5) ...... 46.00 July 1, 2007 18, Vol. III, Parts 20–52 ...... 13.00 3 July 1, 1984 500–End ...... (869–062–00119–3) ...... 62.00 July 1, 2007 19–100 ...... 13.00 3 July 1, 1984 32 Parts: 1–100 ...... (869–062–00170–3) ...... 24.00 July 1, 2007 1–39, Vol. I ...... 15.00 2 July 1, 1984 101 ...... (869–062–00171–1) ...... 21.00 July 1, 2007 1–39, Vol. II ...... 19.00 2 July 1, 1984 102–200 ...... (869–062–00172–0) ...... 56.00 July 1, 2007 1–39, Vol. III ...... 18.00 2 July 1, 1984 201–End ...... (869–062–00173–8) ...... 24.00 July 1, 2007 ...... 1–190 (869–062–00120–7) 61.00 July 1, 2007 42 Parts: 191–399 ...... (869–062–00121–5) ...... 63.00 July 1, 2007 1–399 ...... (869–062–00174–6) ...... 61.00 Oct. 1, 2007 400–629 ...... (869–062–00122–3) ...... 61.00 July 1, 2007 400–413 ...... (869–062–00175–4) ...... 32.00 Oct. 1, 2007 630–699 ...... (869–062–00123–1) ...... 37.00 July 1, 2007 414–429 ...... (869–062–00176–2) ...... 32.00 Oct. 1, 2007 700–799 ...... (869–062–00124–0) ...... 46.00 July 1, 2007 430–End ...... (869–060–00176–0) ...... 64.00 Oct. 1, 2006 800–End ...... (869–062–00125–8) ...... 47.00 July 1, 2007 43 Parts: 33 Parts: 1–999 ...... (869–060–00177–8) ...... 56.00 Oct. 1, 2006 1–124 ...... (869–062–00126–6) ...... 57.00 July 1, 2007 1000–end ...... (869–062–00179–7) ...... 62.00 Oct. 1, 2007 125–199 ...... (869–062–00127–4) ...... 61.00 July 1, 2007 200–End ...... (869–062–00128–2) ...... 57.00 July 1, 2007 44 ...... (869–060–00179–4) ...... 50.00 Oct. 1, 2006 34 Parts: 45 Parts: 1–299 ...... (869–062–00129–1) ...... 50.00 July 1, 2007 1–199 ...... (869–062–00181–9) ...... 60.00 Oct. 1, 2007 300–399 ...... (869–062–00130–4) ...... 40.00 July 1, 2007 200–499 ...... (869–060–00181–6) ...... 34.00 Oct. 1, 2006 400–End & 35 ...... (869–062–00131–2) ...... 61.00 8 July 1, 2007 500–1199 ...... (869–062–00183–5) ...... 56.00 Oct. 1, 2007 1200–End ...... (869–062–00184–3) ...... 61.00 Oct. 1, 2007 36 Parts: 1–199 ...... (869–062–00132–1) ...... 37.00 July 1, 2007 46 Parts: 200–299 ...... (869–062–00133–9) ...... 37.00 July 1, 2007 1–40 ...... (869–062–00185–1) ...... 46.00 Oct. 1, 2007 300–End ...... (869–062–00134–7) ...... 61.00 July 1, 2007 41–69 ...... (869–062–00186–0) ...... 39.00 Oct. 1, 2007 70–89 ...... (869–060–00186–7) ...... 14.00 Oct. 1, 2006 37 ...... (869–062–00135–5) ...... 58.00 July 1, 2007 90–139 ...... (869–062–00188–6) ...... 44.00 Oct. 1, 2007 38 Parts: 140–155 ...... (869–062–00189–4) ...... 25.00 Oct. 1, 2007 0–17 ...... (869–062–00136–3) ...... 60.00 July 1, 2007 156–165 ...... (869–062–00190–8) ...... 34.00 Oct. 1, 2007 18–End ...... (869–062–00137–1) ...... 62.00 July 1, 2007 166–199 ...... (869–060–00190–5) ...... 46.00 Oct. 1, 2006 ...... 39 ...... (869–062–00138–0) ...... 42.00 July 1, 2007 200–499 (869–062–00192–4) 40.00 Oct. 1, 2007 500–End ...... (869–062–00193–2) ...... 25.00 Oct. 1, 2007 40 Parts: 47 Parts: 1–49 ...... (869–062–00139–8) ...... 60.00 July 1, 2007 ...... 50–51 ...... (869–062–00140–1) ...... 45.00 July 1, 2007 0–19 (869–062–00194–1) 61.00 Oct. 1, 2007 ...... 52 (52.01–52.1018) ...... (869–062–00141–0) ...... 60.00 July 1, 2007 20–39 (869–060–00194–8) 46.00 Oct. 1, 2006 ...... 52 (52.1019–End) ...... (869–062–00142–8) ...... 64.00 July 1, 2007 40–69 (869–062–00196–7) 40.00 Oct. 1, 2007 ...... 53–59 ...... (869–062–00143–6) ...... 31.00 July 1, 2007 70–79 (869–060–00196–4) 61.00 Oct. 1, 2006 ...... 60 (60.1–End) ...... (869–062–00144–4) ...... 58.00 July 1, 2007 80–End (869–062–00198–3) 61.00 Oct. 1, 2007 60 (Apps) ...... (869–062–00145–2) ...... 57.00 July 1, 2007 48 Chapters: 61–62 ...... (869–062–00146–1) ...... 45.00 July 1, 2007 1 (Parts 1–51) ...... (869–062–00199–1) ...... 63.00 Oct. 1, 2007 63 (63.1–63.599) ...... (869–062–00147–9) ...... 58.00 July 1, 2007 1 (Parts 52–99) ...... (869–062–00200–9) ...... 49.00 Oct. 1, 2007 63 (63.600–63.1199) ...... (869–062–00148–7) ...... 50.00 July 1, 2007 2 (Parts 201–299) ...... (869–062–00201–7) ...... 50.00 Oct. 1, 2007 63 (63.1200–63.1439) .... (869–062–00149–5) ...... 50.00 July 1, 2007 3–6 ...... (869–062–00202–5) ...... 34.00 Oct. 1, 2007

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Title Stock Number Price Revision Date 7–14 ...... (869–062–00203–3) ...... 56.00 Oct. 1, 2007 15–28 ...... (869–062–00204–1) ...... 47.00 Oct. 1, 2007 29–End ...... (869–060–00204–9) ...... 47.00 Oct. 1, 2006 49 Parts: *1–99 ...... (869–062–00206–8) ...... 60.00 Oct. 1, 2007 100–185 ...... (869–062–00207–6) ...... 63.00 Oct. 1, 2007 186–199 ...... (869–062–00208–4) ...... 23.00 Oct. 1, 2007 200–299 ...... (869–062–00208–1) ...... 32.00 Oct. 1, 2007 300–399 ...... (869–062–00210–6) ...... 32.00 Oct. 1, 2007 400–599 ...... (869–062–00210–3) ...... 64.00 Oct. 1, 2007 600–999 ...... (869–062–00212–2) ...... 19.00 Oct. 1, 2007 1000–1199 ...... (869–062–00213–1) ...... 28.00 Oct. 1, 2007 1200–End ...... (869–062–00214–9) ...... 34.00 Oct. 1, 2007 50 Parts: 1–16 ...... (869–060–00214–6) ...... 11.00 10 Oct. 1, 2006 17.1–17.95(b) ...... (869–060–00215–4) ...... 32.00 Oct. 1, 2006 17.95(c)–end ...... (869–062–00217–3) ...... 32.00 Oct. 1, 2007 17.96–17.99(h) ...... (869–062–00218–1) ...... 61.00 Oct. 1, 2007 17.99(i)–end and 17.100–end ...... (869–060–00218–9) ...... 47.00 10 Oct. 1, 2006 *18–199 ...... (869–062–00226–3) ...... 50.00 Oct. 1, 2007 200–599 ...... (869–062–00221–1) ...... 45.00 Oct. 1, 2007 *600–659 ...... (869–062–00222–0) ...... 31.00 Oct. 1, 2007 660–End ...... (869–062–00223–8) ...... 31.00 Oct. 1, 2007 CFR Index and Findings Aids ...... (869–062–00050–2) ...... 62.00 Jan. 1, 2007 Complete 2007 CFR set ...... 1,389.00 2007 Microfiche CFR Edition: Subscription (mailed as issued) ...... 332.00 2007 Individual copies ...... 4.00 2007 Complete set (one-time mailing) ...... 332.00 2006 Complete set (one-time mailing) ...... 325.00 2005 1 Because Title 3 is an annual compilation, this volume and all previous volumes should be retained as a permanent reference source. 2 The July 1, 1985 edition of 32 CFR Parts 1–189 contains a note only for Parts 1–39 inclusive. For the full text of the Defense Acquisition Regulations in Parts 1–39, consult the three CFR volumes issued as of July 1, 1984, containing those parts. 3 The July 1, 1985 edition of 41 CFR Chapters 1–100 contains a note only for Chapters 1 to 49 inclusive. For the full text of procurement regulations in Chapters 1 to 49, consult the eleven CFR volumes issued as of July 1, 1984 containing those chapters. 4 No amendments to this volume were promulgated during the period January 1, 2005, through January 1, 2006. The CFR volume issued as of January 1, 2005 should be retained. 5 No amendments to this volume were promulgated during the period January 1, 2006, through January 1, 2007. The CFR volume issued as of January 6, 2006 should be retained. 6 No amendments to this volume were promulgated during the period April 1, 2000, through April 1, 2006. The CFR volume issued as of April 1, 2000 should be retained. 7 No amendments to this volume were promulgated during the period April 1, 2006 through April 1, 2007. The CFR volume issued as of April 1, 2006 should be retained. 8 No amendments to this volume were promulgated during the period July 1, 2005, through July 1, 2006. The CFR volume issued as of July 1, 2005 should be retained. 9 No amendments to this volume were promulgated during the period July 1, 2006, through July 1, 2007. The CFR volume issued as of July 1, 2006 should be retained. 10 No amendments to this volume were promulgated during the period October 1, 2005, through October 1, 2006. The CFR volume issued as of October 1, 2005 should be retained.

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