8–12–08 Tuesday Vol. 73 No. 156 Aug. 12, 2008

Pages 46797–47026

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Contents Federal Register Vol. 73, No. 156

Tuesday, August 12, 2008

Agriculture Department Defense Department See Natural Resources Conservation Service See Army Department See Defense Acquisition Regulations System Alcohol and Tobacco Tax and Trade Bureau RULES PROPOSED RULES TRICARE; Reserve and Guard Family Member Benefits, Proposed Establishment of the Happy Canyon of Santa 46808–46809 Barbara Viticultural Area (2007R-311P), 46830–46835 NOTICES Proposed Establishment of the Lake Chelan Viticultural Privacy Act; Systems of Records, 46888–46891 Area (2007R-103P), 46836–46842 Proposed Establishment of the Upper Mississippi River Education Department Valley Viticultural Area (2007R-055P), 46842–46849 NOTICES Waiver for the Adult Education and Family Literacy Act to Army Department Certain Outlying Areas, 46899–46901 NOTICES Privacy Act; Systems of Records, 46891–46899 Employment and Training Administration NOTICES Coast Guard Affirmative Determinations Regarding Applications for NOTICES Reconsideration: Meetings: 3M Touch Systems, etc.; Milwaukee, WI, 46920 Commercial Fishing Industry Vessels, 46912–46913 Amended Certification Regarding Eligibility to Apply for Worker and Alternative Trade Adjustment Assistance: Commerce Department Clayton Marcus Co., etc.; Hickory, NC, 46920 See Foreign-Trade Zones Board Clayton Marcus Co., Inc., etc.; Hickory, NC, 46920–46921 See International Trade Administration MEGTEC Systems, Inc., Wellford, SC, Jscksonville, FL, See National Institute of Standards and Technology Las Cruces, NM, MESA, AZ, 46921 See National Oceanic and Atmospheric Administration Amended Certifications Regarding Eligibility to Apply for NOTICES Worker and Alternative Trade Adjustment Assistance: Agency Information Collection Activities; Proposals, Unilever Illinois Manufacturing, LLC, etc., Franklin Park, Submissions, and Approvals, 46869–46870 IL, 46921–46922 Determinations: Consumer Product Safety Commission Eligibility to Apply for Worker and Alternative Trade NOTICES Adjustment Assistance, 46922–46924 Provisional Acceptance of a Settlement Agreement and Investigations: Order: Certifications of Eligibility to Apply for Worker and A & R Knitwear, Inc., 46874–46876 Alternative Trade Adjustment Assistance, 46924– AJ Blue LLC, 46876–46877 46925 Cobmex, Inc., 46877–46879 Investigation Terminations: Liberty Apparel Co., Inc., 46879–46880 Comprehensive Logistic, Inc. Including Leased Workers Rebelette International Trading Corp., 46880–46882 of Source Providers, Inc.; Youngstown, OH, 46924 Scope Imports, Inc., 46882–46883 Manugraph DGM, Inc.; Millersburg, PA, 46924 Sears Holdings Management Corp., 46883–46885 Revised Determinations on Reconsideration of Alternative Siegfried & Parzifal, Inc., 46885–46886 Trade Adjustment Assistance: Vacation Clothing Exchange, Inc., d/b/a Basix USA, Destron Fearing Corp. etc.; South Saint Paul, MN, 46926 46886–46888 Energy Department Defense Acquisition Regulations System See Southwestern Power Administration RULES See Western Area Power Administration Defense Federal Acquisition Regulation Supplement: Competition Requirements for Purchases from Federal Environmental Protection Agency Prison Industries (DFARS Case 2008-D015), 46816– NOTICES 46817 Agency Information Collection Activities; Proposals, Conforming Changes - Standards of Conduct and Submissions, and Approvals, 46903–46907 Extraordinary Contractual Actions (DFARS Case Draft Integrated Science Assessment for Oxides of Nitrogen 2008-D004), 46814–46816 and Sulfur - Environmental Criteria; Second External Item Identification and Valuation Clause Update (DFARS Review Draft, 46908–46909 Case 2007-D007), 46819–46821 Ship Critical Safety Items (DFARS Case 2007-D016), Executive Office of the President 46817–46818 See Trade Representative, Office of United States Small Business Program Name Change (DFARS Case 2008-D001), 46813–46814 Federal Aviation Administration Technical Amendments, 46817 RULES Trade Agreements - New Thresholds (DFARS Case 2007- Special Awareness Training for the Washington, DC D023), 46818 Metropolitan Area, 46797–46804

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PROPOSED RULES Health and Human Services Department Airworthiness Directives: See Food and Drug Administration McDonnell Douglas Model DC 8 11, DC 8 12, DC 8 21, See Health Resources and Services Administration DC 8 31, DC 8 32, DC 8 33, DC 8 41, DC 8 42, and See National Institutes of Health DC 8 43 Airplanes et al., 46823–46826 Health Resources and Services Administration Federal Emergency Management Agency NOTICES RULES Meetings: Changes in Flood Elevation Determinations, 46809–46811 Advisory Commission on Childhood Vaccines, 46911 Final Flood Elevation Determinations, 46811–46813 Advisory Committee on Training in Primary Care PROPOSED RULES Medicine and Dentistry, 46911 Proposed Flood Elevation Determinations, 46849–46860 NOTICES Homeland Security Department Disaster Declarations: See Coast Guard Kansas, 46913 See Federal Emergency Management Agency Minnesota, 46914 Housing and Urban Development Department Federal Motor Carrier Safety Administration PROPOSED RULES NOTICES Public Access to HUD Records under the Freedom of Demonstration Project on NAFTA Trucking Provisions, Information Act and Production of Material or 46963–46972 Provision of Testimony by HUD Employees: Qualification of Drivers; Exemption Applications: Revisions to Policies and Practices regarding Subpoenas Vision, 46973–46975 and Other Demands for Testimony, 46826–46830 Federal Railroad Administration Interior Department PROPOSED RULES Railroad Rehabilitation and Improvement Financing See Fish and Wildlife Service Program; Extension of Comment Period, 46860 See National Park Service See Reclamation Bureau Federal Reserve System See Surface Mining Reclamation and Enforcement Office NOTICES Change in Bank Control Notices, Acquisition of Shares of International Trade Administration Bank or Bank Holding Companies; Correction, 46909 NOTICES Agency Information Collection Activities; Proposals, Federal Retirement Thrift Investment Board Submissions, and Approvals, 46870–46871 NOTICES Antidumping Duty: Meetings; Sunshine Act, 46909 Certain Pasta from Italy, 46871

Federal Transit Administration Justice Department NOTICES NOTICES National Transit Database: Consent Decree: Policy on Reporting of Coordinated Human Services United States v. Donald E. Horne, et al., 46919 Transportation Data, 46975–46977 United States v. Republic Dumpco, Inc., et al., 46919– 46920 Fish and Wildlife Service RULES Labor Department Endangered and Threatened Wildlife and Plants: See Employment and Training Administration Designation of Critical Habitat for the Devils River Minnow, 46988–47026 National Institute of Standards and Technology PROPOSED RULES NOTICES Endangered and Threatened Wildlife and Plants: Meetings: 12 Species of Picture-wing Flies from the Hawaiian Information Security and Privacy Advisory Board, 46871– Islands, 46860–46867 46872 Bliss Rapids snail (Taylorconcha serpenticola), 46867– Public Safety Voice over Internet Protocol (VoIP) Public 46868 Workshop for Organizations Interested in Utilization NOTICES of VoIP for Communication between Public Safe, Merritt Island National Wildlife Refuge, 46914–46915 46872–46873

Food and Drug Administration National Institutes of Health NOTICES NOTICES Agency Information Collection Activities; Proposals, Meetings: Submissions, and Approvals, 46909–46911 Center for Scientific Review, 46912

Foreign-Trade Zones Board National Oceanic and Atmospheric Administration NOTICES RULES Application and Public Hearing: Fisheries of the Exclusive Economic Zone Off Alaska: Proposed Foreign-Trade Zone, Butte-Silver Bow, MT, Shallow-Water Species Fishery by Vessels Using Trawl 46870 Gear in the Gulf of Alaska, 46821–46822

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NOTICES State Department Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 46873 Re-chartering of the Advisory Committee on International Federal Consistency Appeal by Mr. G. Walter Swain, Communications and Information Policy (ACICIP), 46873–46874 46962–46963 Issuance of Permit Amendment: Marine Mammals (File No. 1121-1900), 46874 Surface Mining Reclamation and Enforcement Office RULES National Park Service Utah Regulatory Program, 46804–46807 NOTICES Environmental Impact Statements; Availability, etc.: Surface Transportation Board Denali Park Road Vehicle Management Plan, 46915– NOTICES 46916 Agency Information Collection Activities; Proposals, Ice Age National Scenic Trail Interpretive Site and Cross Submissions, and Approvals, 46977–46979 Plains Unit of the Ice Age National Scientific Reserve, WI, 46916–46917 Thrift Supervision Office Natural Resources Conservation Service NOTICES Agency Information Collection Activities; Proposals, NOTICES Environmental Impact Statements; Availability, etc.: Submissions, and Approvals, 46983–46985 Rehabilitation of Grade Stabilization Structure W-3, Papillion Creek Watershed, Washington County, NE, Trade Representative, Office of United States 46869 NOTICES Fiscal Year 2008 Tariff-Rate Quota Allocations of Raw Cane Nuclear Regulatory Commission Sugar, and Sugar-Containing Products; Correction, NOTICES 46936 Facility Operating Licenses, etc.: Biweekly Notices, 46926–46935 Transportation Department Meetings; Sunshine Act, 46935 See Federal Aviation Administration See Federal Motor Carrier Safety Administration Office of United States Trade Representative See Federal Railroad Administration See Trade Representative, Office of United States See Federal Transit Administration See Surface Transportation Board Reclamation Bureau NOTICES Treasury Department Quarterly Status Report of Water Service, Repayment, and See Alcohol and Tobacco Tax and Trade Bureau Other Water-Related Contract Negotiations, 46917– See Thrift Supervision Office 46919 NOTICES Agency Information Collection Activities; Proposals, Securities and Exchange Commission Submissions, and Approvals, 46979–46983 NOTICES Self-Regulatory Organizations; Proposed Rule Changes: Western Area Power Administration Boston Stock Exchange, Inc.; Boston Stock Exchange NOTICES Clearing Corp., 46936–46955 Boulder Canyon Project, 46902–46903 Chicago Board Options Exchange, Inc., 46955–46956 National Securities Clearing Corp., 46956–46960 Separate Parts In This Issue Small Business Administration NOTICES Part II Disaster Declaration: Interior Department, Fish and Wildlife Service, 46988– Mississippi, 46960–46961 47026 Disaster Declarations: California, 46961 Idaho, 46961–46962 Kansas, 46962 Reader Aids Minnesota, 46962 Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, Southwestern Power Administration and notice of recently enacted public laws. NOTICES To subscribe to the Federal Register Table of Contents Re-Opening of Public Comment Period for White River LISTSERV electronic mailing list, go to http:// Minimum Flows: listserv.access.gpo.gov and select Online mailing list Proposed Determination of Federal and Non-Federal archives, FEDREGTOC-L, Join or leave the list (or change Hydropower Impacts, 46901–46902 settings); then follow the instructions.

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CFR PARTS AFFECTED IN THIS ISSUE

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

14 CFR 91...... 46797 Proposed Rules: 39...... 46823 24 CFR Proposed Rules: 15...... 46826 27 CFR Proposed Rules: 9 (3 documents) ...... 46830, 46836, 46842 30 CFR 944...... 46804 32 CFR 199...... 46808 44 CFR 65...... 46809 67...... 46811 Proposed Rules: 67 (3 documents) ...... 46849, 46851, 46853 48 CFR Ch. 2 ...... 46813 203...... 46814 208 (2 documents) ...... 46816, 46817 209...... 46817 217...... 46817 225...... 46817 236...... 46818 246...... 46817 250...... 46814 252 (3 documents) ...... 46814, 46817, 46819 49 CFR Proposed Rules: 260...... 46860 50 CFR 17...... 46988 679...... 46821 Proposed Rules: 17 (2 documents) ...... 46860, 46867

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Rules and Regulations Federal Register Vol. 73, No. 156

Tuesday, August 12, 2008

This section of the FEDERAL REGISTER FOR FURTHER INFORMATION CONTACT: For A. Establishment of the Washington, DC contains regulatory documents having general technical questions concerning this final ADIZ applicability and legal effect, most of which rule contact: John D. Lynch, B. Summary of the Special Awareness are keyed to and codified in the Code of Training NPRM Certification and General Aviation C. Other Washington, DC ADIZ-Related Federal Regulations, which is published under Operations Branch, AFS–810, General 50 titles pursuant to 44 U.S.C. 1510. Rulemaking Activity Aviation and Commercial Division, II. Discussion of Comments The Code of Federal Regulations is sold by Flight Standards Service, Federal A. Application of the Training Program the Superintendent of Documents. Prices of Aviation Administration, 800 1. Applicability to Pilots new books are listed in the first FEDERAL Independence Avenue, SW., 2. Size of the ‘‘Training Zone’’ REGISTER issue of each week. Washington, DC 20591; telephone (202) 3. Frequency of Training 267–3844. B. Washington, DC ADIZ Operating Requirements For legal questions concerning this DEPARTMENT OF TRANSPORTATION C. Air Traffic Control final rule contact: Michael Chase, Air D. The FAA’s Enforcement Policy Federal Aviation Administration Traffic and Airman/Airport Certification E. Charting the Training Area Law Branch, Office of the Chief F. Educational Outreach G. Impact on General Aviation Pilots 14 CFR Part 91 Counsel, Federal Aviation Administration, 800 Independence H. Certificate of Training Completion I. The FAA’s Web site [Docket No. FAA–2006–25250; Amdt. No. Avenue, SW., Washington, DC 20591; J. Adopting a Training Requirement Based 91–302] telephone (202) 267–3073. on a NOTAM RIN 2120–AI63 SUPPLEMENTARY INFORMATION: III. Differences Between the NPRM and the Final Rule Special Awareness Training for the Authority for This Rulemaking IV. Paperwork Reduction Act Washington, DC Metropolitan Area V. International Compatibility The Administrator of the FAA has VI. Regulatory Evaluation, Regulatory AGENCY: Federal Aviation broad authority to regulate the safe and Flexibility Determination, International Administration (FAA), DOT. efficient use of the navigable airspace Trade Impact Assessment, and Unfunded (49 U.S.C. 40103). The Administrator Mandates Assessment ACTION: Final rule. also is authorized to issue air traffic VII. Executive Order 13132, Federalism VIII. Environmental Analysis SUMMARY: The FAA is requiring ‘‘special rules and regulations to govern the flight of aircraft, the navigation, protection IX. Regulations That Significantly Affect awareness’’ training for any pilot who Energy Supply, Distribution, or Use flies under visual flight rules (VFR) and identification of aircraft for the X. Availability of Rulemaking Documents within a 60-nautical-mile (NM) radius of protection of persons and property on XI. Small Business Regulatory Enforcement the Washington, DC VHF omni- the ground, and for the efficient use of Fairness Act navigable airspace. Additionally, directional range/distance measuring I. Background equipment (DCA VOR/DME). This pursuant to 49 U.S.C. 40103(b)(3) the training has been developed and Administrator has the authority, in A. Establishment of the Washington, DC provided by the FAA on its consultation with the Secretary of ADIZ Defense, to ‘‘establish security www.FAASafety.gov Web site and In February 2003, the FAA, in provisions that will encourage and focuses primarily on training pilots on consultation with the Department of allow maximum use of the navigable the procedures for flying in and around Homeland Security (DHS), the airspace by civil aircraft consistent with the Washington, DC Metropolitan Area Department of Defense (DOD), and other national security.’’ Defense Identification Zone (ADIZ) and Federal agencies, issued Notices to the Washington, DC Metropolitan Area List of Abbreviations and Terms Frequently Airmen (NOTAMs) implementing an Flight Restricted Zone (FRZ). The rule Used in This Document outer Air Defense Identification Zone will reduce the number of unauthorized ADIZ—Air Defense Identification Zone (ADIZ) and an inner Flight Restricted flights into the airspace of the AOPA—Aircraft Owners and Pilots Zone (FRZ) around the Washington, DC Washington, DC Metropolitan Area Association Metropolitan Area. At that time, the ADIZ and FRZ through education of the ATC—Air Traffic Control ADIZ closely resembled the Washington pilot community. DCA VOR/DME—Washington, DC very high tri-area Class B airspace area. The FRZ, frequency omni-directional range/distance DATES: This final rule is effective on measuring equipment requiring more stringent access February 9, 2009. Affected parties, FDC—Flight Data Center procedures than the ADIZ, was however, do not have to comply with FRZ—Flight Restricted Zone established within an approximately 15- the information collection requirement HAI—Helicopter Association International nautical-mile (NM) radius from the in § 91.161 until the FAA publishes in IFR—Instrument flight rules Washington, DC very high frequency the Federal Register the control number NATA—National Air Transportation omni-directional range/distance assigned by the Office of Management Association measuring equipment (DCA VOR/DME). and Budget (OMB) for this information NM—Nautical mile The NOTAMs also established radio collection requirement. Publication of NOTAM—Notice to Airmen communication, transponder, and flight NPRM—Notice of Proposed Rulemaking the control number notifies the public VFR—Visual flight rules plan requirements for pilots to follow. that OMB has approved this information Some types of operations, such as U.S. collection requirement under the Table of Contents military, law enforcement, and Paperwork Reduction Act of 1995. I. Background approved aeromedical flights, are

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excluded from the requirements. The a potentially hazardous intercept under final rule is not directly related to the ADIZ and the FRZ, along with other circumstances that typically prove not issues addressed in that rulemaking security measures, enable the law to have been a threat to our national action. enforcement and security communities security. II. Discussion of Comments to identify pilots and their intentions B. Summary of the Special Awareness and to track aircraft operating in the Training NPRM The FAA received 65 comments on vicinity of the nation’s capital. the NPRM, primarily from individuals On August 30, 2007, the airspace On July 5, 2006, the FAA issued a but also from the Aircraft Owners and restrictions in the Washington, DC area Notice of Proposed Rulemaking (NPRM) Pilots Association (AOPA), the National were modified by Flight Data Center entitled, ‘‘Special Awareness Training Air Transportation Association (NATA), (FDC) NOTAMs 07/0206 and 07/0211. for the Washington, DC Metropolitan and Helicopter Association While the specifications for the FRZ Area’’ (71 FR 38118). The FAA International (HAI). The FAA also remain essentially the same (except that proposed that pilots flying VFR within received comments related to the the western boundary has been moved a radius of 100 nautical miles (NM) of August 4, 2005, ‘‘Washington, DC slightly eastward), the radius of the the DCA VOR/DME complete free Metropolitan Area Special Flight Rules ADIZ has been reduced to a 30-NM online Special Awareness Training for Area’’ proposed rule. Those comments radius from the DCA VOR/DME, thereby operating in the Washington, DC are outside the scope of this rulemaking reducing the number of airports affected metropolitan area and other Temporary and will not be addressed here. Flight Restriction (TFR) areas. Pilots by the airspace restrictions and making Commenters generally expressed would be required to complete the more navigable airspace available to opposition to the NPRM. While many training one time. Upon completion of pilots conducting operations in the area. agreed that training could be helpful, the online training, a pilot would In addition, the requirements to obtain they did not believe that the FAA’s download a copy of his or her certificate appropriate authorization, establish training program would be effective. A two-way communication with Air of training completion. A copy of the discussion of the comments follows. Traffic Control (ATC), be equipped with certificate would have to be presented an operating transponder with altitude- upon request of an authorized A. Application of the Training Program reporting capability, and file a flight representative of the FAA, an Commenters had varying opinions on plan remain the same. However, the authorized representative of National the FAA’s proposed audience, revised NOTAM also added a Transportation Safety Board (NTSB), curriculum, and testing criteria for the ‘‘maneuvering area’’ for Leesburg any Federal, State, or local law Special Awareness Training. After Airport, and imposed an airspeed enforcement officer, or an authorized restriction of 180 knots or less (if representative of the Transportation considering all these comments, the capable) within the ADIZ/FRZ. For VFR Security Administration (TSA). FAA has decided not to change the aircraft operations conducted between The comment period for the NPRM proposed requirements for the training 30 and 60 NM of the DCA VOR/DME, closed on September 5, 2006. The FAA program, its target audience or its aircraft are restricted to an indicated is issuing this rule essentially as frequency. The agency believes that due airspeed of 230 knots or less, unless proposed, except that the proposed to the potential impact of an incursion otherwise authorized. requirement that training must be on the pilot, Federal resources, and the Since the creation of the ADIZ, there completed by pilots flying within a 100- public, mandatory training is necessary, have been over 3,000 incursions into the NM radius from the DCA VOR/DME has even if the incursion was inadvertent. Washington, DC ADIZ. Between been modified in the final rule to The FAA believes the training February 12, 2003 and April 30, 2008, require training for pilots flying within curriculum is well designed and focuses there were approximately 3,200 a 60-NM radius of the DCA VOR/DME. on how to fly safely in the Washington, reported observed incursions into the The FAA will place a note on the DC ADIZ and FRZ. The training is Washington, DC ADIZ. A few of these Washington Sectional, Baltimore- designed to cover the correct procedures flights came so close to the Capitol and Washington Terminal Area Sectional, for operating near or inside the DC the White House that they caused mass Baltimore-Washington Helicopter Route ADIZ. While at least one commenter evacuations of these buildings and other Sectional, and the CG–21 World would have the training also address Federal office buildings. In other Aeronautical Chart about the training normal, abnormal, and emergency incidents, civilian aircraft have been requirement for the Washington, DC procedures resulting from transponder intercepted by U.S. Coast Guard ADIZ and FRZ airspace. failure, navigation errors, dyslexia, or helicopters and U.S. Air Force fighter In addition, the heading of § 91.161 accidentally hitting the wrong button on airplanes. Although all of the incursions has been modified to better describe the annunciator or radio panel, the FAA did were eventually determined to be non- content of the section, and a paragraph not feel this was appropriate, as there criminal in nature, each incursion entitled ‘‘Special Awareness Training’’ are other training programs that cover places an unnecessary burden on has been added to describe the training this material. Federal, state, and local law required by § 91.161 and where it is 1. Applicability to Pilots enforcement resources. For instance, located. when an unauthorized aircraft With regard to whom the training penetrates restricted airspace, the FAA’s C. Other Washington, DC ADIZ-Related requirement applied, a few commenters air traffic controllers must divert Rulemaking Activity believed that training should be necessary resources to monitor the On August 4, 2005, the FAA issued an required of all pilots, not just those who aircraft’s flight, alert security operations, NPRM entitled, ‘‘Washington, DC anticipated flying within 100 NM of the and communicate information about the Metropolitan Area Special Flight Rules DCA VOR/DME under IFR. In fact, one aircraft to appropriate military and law Area’’ (70 FR 45250) that proposed to commenter felt that completion of enforcement agencies. Several branches codify current flight restrictions for training should be a prerequisite for any of the Federal government, the military, certain aircraft operations in the pilot’s license renewal. Others, on the and local law enforcement are forced to Washington, DC metropolitan area. That other hand, asked that the agency carve respond to the situation and to execute rule remains in development, and this out exclusions for certain types of pilots

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and operations or the training should be procedure requirements for all flight- issuance of this final rule get credit for voluntary. restricted zones. complying with the requirement. The FAA believes it is important that A pilot who completed the online any pilot, whether acting as pilot in 2. Size of the ‘‘Training Zone’’ training prior to issuance of this final command or second in command, As proposed, the FAA would have rule is not required to retake the receive Special Awareness Training if required pilots flying VFR within a 100- training. The FAA is only requiring that the pilot has any intention of operating NM radius of the DCA VOR/DME to the training obligation be met once. an aircraft under VFR within 60 NM of certify that they had completed the However, a pilot has an on-going the DCA VOR/DME. Thus, § 91.161 training program that is the subject of responsibility to be competent and applies when conducting operations this rule. proficient. The FAA encourages airmen under 14 CFR parts 91, 121, 125, 129, Several commenters believed that to review periodically the Special 133, 135 and 137. And, regardless of the requiring the larger training zone had Awareness Training program. type of pilot certificate held (e.g., sport, the effect of extending the Washington, Furthermore, the procedures for recreational, student, private, DC ADIZ and its operating requirements operating in the Washington, DC ADIZ commercial, airline transport pilot to a 100-NM radius of the DCA VOR/ and FRZ are issued by NOTAM, and a (ATP), or foreign), or where the flight DME. Since publication of the NPRM, pilot is already required to be familiar originated (e.g., Virginia, California, or the size of the DC ADIZ itself has been with any NOTAM issued in the pilot’s even Canada), a pilot is subject to this reduced to 30 NM from the DCA VOR/ flying area prior to any departure. (See Special Awareness Training DME by the August 30, 2007 NOTAM. § 91.103.) The training also will be requirement as a prerequisite for flying Also by NOTAM (FDC NOTAM 7/0204), emphasized during flight reviews and under VFR within a 60-NM radius of the the FAA has implemented an additional the FAA-sponsored pilot proficiency DCA VOR/DME. speed restriction for VFR operations awards program (WINGS Program). One commenter argued for a sport between 30 NM and 60 NM of the DCA pilot exclusion because these pilots do B. Washington, DC ADIZ Operating VOR/DME. The FAA has therefore not routinely fly in controlled airspace. Requirements decided to reduce the size of the He also suggested that pilots of gliders, Many commenters, including AOPA ‘‘training zone’’ to 60 NM from the DCA balloons, powered parachutes, and and HAI, said the operating procedures VOR/DME, which matches the 60-NM weight-shift-control aircraft be excluded in the Washington, DC ADIZ are overly speed restriction area. While this action because these aircraft are limited in complex or are obscure. These maintains a buffer zone, i.e., an area for range. The FAA acknowledges that commenters believed that if the FAA which the training requirements apply holders of sport pilot certificates are not would fix the difficulties of operating in that is larger than the DC ADIZ itself, permitted to operate in Class A, B, C, or the ADIZ, rather than require training, establishing a training area larger than D airspace, at an airport located in Class incursions would decrease. B, C, or D airspace, or at an airport the Washington, DC ADIZ does not The FAA recognizes there have been having an operational control tower. imply that the procedures for operating difficulties with operating in the ADIZ. However, sport pilots who hold the in the Washington, DC ADIZ have been Since the issuance of the Special necessary endorsements and whose expanded to cover the larger airspace. Awareness Training NPRM, the aircraft are appropriately equipped may In addition, many commenters procedures for operating in the perform those operations and hence asserted that requiring training within a Washington, DC ADIZ have been could make unauthorized flights into 100-NM radius of the DCA VOR/DME modified through an amended NOTAM. the Washington, DC airspace. Therefore was too prescriptive. As discussed The FAA believes that operating in the the FAA has determined that it is above, the FAA has reduced the training area is now less difficult. Regardless, the necessary to require this training of zone to a 60-NM radius from the DCA FAA believes that pilot education sport pilots as part of the agency’s VOR/DME under this final rule. The remains critical. efforts to educate the pilot community FAA has decided that a 30-NM distance The FAA is issuing this final rule to and reduce the number of unauthorized from the outer edges of the Washington, establish Special Awareness Training flights into the Washington, DC DC ADIZ is a sufficient buffer of for pilots who fly within the restricted airspace. In addition, the FAA does not airspace. The agency has determined and special-use airspace of the agree that an aircraft’s range limitations that the majority of pilots who Washington, DC Metropolitan Area would necessarily prevent a pilot from inadvertently entered the Washington, under visual flight rules. The training, making an unauthorized flight into the DC ADIZ airspace departed from an which is currently available online on Washington, DC airspace. The FAA airport within a 60-NM radius of the the http://www.FAASafety.gov Web site, maintains that no matter what the pilot DCA VOR/DME. Therefore, reducing the focuses on how to avoid and operate certificate or aircraft, if a pilot is flying training zone any further would not be safely within the Washington, DC under VFR in the identified area, then prudent. Metropolitan Area ADIZ and FRZ. The training should be required. 3. Frequency of Training FAA believes that ‘‘pilot error’’ is the AOPA recommended exclusion for biggest contributor to violations of the pilots who have been vetted for A minority of commenters expressed restricted/special-use airspaces in the operations into the FRZ since they concern that the training will not be Washington, DC area, and through already receive special security training. effective because it is a one-time training, the number of inadvertent The FAA is familiar with the security obligation rather than a recurrent incursions into this airspace will be training requirements and finds requirement. There was fear that a pilot reduced. significant differences in its curriculum would take the course, file his or her versus the training required by § 91.161. training certificate away, and forget the C. Air Traffic Control The Special Awareness Training focuses training unless the pilot flies in the Approximately a dozen commenters on safe operating practices in the Washington, DC area routinely. In felt that pilot training would not work Washington, DC airspace while the contrast, one commenter urged the FAA to reduce incursions because the security training for operating in the to ensure that pilots who took the training does not address inadvertent FRZ focuses on pre-flight and flight Special Awareness Training prior to the errors made by air traffic controllers.

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The purpose of this rule is to ensure NATA expressed concern about of a new class of VFR airspace that is that pilots operating in the Washington, potential violations when a pilot cancels uncharted. In whole, these commenters DC area are familiar and trained in the instrument-flight-rule (IFR) operation in did not believe that the FAA’s reliance operating requirements. The FAA has non-emergency situations and proceeds on graphics in the training curriculum already conducted separate education under VFR for landing. NATA said that would be sufficient for the pilot for air traffic controllers at the Potomac this benefits both the pilot and over- community. They felt that the graphics Terminal Radar Approach Control burdened air traffic controllers. NATA and information provided by the FAA in Facility (TRACON). Additionally, the suggested that the FAA create an the NPRM and other material were of FAA is working to standardize exception for this type of situation. The poor quality or were too vague. These procedures for ATC. For example, air FAA recognizes that some pilots cancel deficiencies, argued some, made it traffic controllers are now directing their IFR clearances and proceed under difficult for pilots to plot the ‘‘training pilots not to change their transponder VFR for landing. However, pilots who zone’’ on their own. Additionally, some codes until after landing at the airport. wish to do so in the airspace covered by commenters said, general aviation this rule are required to take the Special aircraft do not have distance-measuring D. The FAA’s Enforcement Policy Awareness Training. equipment (DME) capable of receiving a Many commenters, including AOPA As discussed in the preamble of the VORTAC signal 100 NM away from the and HAI, said that the FAA’s zero- NPRM, the flight restrictions for the DCA VOR/DME. tolerance enforcement policy is not Washington, DC ADIZ and FRZ In response to these comments, the appropriate for essentially technical specifically exempt U.S. Department of FAA will add to the note on the errors by pilots who are otherwise Defense/U.S. military, law enforcement, Washington Sectional, Baltimore- following ADIZ procedures. AOPA and and approved aeromedical operations Washington Terminal Area Sectional, HAI, among others, suggested that the from certain requirements otherwise Baltimore-Washington Helicopter Route FAA is creating ‘‘another hook,’’ to get applicable to aircraft entering the ADIZ Sectional, and the CG–21 World pilots for inadvertent violations. and FRZ. (See FDC NOTAM 07/0206.) Aeronautical Chart about the training Another commenter said that the FAA’s These operations must be handled requirement for the Washington, DC enforcement policies do not take into differently because of their importance ADIZ and FRZ airspace, and will depict account normal human error. In to national security and safety and for the airspace within 60 NM of the DC addition, there was concern that the the public interest. These exceptions, VOR/DME to notify pilots about the training rule will ‘‘serve to criminalize proposed under § 91.161 (d), have been training requirements for pilots who general aviation.’’ retained in the final rule under § 91.161 operate under VFR in this airspace. The (e) ‘‘Exceptions.’’ The paragraph, FAA acknowledges that reducing the The FAA is requiring this training to however, has been modified by distance to 60 NM does not necessarily educate the pilot community on how to changing the term ‘‘aeromedical’’ to ‘‘air resolve the commenters’ concern that avoid making inadvertent incursions ambulance’’ to mirror current general aviation aircraft are not able to into the Washington, DC ADIZ out of terminology. An air ambulance is a part receive the DCA VOR/DME signal while concern for the pilot community and a 135 operator that has been issued still some distance from the DCA VOR/ desire to alleviate the burden on FAA operations specifications that authorize DME. However, the agency believes that and other governmental resources. the operator to perform air ambulance depicting the airspace on the Anything less than mandating the operations in either an airplane or a Washington Sectional, Baltimore- training program undermines the helicopter. (See FAA Order 8900.1, Washington Terminal Area Sectional, importance the agency places on this Volume 5, Chapter 5.) The exception for Baltimore-Washington Helicopter Route education. Any requirement, if not air ambulance operators does not extend Sectional, and the CG–21 World complied with, has the potential for an to other medically related flights, even Aeronautical Chart will assist pilots in associated enforcement action. if they are operated under a lifeguard identifying the training area. However, since the intent of this call sign. In addition, paragraph (e) has F. Educational Outreach requirement is to reduce the number of been reworded to associate the incursions, there should be fewer exceptions with the types of flights Several commenters questioned enforcement proceedings related to being performed rather than the persons whether the pilots who really need this inadvertent incursions. conducting the operations. The training will be aware of the Some commenters seemed to support paragraph now states that if a flight is requirement. They fear that only the FAA in its endeavor and even conducted in an aircraft of an air knowledgable, conscientious pilots who recommended that the FAA perform ambulance operator, the U.S. Armed already know about the ADIZ and either ramp checks to ensure that pilots took Forces, or a law enforcement agency, the avoid it or make an effort to comply will the Special Awareness Training course. requirements of § 91.161 do not apply. take the training, but others who are The FAA does not consider ramp checks The exception includes all operations, ignorant of the Washington, DC ADIZ the most efficient way to ensure that including repositioning aircraft and will be unaware of the requirement to be pilots have taken the Special Awareness training flights. trained. AOPA said that the FAA should Training or to enhance the education of have a plan for conducting aggressive pilots about flying in the Washington, E. Charting the Training Area educational outreach targeted at DC ADIZ. The agency will emphasize Many commenters, including NATA, addressing the most common types of safe operating practices for flying in the AOPA, and HAI, argued that the Special violations. Washington, DC area during flight Awareness Training zone be shown on The FAA publishes its regulations in reviews, practical tests, and the FAA- applicable FAA aeronautical charts. the Federal Register, which is official sponsored pilot proficiency awards Commenters felt that it was notification to the public. The FAA program (WINGS Program), which will unreasonable for the FAA to put a realizes, however, that many cover all active pilots. The FAA will regulation in place without physical individuals do not monitor the Federal continue to review the violation history representation on a chart. One Register. The agency therefore trends and modify the training where individual even commented that the maintains communication with aviation and when necessary. FAA’s actions amounted to the creation organizations who publicize FAA

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actions to their members through their possession, but would be required to codified regulation in 14 CFR, the FAA magazines, newsletters, and online Web provide it to a requesting official in a has determined that training is required sites. In fact, the FAA heard from one reasonable time period. This latter to safely fly in the Washington, DC area. commenter that he became aware of the provision raised concerns with at least III. Differences Between the NPRM and proposed rule through AOPA and the one commenter. That commenter the Final Rule Experimental Aircraft Association. For believed that if he were asked to present this particular final rule, the FAA also the certificate but he did not have it in The provisions proposed as new can rely on the NOTAM reporting his personal possession that a follow-up § 91.161 are adopted with the following system to be a regular reminder to pilots investigation would immediately modifications. that there is a training requirement follow. • All references in § 91.161 to ‘‘100 attached to operating in the Washington, The FAA notes that, because the nautical miles of the DCA VOR/DME’’ DC area. FDC NOTAMs 07/0206 and 07/ agency’s database identifies pilots (by have been changed to ‘‘60 nautical miles 0211 specifically reference the online pilot number) who complete the of the DCA VOR/DME;’’ training. It is a pilot’s responsibility to training, the agency would check the • Captions have been added to each be familiar with all pertinent NOTAMs, FAA Safety Database to verify a pilot’s lettered paragraph; so pilots, by meeting the requirement to claim that he or she completed the • Proposed paragraphs (b) through (d) check NOTAMs, will be aware that course. have been redesignated as (c) through training is required. I. The FAA’s Web Site (e); • New paragraph (b) has been added G. Impact on General Aviation Pilots One commenter pointed out that to describe the content of the Special Many commenters, including AOPA, Windows software is not free and Awareness Training and information believed that the training requirement suggested that the FAA make its Web about where the training can be would add an unnecessary burden on site accessible to other free and open- obtained; the general aviation (GA) community. source browsers. He said this will • The FAA recognizes the impact the enable Linux and Macintosh (Mac) users Paragraph (e) (proposed as (d)) has training requirement has on the GA to access the training regardless of been reworded as discussed in ‘‘II.D’’ community, but the agency has model and operating systems. The FAA above. minimized the burden. The course has designed the accessibility for taking IV. Paperwork Reduction Act requires little time and is offered free of this online training via the most cost. The FAA believes the online accessible system that is being used As required by the Paperwork training is the most economical means throughout the world. Most PC- and Reduction Act of 1995 (44 U.S.C. for pilots to receive training because, for Mac-based browsers will be able to 3507(d)), the FAA submitted a copy of most pilots, it can be performed in their access the site using Microsoft Internet the new (or amended) information own homes on their personal Explorer 5.5 or above. Internet Explorer collection requirement(s) in this final computers. Furthermore, in response to 6.0 or above is preferred. Internet rule to the Office of Management and concerns that the proposed training Explorer browsers can be downloaded Budget (OMB) for its review. Affected zone was too large, the FAA reduced the for free at: http://www.microsoft.com/ parties do not have to comply with the size of the airspace from 100 NM to 60 windows/ie/downloads/critical/ie6sp1/ information collection requirements NM from the DCA VOR/DME. default.asp. until the FAA publishes in the Federal As already discussed, the FAA has Another commenter said that not Register the control number assigned by reviewed the history of Washington, DC everyone has computers and that the OMB for these information ADIZ violations, and finds that it is GA FAA is 10 to 20 years ahead of itself. requirements. Publication of the control pilots who continue to make mistakes. The FAA considered that not everyone number notifies the public that OMB It is only proper that the training be owns a personal computer, although the has approved these information focused on these pilots in order to make number of pilots who may not have collection requirements under the them more aware that heightened access to their own personal computers Paperwork Reduction Act of 1995. security procedures exist in the and Internet is small. In addition, public A description of the annual burden is Washington, DC metropolitan area. libraries provide access to computers shown below. and the Internet. Thus, the FAA believes Description of Respondents: The FAA H. Certificate of Training Completion that establishing this training online is estimates that approximately 87,000 Under this final rule, each pilot who the most economical and efficient persons that fly under VFR within 60 is required to complete the training means to provide this training to the NM of the DCA VOR/DME will be course should print and maintain a pilot community. affected by the rule, and that the certificate of training completion (the population of affected persons will grow certificate can be downloaded from the J. Adopting a Training Requirement by approximately 0.14 percent per year. http://www.FAASafety.gov Web site). Based On a NOTAM Estimated Burden: The FAA assumes Upon request from an authorized AOPA expressed concern that that each person will spend a total of 1 representative of the FAA, an adopting the training rule while the hour (40 minutes taking the online authorized representative of the ‘‘Washington, DC Metropolitan Area training and 20 minutes taking the test), National Transportation Safety Board, Special Flight Rules Area’’ rulemaking at a cost of time of $31.50 per hour. any Federal, State, or local law action is pending suggests that the Based on that assumption, the first- enforcement officer, or an authorized codification of the NOTAM is year cost will be $2,740,500 ((87,000 representative of the Transportation preordained despite overwhelming persons × $31.50) × 1 hour), and time Security Administration, the pilot must objections. The FAA disagrees that spent during the first year would be present the certificate of training adopting the training rule suggests that 87,000 hours (87,000 persons × 1 hour). completion. The FAA further proposed codification of the Washington, DC The FAA estimates that in subsequent that a pilot did not have to necessarily NOTAMs is preordained. Whether the years (2009–2017), the per-year costs carry the certificate of completion airspace restrictions around will be $3,843 (122 persons × $31.50 per document in his or her personal Washington, DC exist via NOTAM or via 1 hour), and time spent during

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subsequent years would be 122 hours suggest readers seeking greater detail businesses, not-for-profit organizations (122 persons × 1 hour). read the full regulatory evaluation, a and small governmental jurisdictions. The total cost over 10 years is copy of which we have placed in the Agencies must perform a review to expected to be $2,775,087 ($2,740,500 + docket for this rulemaking. determine whether a proposed or final (9 × $3,843)), with an average cost per In conducting these analyses, FAA rule will have a significant economic year of $277,509 (($2,740,500 + (9 × has determined that this final rule: (1) impact on a substantial number of small $3,843)) ÷ 10). Has benefits that justify its costs, (2) is entities. If the agency determines that it The total number of hours over 10 not an economically ‘‘significant will, the agency must prepare a years is expected to be 88,098 hours regulatory action’’ as defined in section regulatory flexibility analysis as (87,000 + (9 × 122)), with an average 3(f) of Executive Order 12866, (3) is not described in the Act. number of hours per year of 8,809.80 ‘‘significant’’ as defined in DOT’s However, if an agency determines that hours ((87,000 + (9 × 122)) ÷ 10). Regulatory Policies and Procedures; (4) a proposed or final rule is not expected An agency may not collect or sponsor will not have a significant economic to have a significant economic impact the collection of information, nor may it impact on a substantial number of small on a substantial number of small impose an information collection entities; (5) will not create unnecessary entities, section 605(b) of the 1980 RFA requirement unless it displays a obstacles to the foreign commerce of the provides that the head of the agency currently valid Office of Management United States; and (6) will not impose may so certify and a regulatory and Budget (OMB) control number. an unfunded mandate on state, local, or flexibility analysis is not required. The V. International Compatibility tribal governments, or on the private certification must include a statement sector by exceeding the threshold providing the factual basis for this In keeping with U.S. obligations identified above. determination, and the reasoning should under the Convention on International be clear. Civil Aviation, it is FAA policy to Total Costs and Benefits of this Rule For the most part, this rule will comply with International Civil The FAA has determined that from impact only individual persons, who are Aviation Organization (ICAO) Standards 2008 to 2017, the total cost of the rule not considered as entities under RFA, and Recommended Practices to the will be approximately $2.78 million flying VFR within 60 NM of the DCA maximum extent practicable. The FAA ($2.77 million, discounted). The total VOR/DME. However, for the few small has determined that there are no ICAO derives from the cost of requiring pilots entities that could be impacted by this Standards and Recommended Practices who fly under VFR within a 60-NM rule, the additional costs are negligible. that correspond to these regulations. radius from the DCA VOR/DME to take The FAA estimates that the training VI. Regulatory Evaluation, Regulatory the training. If the rule were 100% requires only an hour of a pilot’s time Flexibility Determination, International effective in reducing the number of (estimated at a cost of time of about $32) Trade Impact Assessment, and unauthorized flights into the and there is no charge for the training. Unfunded Mandates Assessment Washington DC, Metropolitan Area Therefore, as the Acting FAA ADIZ, the potential benefits of the rule Administrator, I certify that this rule Changes to Federal regulations must over 10 years would be approximately will not have a significant economic undergo several economic analyses. $35.7 million ($26.8 million, impact on a substantial number of small First, Executive Order 12866 directs that discounted). The FAA recognizes that a entities. each Federal agency shall propose or 100% rate is unrealistic because there is adopt a regulation only upon a reasoned no way to predict the effectiveness of International Trade Impact Statement determination that the benefits of the the rule. However, the FAA needs only The Trade Agreements Act of 1979 intended regulation justify its costs. a 10% success rate in reducing the prohibits Federal agencies from Second, the Regulatory Flexibility Act number of incursions, resulting in engaging in any standards or related of 1980 (Pub. L. 96–354) requires benefits of approximately $2.7 million, activities that create unnecessary agencies to analyze the economic for this rule to be cost-beneficial. obstacles to the foreign commerce of the impact of regulatory changes on small The FAA notes the aviation United States. Legitimate domestic entities. Third, the Trade Agreements community would receive training at no objectives, such as safety, are not Act (Pub. L. 96–39) prohibits agencies direct monetary cost. Also, this analysis considered unnecessary obstacles. The from setting standards that create does not calculate the benefit of statute also requires consideration of unnecessary obstacles to the foreign avoiding the use of force against aircraft international standards and where commerce of the United States. In that improperly enter the Washington, appropriate, that they be the basis for developing U.S. standards, this Trade DC, ADIZ or FRZ. U.S. standards. The FAA has assessed Act requires agencies to consider the potential effect of this final rule and Regulatory Flexibility Determination international standards and, where has determined that it primarily will appropriate, that they be the basis of The Regulatory Flexibility Act of 1980 have an impact on domestic operations, U.S. standards. Fourth, the Unfunded (RFA) establishes ‘‘as a principle of although it could affect some Mandates Reform Act of 1995 (Pub. L. regulatory issuance that agencies shall international pilots. For example, there 104–4) requires agencies to prepare a endeavor, consistent with the objective could be some Canadian pilots affected written assessment of the costs, benefits, of the rule and of applicable statutes, to when they fly between Canada and the and other effects of proposed or final fit regulatory and informational Southern United States. However, this rules that include a Federal mandate requirements to the scale of the rulemaking will have negligible impact likely to result in the expenditure by businesses, organizations, and on foreign firms that provide goods or State, local, or tribal governments, in the governmental jurisdictions subject to services in the United States. aggregate, or by the private sector, of regulation.’’ To achieve that principle, $100 million or more annually (adjusted the RFA requires agencies to solicit and Unfunded Mandates Assessment for inflation with base year of 1995). consider flexible regulatory proposals The Unfunded Mandates Reform Act This portion of the preamble and to explain the rationale for their of 1995 (the Act) is intended, among summarizes the FAA’s analysis of the actions. The RFA covers a wide-range of other things, to curb the practice of economic impacts of this final rule. We small entities, including small imposing unfunded Federal mandates

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on State, local, and tribal governments. 1. Searching the Federal eRulemaking 46507, 47122, 47508, 47528–47531, articles Title II of the Act requires each Federal Portal (http://www.regulations.gov); 12 and 29 of the Convention on International agency to prepare a written statement 2. Visiting the FAA’s Regulations and Civil Aviation (61 Stat. 1180). assessing the effects of any Federal Policies Web page at http:// mandate in a proposed or final agency www.faa.gov/regulations_policies/; or I 2. Add § 91.161 to read as follows: 3. Accessing the Government Printing rule that may result in an expenditure § 91.161 Special awareness training of $100 million or more (adjusted Office’s Web page at http:// required for pilots flying under visual flight annually for inflation) in any one year www.gpoaccess.gov/fr/index.html. rules within a 60-nautical mile radius of the by State, local, and tribal governments, You can also get a copy by sending a Washington, DC VOR/DME. in the aggregate, or by the private sector; request to the Federal Aviation such a mandate is deemed to be a Administration, Office of Rulemaking, (a) Operations within a 60-nautical ‘‘significant regulatory action.’’ The ARM–1, 800 Independence Avenue, mile radius of the Washington, DC VOR/ FAA currently uses an inflation- SW., Washington, DC 20591, or by DME under visual flight rules (VFR). adjusted value of $136.1 million in lieu calling (202) 267–9680. Make sure to Except as provided under paragraph (e) of $100 million. identify the amendment number or of this section, no person may serve as This final rule does not contain such docket number of this rulemaking. a pilot in command or as second in a mandate. The requirements of Title II Anyone is able to search the command of an aircraft while flying do not apply. electronic form of all comments within a 60-nautical mile radius of the received into any of our dockets by the DCA VOR/DME, under VFR, unless that VII. Executive Order 13132, Federalism name of the individual submitting the pilot has completed Special Awareness The FAA has analyzed this final rule comment (or signing the comment, if Training and holds a certificate of under the principles and criteria of submitted on behalf of an association, training completion. Executive Order 13132, Federalism. The business, labor union, etc.). You may (b) Special Awareness Training. The FAA has determined that this action review DOT’s complete Privacy Act will not have a substantial direct effect Special Awareness Training consists of statement in the Federal Register information to educate pilots about the on the States, or the relationship published on April 11, 2000 (Volume between the national Government and procedures for flying in the Washington, 65, Number 70; Pages 19477–78) or you DC area and, more generally, in other the States, or on the distribution of may visit http://dms.dot.gov. power and responsibilities among the types of special use airspace. This free various levels of government, and, XI. Small Business Regulatory training is available on the FAA’s Web therefore, does not have federalism Enforcement Fairness Act site. Upon completion of the training, implications. The Small Business Regulatory each person will need to print out a copy of the certificate of training VIII. Environmental Analysis Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with completion. FAA Order 1050.1E identifies FAA small entity requests for information or (c) Inspection of certificate of training actions that are categorically excluded advice about compliance with statutes completion. Each person who holds a from preparation of an environmental and regulations within its jurisdiction. If certificate for completing the Special assessment or environmental impact you are a small entity and you have a Awareness Training must present it for statement under the National question regarding this document, you inspection upon request from: Environmental Policy Act in the may contact your local FAA official, or absence of extraordinary circumstances. (1) An authorized representative of the person listed under FOR FURTHER the FAA; The FAA has determined this INFORMATION CONTACT at the beginning of rulemaking action qualifies for the the preamble. You can find out more (2) An authorized representative of categorical exclusion identified in about SBREFA on the Internet at the National Transportation Safety paragraph 312f and involves no http://www.faa.gov/ Board; extraordinary circumstances. regulations_policies/rulemaking/ (3) Any Federal, State, or local law _ IX. Regulations That Significantly sbre act/. enforcement officer; or Affect Energy Supply, Distribution, or List of Subjects in 14 CFR Part 91 (4) An authorized representative of Use the Transportation Security Air traffic control, Aircraft, Airmen, The FAA has analyzed this final rule Airports, Aviation safety, Noise control, Administration. under Executive Order 13211, Actions Reporting and recordkeeping (d) Emergency declared. The failure to Concerning Regulations that requirements. complete the Special Awareness Significantly Affect Energy Supply, Training course on flying in and around Distribution, or Use (May 18, 2001). The The Amendment the Washington, DC Metropolitan Area FAA has determined that it is not a I In consideration of the foregoing, the is not a violation of this section if an ‘‘significant energy action’’ under the Federal Aviation Administration emergency is declared by the pilot, as executive order because it is not a amends chapter I of title 14, Code of described under § 91.3(b), or there was ‘‘significant regulatory action’’ under Federal Regulations as follows: a failure of two-way radio Executive Order 12866, and it is not communications when operating under likely to have a significant adverse effect PART 91—GENERAL OPERATING AND IFR as described under § 91.185. on the supply, distribution, or use of FLIGHT RULES energy. (e) Exceptions. The requirements of I 1. The authority citation for part 91 this section do not apply if the flight is X. Availability of Rulemaking continues to read as follows: being performed in an aircraft of an air Documents Authority: 49 U.S.C. 106(g), 1155, 40103, ambulance operator certificated to You can get an electronic copy of 40113, 40120, 44101, 44111, 44701, 44704, conduct part 135 operations under this rulemaking documents using the 44709, 44711, 44712, 44715, 44716, 44717, chapter, the U.S. Armed Forces, or a law Internet by— 44722, 46306, 46315, 46316, 46504, 46506– enforcement agency.

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Issued in Washington, DC on August 5, regulation of surface coal mining and public comment period and provided an 2008. reclamation operations on non-Federal opportunity for a public hearing or Robert A. Sturgell, and non-Indian lands within its borders meeting on the amendment’s adequacy Acting Administrator. by demonstrating that its State program (Administrative Record No. OSM–2007– [FR Doc. E8–18619 Filed 8–11–08; 8:45 am] includes, among other things, ‘‘a State 0014–0001). We did not hold a public BILLING CODE 4910–13–P law which provides for the regulation of hearing or meeting because no one surface coal mining and reclamation requested one. The public comment operations in accordance with the period ended on November 21, 2007. DEPARTMENT OF THE INTERIOR requirements of this Act * * *; and We received comments from two rules and regulations consistent with Federal agencies and one private Office of Surface Mining Reclamation regulations issued by the Secretary citizen. and Enforcement pursuant to this Act.’’ See 30 U.S.C. 1253(a)(1) and (7). On the basis of these III. OSM’s Findings 30 CFR Part 944 criteria, the Secretary of the Interior The following are our findings conditionally approved the Utah concerning the amendment under [SATS No. UT–044–FOR; Docket ID: OSM– program on January 21, 1981. You can SMCRA and the Federal regulations at 2007–0014] find background information on the 30 CFR 732.15 and 732.17. We are Utah Regulatory Program Utah program, including the Secretary’s approving the amendment. findings, the disposition of comments, A. Utah proposes to amend UCA 40–10– AGENCY: and conditions of approval of the Utah Office of Surface Mining 10(2)(d) to read: Reclamation and Enforcement, Interior. program in the January 21, 1981, ACTION: Final rule; approval of Federal Register (46 FR 5899). You can 40–10–10(2)(d)(i) A permit application amendment. also find later actions concerning Utah’s will also include the following information: program and program amendments at 30 (A) the result of test borings or core SUMMARY: We are approving an CFR 944.15, 944.20, 944.25 and 944.30. samples from the permit area, including logs of the drill holes; amendment to the Utah regulatory II. Submission of the Proposed (B) the thickness of the coal seam found; program (the Utah program) under the Amendment (C) an analysis of the chemical properties Surface Mining Control and of the coal; Reclamation Act of 1977 (SMCRA or the By letter dated August 31, 2007, Utah (D) the sulfur content of any coal seam; Act). Utah proposed revisions to its sent us an amendment to its program (E) chemical analysis of potentially acid or statute and rules regarding permit (Administrative Record No. 1 OSM– toxic-forming sections of the overburden; and application requirements which may be 2007–0014–0004 & OSM–2007–0014– (F) chemical analysis of the stratum lying waived with a written determination 0005) under SMCRA (30 U.S.C. 1201 et immediately underneath the coal to be that they are unnecessary by the seq.). Utah sent the amendment in mined. response to concern letters sent by OSM (ii) Application requirements of Subsection Division of Oil Gas and Mining (the (2)(d)(i) may be waived by the division if Division), permit applications being regarding changes proposed under UT– 042–FOR (Administrative Record No. there is a written determination that these filed in a local public office for public requirements are unnecessary. inspection, and extensions to permitted UT–1181 dated February 21, 2003) and Utah proposes to revise its statute at area being processed as significant UT–043–FOR (Administrative Record UCA 40–10–10(2)(d) to include revisions or applications for new No. UT–1193 informal concern letter recodification and language changes permits. Utah is revising its program to dated February 14, 2006), and to include that are intended to increase be consistent with the corresponding changes made at its own initiative. accessibility and readability, limit the Federal regulations and SMCRA, clarify Concerns regarding section 40–10– requirements to permit applications ambiguities, and improve operational 10(2)(d) of the Utah Code Annotated rather than permit applications and efficiency. This amendment package (UCA) and UCA 40–10–10(5) as reclamation plans, and clarify which contains changes proposed previously submitted under UT–042–FOR are permit application requirements may be under UT–042–FOR and UT–043–FOR. addressed here and the remainder of the UT–042–FOR package is being waived with a written determination by DATES: Effective Date: August 12, 2008. processed through a separate Federal the Department that they are FOR FURTHER INFORMATION CONTACT: Register notice. Utah formally withdrew unnecessary. James F. Fulton, Chief, Denver Field the amendment to Administrative Rule UCA 40–10–10(2)(d) is being Division, Office of Surface Mining R645–303–222 proposed under UT– recodified as UCA 40–10–10(2)(d)(i)(A) Reclamation and Enforcement, 1999 043–FOR in a letter dated February 16, through (F), and (ii). This proposed Broadway, suite 3320, Denver, CO 2006 (Administrative Record No. UT– change will increase accessibility and 80202–5733, Telephone: (303) 844– 1194), and we approved the remainder readability of the section by identifying 1400, extension 1424, E-mail: of that amendment package on June 8, each requirement set forth in a separate [email protected]. 2006 (71 FR 33249; Administrative subsection rather than having all SUPPLEMENTARY INFORMATION: Record No. UT–1195). requirements stated in one sentence. We announced receipt of this The recodification and minor language I. Background on the Utah Program proposed amendment in the October 22, changes necessary to create separate II. Submission of the Proposed Amendment sentences do not change the meaning or III. Office of Surface Mining Reclamation and 2007, Federal Register (72 FR 59489). In Enforcement’s (OSM’s) Findings the same document, we opened the effectiveness of this provision. IV. Summary and Disposition of Comments The proposed language change at V. OSM’s Decision 1 This final rule notice contains references to UCA 40–10–10(2)(d)(i) will replace the VI. Procedural Determinations documents assigned Administrative Record phrase ‘‘A statement of’’ with ‘‘A permit numbers through our old record system and those application will also include the I. Background on the Utah Program assigned through the new regulations.gov system. OSM is transitioning to regulations.gov and all following’’. This change has the effect of Section 503(a) of the Act permits a administrative record numbers will be assigned limiting the requirements set forth State to assume primacy for the through this system in the future. under 40–10–10(2)(d) to only permit

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applications. The remainder of UCA 40– and the physical and chemical contains the same language. Additional 10–10(2) applies to both permit characteristics of the coal, overburden, proposed changes are minor editorial applications and reclamation plans. and the stratum underlying the coal. revisions that are intended to improve Reclamation plans must always be This interpretation is inconsistent with readability and do not alter the submitted as part of permit applications Federal requirements under SMCRA provision’s meaning or effectiveness. under State and Federal law. Utah’s and was raised as a concern in a letter For these reasons, we find the provision reclamation plan requirements are from OSM to Utah on February 21, 2003 to be no less stringent than SMCRA and included in but not limited to UCA 40– (Administrative Record No. UT–1180). we approve Utah’s proposed changes. 10–10 and Administrative Rules R645– This addition in UT–044–FOR clarifies C. Utah proposes to amend UCA 40–10– 301–240, R645–301–340, R645–301– the ambiguity and specifically defines 12(1)(c) to read: 540, and R645–301–550. which informational requirements may The Federal counterpart language at be waived with a written finding by UCA 40–10–12(1)(e) Any extensions to the SMCRA section 507(b)(15) contains the Utah that they are unnecessary. It is also area covered by the permit, except incidental same requirements for permit consistent with counterpart section boundary revisions, must be made by: applications only. Specific reclamation (i) An application for a significant revision 507(b)(15) of SMCRA. of the permit; or plan requirements are set forth under The final change to this provision (ii) An application for another permit. SMCRA section 508 and 30 CFR parts replaces the phrase ‘‘with respect to the 780 and 784. specific application by’’ with ‘‘if there Utah proposes to change the way Utah Administrative Rule R645–300– is’’ (a written determination * * *). extensions to area covered by a permit 133.710 requires the applicant to This change is intended to increase the are made from exclusively requiring an demonstrate that reclamation as readability of the provision by writing application for another permit to either requiring an application for a significant required by the Program can be in plain language without altering the permit revision or an application for accomplished according to information provision’s meaning. Moreover, we another permit. By changing this statute, given in the permit application. interpret this provision to mean that Utah has addressed our concerns raised Informational requirements set forth written determinations to waive in the February 14, 2006 concern letter under UCA 40–10–10(2)(d) will be application requirements will be made (Administrative Record No. UT–1193). considered in the reclamation plan by on a case-by-case basis. This With this statute change, Utah is now inclusion in the permit application. interpretation was confirmed with Utah able to amend the implementing Both Federal and State laws require on December 3, 2007 (Administrative Administrative Rule R645–303–222 the operator to demonstrate to the record No. OSM–2007–0014–0010). We originally proposed on November 28, satisfaction of the regulatory authority approve the change with this that reclamation can be accomplished in 2005 (SATS No UT–043–FOR; understanding. Administrative Record No. UT–1181) the area proposed for mining. With the For the reasons discussed above, we and formally withdrawn February 16, proposed change, UCA 40–10–10(2)(d) find that Utah’s proposed revisions to 2006 (Administrative Record No. UT– is substantively identical to its Federal UCA 40–10–10(2)(d) are in accordance 1194). This rule change has been counterpart, SMCRA section 507(b)(15). with and no less stringent than SMCRA. We find this change to be no less resubmitted and is discussed below in stringent than SMCRA. B. Utah proposes to amend UCA 40–10– Finding III(D). The addition of the reference to 10(5) to read: Section 511 of SMCRA requires that extensions to an area covered under a ‘‘(2)(d)(i)’’ in subsection (2)(d)(ii) has the 40–10–10(5) An applicant for a surface effect of limiting the requirements coal mining and reclamation permit shall file permit be made through applications for which may be waived by Utah with a a copy of the application for public new permits. Significant permit written determination that they are inspection with the county clerk of the revisions and new permit applications unnecessary. With the proposed county, or an appropriate public office have the same information and public addition, both State and corresponding approved by the division where the mining notice requirements. The fundamental Federal provisions at SMCRA section is proposed to occur, except for information difference between significant permit 507(b)(15) call for but allow the pertaining to the coal seam itself. revisions and applications for new regulatory authority to waive the Utah previously proposed changes to permits is the amount of time Utah has requirements for reports on test borings its statute at UCA 40–10–10(5) (October to process the application. Significant or core samplings from the permit area 22, 2002 Administrative Record No. permit revisions are processed in 120 including logs of the drill holes; UT–1171; processed under SATS No. days as opposed to applications for new thickness of the coal seam found; an UT–042–FOR) including deletion of the permits which are processed in 360 analysis of the chemical properties of term ‘‘for public inspection’’ from the days. Because the information and the coal; the sulfur content of any coal provision. This raised a concern in that public notice requirements for seam; chemical analysis of potential the proposed deletion would remove the significant permit revisions are the same acid or toxic forming sections of the provision’s purpose of making permit as for new permits, we find this rule overburden; and chemical analysis of applications available for public change to be no less stringent than the stratum lying immediately inspection near the area where mining SMCRA. We approve this change. underneath the coal to be mined. is proposed to occur. A concern letter D. Utah proposes to amend In amendment UT–042–FOR, Utah was sent by OSM to Utah February 21, Administrative Rule R645–303–222 to proposed a provision under which it 2003 (Administrative Record No. UT– read: could waive the information required in 1180) and we never formally approved paragraph (2) rather than restricting this the proposed changes. R645–303–222. The operator will obtain waiver to (2)(d)(i). This interpretation The current amendment to UCA 40– approval of a permit change by making would allow Utah to waive the required 10–10(5) resubmits the other minor application in accordance with 645–303–220 for changes in the method of conduct of information pertaining to ownership, editorial changes to the statute while mining or reclamation operations or in the maps and plans, hydrology and retaining the phrase ‘‘for public conditions authorized or required under the probable hydrologic consequences, as inspection’’. The provision’s Federal approved permit; provided, however, that well as the test borings, core samples, counterpart at SMCRA section 507(e) any extensions to the approved permit area,

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except for Incidental Boundary Changes, process them as new permit SMCRA requires that the State’s must be processed and approved using the applications. Utah’s existing rule at program demonstrates that the State has procedural requirements of R645–303–226. R645–300–131.111.1 requires it to the capability of carrying out the Proposed Utah Administrative Rule process significant permit revisions provisions of the Act and meeting its R645–303–222 would allow Utah to within 120 days, and such revisions purposes. Making this regulation process and approve permit area must meet the same requirements as effective immediately will expedite that extensions (except incidental boundary new permit applications as noted above. process. SMCRA requires consistency of changes, or IBCs) using procedures for The State may choose to impose on State and Federal standards. significant permit revisions at R645– itself the same 120-day deadline for Effect of OSM’s Decision 303–226 instead of new permit permit area extensions. This aspect of procedures. The proposed rule the change does not make the proposed Section 503 of SMCRA provides that implements changes to UCA § 40–10– rule less effective than or inconsistent a State may not exercise jurisdiction 12(1)(c), which require ‘‘[a]ny with the Federal regulation or less under SMCRA unless the State program extensions to the area covered by the stringent than or not in accordance with is approved by the Secretary. Similarly, permit, except incidental boundary SMCRA. For the reasons discussed 30 CFR 732.17(a) requires that any revisions must be made by: (i) an above, we approve these changes. change of an approved State program be application for a significant revision of submitted to OSM for review as a IV. Summary and Disposition of the permit; or (ii) an application for program amendment. Federal Comments another permit.’’ regulations at 30 CFR 732.17(g) prohibit The proposed rule appears, on its Public Comments any changes to approved State programs that are not approved by OSM. In the face, to be less effective than the We asked for public comments on this oversight of the Utah program, we will counterpart Federal regulation at 30 amendment (Administrative Record No. recognize only the statutes, regulations CFR 774.13(d) which requires OSM–2007–0014–0001). Three and other materials we have approved, extensions to the area covered by the nonsubstantive comments were together with any consistent permit, except incidental boundary received; two from Federal agencies and implementing policies, directives and revisions, to be made by an application one from a private citizen. for a new permit. However, a review of other materials. We will require Utah to Utah’s referenced rules shows Federal Agency Comments enforce only those approved provisions. otherwise. SMCRA and the Federal Under 30 CFR 732.17(h)(11)(i) and VI. Procedural Determinations regulations require such permit section 503(b) of SMCRA, we requested extensions to be processed as new comments on the amendment from Executive Order 12630—Takings permit applications. Referenced Utah various Federal agencies with an actual This rule does not have takings Administrative Rule R645–303–226 or potential interest in the Utah program implications. This determination is requires Utah to review and process (Administrative Record No. OSM–2007– based on the analysis performed for the significant permit revisions, and as 0014–0008). counterpart Federal regulation. proposed, permit extensions, in On September 21, 2007 we received a Executive Order 12866—Regulatory accordance with the requirements of letter from the Natural Resource Planning and Review Utah Administrative Rules R645–300– Conservation Service dated September 100 and R645–300–200 and the 17, 2007 (Administrative Record No. This rule is exempted from review by information requirements of R645–301 OSM–2007–0014–0002) declining to the Office of Management and Budget and R645–302. The requirements of comment on this amendment. (OMB) under Executive Order 12866 those rules also apply to new permits. On October 26, 2007 a representative (Regulatory Planning and Review). By imposing the requirements of from EPA Region 8 contacted OSM via R645–300–100, R645–300–200, R645– Executive Order 12988—Civil Justice telephone and stated that the EPA has Reform 301, and R645–302 on significant permit no substantive comments on this revisions, the proposed rule would amendment (Administrative Record No. The Department of the Interior has subject extensions to the permit area, OSM–2007–0014–0009). conducted the reviews required by when processed and reviewed as section 3 of Executive Order 12988 and significant permit revisions, to the same Private Citizen Comment has determined that this rule meets the requirements as new permits except for On October 23, 2007 we received a applicable standards of subsections (a) a shorter review period. This is true citizen comment stating that the and (b) of that section. However, these notwithstanding the obvious difference amendment is ‘‘interesting’’ standards are not applicable to the between the plain wording of the (Administrative Record No. OSM–2007– actual language of State regulatory proposed rule and the provisions of 0014–0003). While we agree, we programs and program amendments SMCRA and the Federal regulations. consider this to be a nonsubstantive because each program is drafted and This proposed change is not comment that does not require further promulgated by a specific State, not by inconsistent with the counterpart response. OSM. Under sections 503 and 505 of Federal regulation and is in accordance SMCRA (30 U.S.C. 1253 and 1255) and with SMCRA. V. OSM’s Decision the Federal regulations at 30 CFR The proposed rule would require Based on the above findings, we 730.11, 732.15, and 732.17(h)(10), Utah to process applications for permit approve Utah’s August 31, 2007 decisions on proposed State regulatory area extensions (except IBC’s) within amendment. programs and program amendments 120 days of receipt of a complete To implement this decision, we are submitted by the States must be based application (same as for significant amending the Federal regulations at 30 solely on a determination of whether the permit revisions). That would reduce CFR part 944, which codify decisions submittal is consistent with SMCRA and Utah’s review and processing time for concerning the Utah program. We find its implementing Federal regulations such permit area extensions by 67 that good cause exists under 5 U.S.C. and whether the other requirements of percent compared to the existing 1-year 553(d)(3) to make this final rule 30 CFR parts 730, 731, and 732 have period it has under the current rules to effective immediately. Section 503(a) of been met.

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Executive Order 13132—Federalism of energy, a Statement of Energy Effects local government agencies, or This rule does not have Federalism is not required. geographic regions. c. Does not have significant adverse implications. SMCRA delineates the National Environmental Policy Act roles of the Federal and State effects on competition, employment, governments with regard to the This rule does not require an investment, productivity, innovation, or regulation of surface coal mining and environmental impact statement the ability of U.S. based enterprises to reclamation operations. One of the because section 702(d) of SMCRA (30 compete with foreign-based enterprises. purposes of SMCRA is to ‘‘establish a CFR U.S.C. 1292(d)) provides that This determination is based upon the nationwide program to protect society agency decisions on proposed State fact that the State submittal which is the and the environment from the adverse regulatory program provisions do not subject of this rule is based upon effects of surface coal mining constitute major Federal actions within counterpart Federal regulations for operations.’’ Section 503(a)(1) of the meaning of section 102(2)(C) of the which an analysis was prepared and a SMCRA requires that State laws National Environmental Policy Act (42 determination made that the Federal regulating surface coal mining and U.S.C. 4332(2)(C) et seq). regulation was not considered a major rule. reclamation operations be ‘‘in Paperwork Reduction Act accordance with’’ the requirements of Unfunded Mandates SMCRA, and section 503(a)(7) requires This rule does not contain that State programs contain rules and information collection requirements that This rule will not impose an regulations ‘‘consistent with’’ require approval by OMB under the unfunded mandate on State, local, or regulations issued by the Secretary Paperwork Reduction Act (44 U.S.C. tribal governments or the private sector pursuant to SMCRA. 3501 et seq.). of $100 million or more in any given year. This determination is based upon Executive Order 13175—Consultation Regulatory Flexibility Act the fact that the State submittal, which and Coordination With Indian Tribal is the subject of this rule, is based upon Governments The Department of the Interior certifies that this rule will not have a counterpart Federal regulations for In accordance with Executive Order significant economic impact on a which an analysis was prepared and a 13175, we have evaluated the potential substantial number of small entities determination made that the federal effects of this rule on Federally under the Regulatory Flexibility Act (5 regulation did not impose an unfunded recognized Indian Tribes and have U.S.C. 601 et seq.). The State submittal, mandate. determined that the rule does not have which is the subject of this rule, is based List of Subjects in 30 CFR Part 944 substantial direct effects on one or more upon counterpart Federal regulations for Indian Tribes, on the relationship which an economic analysis was Intergovernmental relations, Surface between the Federal government and prepared and certification made that mining, Underground mining. Indian Tribes, or on the distribution of such regulations would not have a Dated: July 21, 2008. power and responsibilities between the significant economic effect upon a Allen D. Klein, Federal government and Indian Tribes. substantial number of small entities. In Regional Director, Western Region. The rule does not involve or affect making the determination as to whether Indian Tribes in any way. I For the reasons set out in the this rule would have a significant preamble, 30 CFR part 944 is amended Executive Order 13211—Regulations economic impact, the Department relied as set forth below: That Significantly Affect The Supply, upon the data and assumptions for the Distribution, or Use of Energy counterpart Federal regulations. PART 944—UTAH On May 18, 2001, the President issued Small Business Regulatory Enforcement I 1. The authority citation for part 944 Executive Order 13211 which requires Fairness Act continues to read as follows: agencies to prepare a Statement of Energy Effects for a rule that is (1) This rule is not a major rule under 5 Authority: 30 U.S.C. 1201 et seq. U.S.C. 804(2), of the Small Business considered significant under Executive I 2. Section 944.15 is amended in the Order 12866, and (2) likely to have a Regulatory Enforcement Fairness Act. This rule: table by adding a new entry in significant adverse effect on the supply, chronological order by ‘‘Date of Final a. Does not have an annual effect on distribution, or use of energy. Because Publication’’ to read as follows: this rule is exempt from review under the economy of $100 million. Executive Order 12866 and is not b. Will not cause a major increase in § 944.15 Approval of Utah regulatory expected to have a significant adverse costs or prices for consumers, program amendments. effect on the supply, distribution, or use individual industries, Federal, State, or * * * * *

Original amendment submission date Date of final publication Citation/description

****** August 31, 2007 ...... August 12, 2008 ...... Utah Code Annotated 40–10–10(2)(d), (5), 40–10–12(1)(e). Utah Admin R 645–303–222.

[FR Doc. E8–18496 Filed 8–11–08; 8:45 am] BILLING CODE 4310–05–P

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DEPARTMENT OF DEFENSE 55930). This demonstration was phrase ‘‘the lower of the billed amount conducted under the authority of 10 or the applicable balance billing limit Office of the Secretary U.S.C. 1092. In this demonstration under paragraph (j)(l)(i)(C) of this [DoD–2006–OS–0091; RIN 0720–AB00] project, DoD addressed unreasonable section, less the applicable beneficiary impediments to the continuity of health cost share.’’ The correct phrase to 32 CFR Part 199 care encountered by certain family describe the allowable charge members of Reservists and National authorized for non-participating TRICARE; Reserve and Guard Family Guard called to active duty in support providers is ‘‘the CMAC level as Member Benefits of a federal contingency operation for established in paragraph (j)(l)(i)(B) of more than 30 days. this section plus any balance billing AGENCY: Office of the Secretary, DoD. On November 12, 2003, DoD amount up to the balance billing limit ACTION: Final rule. published a notice (68 FR 64087) to as referred to in paragraph (j)(l)(i)(C) of extend through October 31, 2004, the this section.’’ This phrase, which is SUMMARY: This final rule implements demonstration project which was more consistent with the statutory sections 704 and 705 of the Ronald W. scheduled to end on November 1, 2003. language, is used in this final rule. Reagan National Defense Authorization On October 1, 2004, the DoD Act for Fiscal Year 2005. These published another notice (69 FR 58895) II. Permanent Benefits Offered To provisions apply to eligible family extending the demonstration project, Reserve Component Families members who become eligible for previously scheduled to end on October A. Waiver of deductible (paragraph TRICARE as a result of their Reserve 31, 2004, to October 31, 2005. 199.4(f)(2)(i)(H)). Eligible family Component (RC) sponsor (including On October 12, 2005, DoD published members of RC sponsors called or those with delayed effective date orders a notice (70 FR 59320) to extend the ordered to active duty for more than 30 up to 90 days) being called or ordered demonstration project, previously days in support of a federal contingency to active duty for more than 30 days in scheduled to end on October 31, 2005, operation, who choose to participate in support of a federal/contingency to October 31, 2007. TRICARE Standard, may not be operation and choose to participate in On June 19, 2007, the Department responsible for paying the annual TRICARE Standard or Extra, rather than published a notice (72 FR 33742) to TRICARE Standard deductible. By law, enroll in TRICARE Prime. The first extend the demonstration through the TRICARE Standard deductible for provision gives the Secretary the October 31, 2008. active duty family members is $150 per authority to waive the annual TRICARE On April 18, 2008, the Department individual, $300 per family ($50/$100 Standard (or Extra) deductible, which is published a notice (73 FR 21120) to for E–4s and below) each fiscal year. set by law (10 U.S.C. 1079(b)) at $150 extend the demonstration through Exercise of the authority to waive this per individual and $300 per family October 31, 2009. annual deductible appropriately limits ($50/$100 for families of members in The continued deployment of RC out-of-pocket expenses for many pay grades E–4 and below). The second members in support of Operation Noble Reserve and Guard family members, in provision gives the Secretary the Eagle/Operation Enduring Freedom and consideration of the fact that many may authority to increase TRICARE Operation Iraqi Freedom warrants have already paid annual deductibles payments up to 115 percent of the making permanent the Secretary’s under their civilian health plan. TRICARE maximum allowable charge, authority to exercise certain B. Increased payment to providers less the applicable patient cost share if components of this demonstration (paragraph 199.14(j)). Executive not previously waived under the first project. Sections 704 and 705 of the authority contained in this program provision, for covered inpatient and Ronald W. Reagan National Defense allows an increase in TRICARE outpatient health services received from Authorization Act for Fiscal Year 2005 payments up to 115 percent of the a provider that does not participate provide DoD authority to make two TRICARE maximum allowable charge, (accept assignment) with TRICARE. components of the demonstration less the applicable patient cost share if These provisions help ensure timely project permanent and amend section not previously waived under the first access to health care and maintain 1095d(a) and section 1079(h) of Title 10, provision, for inpatient and outpatient clinically appropriate continuity of United States Code, as appropriate. In care received from a provider that does health care to family members of accordance with these two statutory not participate (accept assignment) Reservists and Guardsmen activated in provisions, DoD is implementing this under TRICARE. This helps Reserve and support of a federal/contingency discretionary authority. Guard family members to be able to operation; limit the out-of-pocket health B. Public Comments. The proposed continue to see civilian providers with care expenses for those family members; rule was published in the Federal whom they have established relations and remove potential barriers to health Register on August 22, 2006 (71 FR and promotes access and clinically care access by Guard and Reserve 48864). We received no public appropriate continuity of care. families. comments. The final rule is consistent with the proposed rule, with the III. Regulatory Procedures DATES: Effective Date: August 12, 2008. exception of two technical corrections. Executive Order 12866 requires FOR FURTHER INFORMATION CONTACT: Jody In the proposed rule, the family certain regulatory assessments for any W. Donehoo, TRICARE Policy and deductible for E–4s and below was significant regulatory action that results Operations, TRICARE Management stated as $150. That amount is incorrect. in an annual effect on the economy of Activity, telephone (703) 681–0039. Under 10 U.S.C. 1079(b)(3), the family $100 million or more. The SUPPLEMENTARY INFORMATION: deductible for dependents of E–4s and Congressional Review Act establishes below is $100. The correct amount is certain procedures for major rules, I. Introduction and Background reflected in this final rule. defined as those with similar major A. On November 5, 2001, the Also, in the proposed rule, the impacts. The Regulatory Flexibility Act Department of Defense (DoD) published allowable charge authorized for non- (RFA) requires that each Federal agency notice of a nationwide TRICARE participating providers was described prepare, and make available for public Demonstration Project (66 FR 55928– incorrectly. The proposed rule used the comment, a regulatory flexibility

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analysis when the agency issues a (2) * * * DEPARTMENT OF HOMELAND regulation that has significant impact on (i) * * * SECURITY a substantial number of small entities. This final rule does not have an annual (H) The Director, TRICARE Federal Emergency Management effect on the economy of $100 million Management Activity, may waive the Agency or more. According to an independent annual individual or family fiscal year government cost estimate, the annual deductible for dependents of a Reserve 44 CFR Part 65 Component member who is called or cost for both of these provisions will be [Docket No. FEMA–B–7797] less than $30 million. ordered to active duty for a period of This rule, however, does address a more than 30 days or a National Guard Changes in Flood Elevation novel policy issue relating to waiving member who is called or ordered to Determinations the deductibles for one category of fulltime federal National Guard duty for family member beneficiaries and not a period of more than 30 days in AGENCY: Federal Emergency others, as well as allowing providers support of a contingency operation (as Management Agency, DHS. who treat this same group of defined in 10 U.S.C. 101(a)(13)). For ACTION: Interim rule. beneficiaries to receive reimbursement purposes of this paragraph, a dependent SUMMARY: at a higher rate than providers who treat This interim rule lists is a lawful husband or wife of the communities where modification of the similar beneficiaries. Thus this rule has member and a child is defined in been reviewed by the Office of Base (1% annual-chance) Flood paragraphs (b)(2)(ii)(A) through (F) and Elevations (BFEs) is appropriate because Management and Budget under E.O. (b)(2)(ii)(H)(1), (2), and (4) of § 199.3. 12866. of new scientific or technical data. New This rule will not have a significant * * * * * flood insurance premium rates will be calculated from the modified BFEs for impact on a substantial number of small I 3. Section 199.14 is amended by new buildings and their contents. entities for purposes of the RFA. adding paragraph (j)(1)(i)(E) to read as DATES: This rule does not contain a Federal follows: These modified BFEs are mandate that may result in the currently in effect on the dates listed in expenditure by State, local and tribunal § 199.14 Provider reimbursement the table below and revise the Flood governments, in aggregate, or by the methods. Insurance Rate Maps (FIRMs) in effect private sector, of $100 million or more * * * * * prior to this determination for the listed communities. in any one year. (j) * * * This rule will not impose additional From the date of the second information collection requirements on (1) * * * publication of these changes in a the public under the Paperwork (i) * * * newspaper of local circulation, any Reduction Act of 1995 (44 U.S.C. 3501– person has ninety (90) days in which to (E) Special rule for certain TRICARE request through the community that the 3511). Standard Beneficiaries. In the case of We have examined the impact(s) of Mitigation Assistant Administrator of dependent spouse or child, as defined the final rule under Executive Order FEMA reconsider the changes. The in paragraphs (b)(2)(ii)(A) through (F) 13132 and it does not have policies that modified BFEs may be changed during have federalism implications that have and (b)(2)(ii)(H)(1), (2), and (4) of the 90-day period. substantial direct effects on the States, § 199.3, of a Reserve Component ADDRESSES: The modified BFEs for each on the relationship between the national member serving on active duty pursuant community are available for inspection government and the States, or on the to a call or order to active duty for a at the office of the Chief Executive distribution of power and period of more than 30 days in support Officer of each community. The responsibilities among the various of a contingency operation under a respective addresses are listed in the levels of government, therefore, provision of law referred to in section table below. consultation with State and local 101(a)(13)(B) of title 10, United States FOR FURTHER INFORMATION CONTACT: officials is not required. Code, the Director, TRICARE William R. Blanton, Jr., Engineering Management Activity, may authorize List of Subjects in 32 CFR Part 199 Management Branch, Mitigation non-participating providers the Directorate, Federal Emergency Claims, Dental health, Health care, allowable charge to be the CMAC level Management Agency, 500 C Street SW., Health insurance, Individuals with as established in paragraph (j)(l)(i)(B) of Washington, DC 20472, (202) 646–3151. disabilities, Military personnel. this section plus any balance billing SUPPLEMENTARY INFORMATION: The I Accordingly, 32 CFR part 199 is amount up to the balance billing limit modified BFEs are not listed for each amended as follows: as referred to in paragraph (j)(l)(i)(C) of community in this interim rule. this section. However, the address of the Chief PART 199—[AMENDED] * * * * * Executive Officer of the community where the modified BFE determinations I 1. The authority citation for part 199 Dated: August 6, 2008. continues to read as follows: are available for inspection is provided. Patricia L. Toppings, Any request for reconsideration must Authority: 5 U.S.C. 301; 10 U.S.C. chapter OSD Federal Register Liaison Officer, be based on knowledge of changed 55. Department of Defense. conditions or new scientific or technical I 2. Section 199.4 is amended by [FR Doc. E8–18597 Filed 8–11–08; 8:45 am] data. revising paragraph (f)(2)(i)(H) to read as BILLING CODE 5001–06–P The modifications are made pursuant follows: to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, § 199.4 Basic program benefits. and are in accordance with the National * * * * * Flood Insurance Act of 1968, 42 U.S.C. (f) * * * 4001 et seq., and with 44 CFR part 65.

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

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

Alabama: Jefferson City of Birmingham June 20, 2008; June 27, 2008; The Honorable Larry P. Langford, Mayor, July 28, 2008 ...... 010116 (08–04–2759P). The Birmingham News. City of Birmingham, 710 North 20th Street, Birmingham, AL 35203. Colorado: Adams ..... City of Thornton June 5, 2008; June 12, 2008; The Honorable Erik Hansen, Mayor, City October 10, 2008 ...... 080007 (08–08–0377P). Northglenn-Thornton Sentinel. of Thornton, 9500 Civic Center Drive, Thornton, CO 80229. Connecticut: Hartford City of Bristol (08– June 25, 2008; July 2, 2008; The Honorable Arthur Ward, Mayor, City June 11, 2008 ...... 090023 01–0505P). The Hartford Courant. of Bristol, City Hall, 111 North Main Street, Bristol, CT 06010. Florida: Seminole .... City of Winter June 18, 2008; June 25, 2008; The Honorable John F. Bush, Mayor, City October 23, 2008 ...... 120295 Springs (08–04– Orlando Sentinel. of Winter Springs, 21 Tarpon Circle, 4157P). Winter Springs, FL 32708. Hawaii: Maui ...... Unincorporated February 21. 2008; February The Honorable Charmaine Tavares, February 12, 2008 ...... 150003 areas of Maui 28, 2008; Maui News. Mayor, Maui County, 200 South High County (07–09– Street, Wailuku, HI 96793. 1848P). Idaho: Madison ...... Unincorporated July 3, 2008; July 10, 2008; The Honorable Ralph Robison, Chairman, June 16, 2008 ...... 160217 areas of Madison Standard Journal. Madison County, Board of Commis- County (08–10– sioners, P.O. Box 389, Rexburg, ID 0206P). 83440. Illinois: Lake ...... Unincorporated June 5, 2008; June 12, 2008; The Honorable Suzi Schmidt, Chair, Lake October 10, 2008 ...... 170357 areas of Lake Lake County News-Sun. County Board, 18 North County Street, County (08–05– Room 1001, Waukegan, IL 60085. 1098P). Lake ...... Village of Lake Bar- June 5, 2008; June 12, 2008; The Honorable Kevin Richardson, Presi- October 10, 2008 ...... 170372 rington (08–05– Lake County News-Sun. dent, Village of Lake Barrington, 23860 1098P). Old Barrington Road, Lake Barrington, IL 60010. Lake ...... Village of North Bar- June 5, 2008; June 12, 2008; The Honorable Bruce J. Sauer, President, October 10, 2008 ...... 170383 rington (08–05– Lake County News-Sun. Village of North Barrington, 111 Old 1098P). Barrington Road, North Barrington, IL 60010. Minnesota: Anoka .... City of Blaine (08– June 6, 2008; June 13, 2008; The Honorable Thomas Ryan, Mayor, October 13, 2008 ...... 270007 05–1446P). Blaine-Spring Lake Park Life. City of Blaine, 10801 Town Square Drive Northeast, Blaine, MN 55449. Missouri: St. Charles Unincorporated June 25, 2008; July 2, 2008; The Honorable Steve Ehlmann, County October 30, 2008 ...... 290315 County. areas of St. St. Charles Journal. Executive, St. Charles County, St. Charles County Charles County Courthouse, 100 North (08–07–0068P). Third Street, St. Charles, MO 63301. St. Charles City of St. Peters June 25, 2008; July 2, 2008; The Honorable Len Pagano, Mayor, City October 30, 2008 ...... 290319 County. (08–07–0068P). St. Charles Journal. of St. Peters, One St. Peters Centre Boulevard, St. Peters, MO 63376. Montana: Flathead .. Unincorporated June 13, 2008; June 20, 2008; The Honorable Gary D. Hall, Chairman, June 2, 2008 ...... 300023 areas of Flathead Daily Inter Lake. Flathead County, Board of Commis- County (08–08– sioners, 800 South Main Street, Kali- 0430P). spell, MT 59901.

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

Nevada: Clark ...... Unincorporated July 8, 2008; July 15, 2008; The Honorable Rory Reid, Chair, Clark November 12, 2008 ...... 320003 areas of Clark Las Vegas Review-Journal. County Board of Commissioners, 500 County (07–09– South Grand Central Parkway, Las 1612P). Vegas, NV 89106. Pennsylvania: Lackawanna ..... City of Scranton April 28, 2008; May 5, 2008; The Honorable Christopher A. Doherty, September 2, 2008 ...... 420538 (07–03–0177P). The Scranton Times Tribune. Mayor, City of Scranton, 340 North Washington Avenue, Scranton, PA 18503. Lackawanna ..... Borough of Taylor April 28, 2008; May 5, 2008; The Honorable Richard Bowen, Mayor, September 2, 2008 ...... 420539 (07–03–0177P). The Scranton Times Tribune. Borough of Taylor, 122 Union Street, Taylor, PA 18517. Tennessee: Coffee ...... City of Tullahoma May 14, 2008; May 21, 2008; The Honorable Troy Bisby, Mayor, City of September 18, 2008 ...... 470036 (07–04–5627P). The Tullahoma News. Tullahoma, 201 West Grundy Street, Tullahoma, TN 37388. Wilson ...... City of Lebanon (08– May 28, 2008; June 4, 2008; The Honorable Robert Dedman, Mayor, May 16, 2008 ...... 270208 04–1439P). The Wilson Post. Wilson County, 228 East Main Street, Room 104, Lebanon, TN 37087. Texas: Bexar ...... City of San Antonio June 26, 2008; July 3, 2008; The Honorable Phil Hardberger, Mayor, October 31, 2008 ...... 480045 (07–06–0823P). San Antonio Express News. City of San Antonio, P.O. Box 839966, San Antonio, TX 78283. Collin ...... City of McKinney June 26, 2008; July 3, 2008; The Honorable Bill Whitfield, Mayor, City October 31, 2008 ...... 480135 (07–06–1407P). McKinney Courier Gazette. of McKinney, 222 North Tennessee Street, McKinney, TX 75069. Ellis ...... City of Waxahachie May 28, 2008; June 4, 2008; The Honorable Joe Jenkins, Mayor, City October 2, 2008 ...... 480211 (08–06–0662P). Waxahachie Daily Light. of Waxahachie, P.O. Box 757, Waxahachie, TX 75165. Harris ...... Unincorporated July 2, 2008; July 9, 2008; The Honorable Ed Emmett, Harris County October 30, 2008 ...... 480287 areas of Harris Houston Chronicle. Judge, 1001 Preston Street, Suite 911, County (07–06– Houston, TX 77002. 2077P). Tarrant ...... City of Fort Worth May 30, 2008; June 6, 2008; The Honorable Michael J. Moncrief, September 29, 2008 ...... 480596 (07–06–2613P). Fort Worth Star-Telegram. Mayor, City of Fort Worth, 1000 Throckmorton Street, Fort Worth, TX 76102. Virginia: Independent City of Winchester May 8, 2008; May 15, 2008; The Honorable Elizabeth Minor, Mayor, September 12, 2008 ...... 510173 City. (08–03–0801P). The Winchester Star. City of Winchester, 231 East Piccadilly Street, Suite 310, Winchester, VA 22601. Wisconsin: Dodge ...... Unincorporated June 19, 2008; June 26, 2008; The Honorable Russell E. Kottke, Chair- October 24, 2008 ...... 550094 areas of Dodge Watertown Daily Times. man, Dodge County, Board of Super- County (07–05– visors, 127 East Oak Street, Beaver 4832P). Dam, WI 53039. Dodge ...... City of Watertown June 19, 2008; June 26, 2008; The Honorable Ron Krueger, Mayor, City October 24, 2008 ...... 550107 (07–05–4832P). Watertown Daily Times. of Watertown, P.O. Box 477, Water- town, WI 53094. Ozaukee ...... Unincorporated June 5, 2008; June 12, 2008; The Honorable Robert Brooks, Chairman, October 10, 2008 ...... 550310 areas of Ozaukee Ozaukee Press. Ozaukee County Board, P.O. Box 994, County (08–05– Port Washington, WI 53074–0994. 1362P).

(Catalog of Federal Domestic Assistance No. DEPARTMENT OF HOMELAND already in effect in order to qualify or 97.022, ‘‘Flood Insurance.’’) SECURITY remain qualified for participation in the Dated: July 25, 2008. National Flood Insurance Program Federal Emergency Management (NFIP). Edward L. Connor, Agency Deputy Assistant Administrator for DATES: The date of issuance of the Flood Insurance, Department of Homeland Security, 44 CFR Part 67 Insurance Rate Map (FIRM) showing Federal Emergency Management Agency. BFEs and modified BFEs for each [FR Doc. E8–18530 Filed 8–11–08; 8:45 am] Final Flood Elevation Determinations community. This date may be obtained BILLING CODE 9110–12–P by contacting the office where the maps AGENCY: Federal Emergency are available for inspection as indicated Management Agency, DHS. on the table below. ACTION: Final rule. ADDRESSES: The final BFEs for each SUMMARY: Base (1% annual chance) community are available for inspection Flood Elevations (BFEs) and modified at the office of the Chief Executive BFEs are made final for the Officer of each community. The communities listed below. The BFEs respective addresses are listed in the and modified BFEs are the basis for the table below. floodplain management measures that FOR FURTHER INFORMATION CONTACT: each community is required either to William R. Blanton, Jr., Engineering adopt or to show evidence of being Management Branch, Mitigation

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Directorate, Federal Emergency each community. The BFEs and Executive Order 12988, Civil Justice Management Agency, 500 C Street, SW., modified BFEs are made final in the Reform. This final rule meets the Washington, DC 20472, (202) 646–3151. communities listed below. Elevations at applicable standards of Executive Order SUPPLEMENTARY INFORMATION: The selected locations in each community 12988. are shown. Federal Emergency Management Agency List of Subjects in 44 CFR Part 67 (FEMA) makes the final determinations National Environmental Policy Act. listed below for the modified BFEs for This final rule is categorically excluded Administrative practice and each community listed. These modified from the requirements of 44 CFR part procedure, Flood insurance, Reporting elevations have been published in 10, Environmental Consideration. An and recordkeeping requirements. newspapers of local circulation and environmental impact assessment has ninety (90) days have elapsed since that not been prepared. I Accordingly, 44 CFR part 67 is publication. The Assistant Regulatory Flexibility Act. As flood amended as follows: Administrator of the Mitigation elevation determinations are not within PART 67—[AMENDED] Directorate has resolved any appeals the scope of the Regulatory Flexibility resulting from this notification. Act, 5 U.S.C. 601–612, a regulatory I 1. The authority citation for part 67 This final rule is issued in accordance flexibility analysis is not required. continues to read as follows: with section 110 of the Flood Disaster Regulatory Classification. This final Protection Act of 1973, 42 U.S.C. 4104, rule is not a significant regulatory action Authority: 42 U.S.C. 4001 et seq.; and 44 CFR part 67. FEMA has under the criteria of section 3(f) of Reorganization Plan No. 3 of 1978, 3 CFR, developed criteria for floodplain Executive Order 12866 of September 30, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, management in floodprone areas in 1993, Regulatory Planning and Review, 3 CFR, 1979 Comp., p. 376. accordance with 44 CFR part 60. 58 FR 51735. § 67.11 [Amended] Interested lessees and owners of real Executive Order 13132, Federalism. property are encouraged to review the This final rule involves no policies that I 2. The tables published under the proof Flood Insurance Study and FIRM have federalism implications under authority of § 67.11 are amended as available at the address cited below for Executive Order 13132. follows:

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

Codington County, South Dakota and Incorporated Areas Docket No.: FEMA–B–7755

East Branch Roby Creek ...... Approximately 200 feet east of 11th Street Northeast ...... +1,767 Unincorporated Areas of Codington County, City of Watertown. 14th Avenue Northeast ...... +1,777 East Branch Roby Creek ...... Approximately 400 feet west of 7th Street Northeast ...... +1,760 City of Watertown. Approximately 200 feet west of 11th Street Northeast ...... +1,765 Unincorporated Areas of Codington County. Lake Kampeska ...... Approximately 200 feet northeast of intersection of 448th +1,725 Unincorporated Areas of Avenue and U.S. Highway 212. Codington County, City of Watertown. Lake Kampeska ...... Approximately 100 feet west of intersection of 452nd Ave- +1,725 City of Watertown, Unincor- nue and Stadheim Drive. porated Areas of Codington County. Pelican Lake ...... Approximately 700 feet north of intersection of 174th +1,717 Unincorporated Areas of Street and 452nd Avenue. Codington County, City of Watertown. Pelican Lake ...... Junction of 21st Street SW and 12th Avenue SW ...... +1,717 City of Watertown, Unincor- porated Areas of Codington County. Roby Creek ...... Approximately 4,500 feet downstream from U.S. Highway +1,715 City of Watertown. 212. Approximately 100 feet east of U.S. Highway 81 ...... +1,770

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Watertown Maps are available for inspection at the Watertown City Hall, 23 Second St., NE., Watertown, South Dakota 57201. Unincorporated Areas of Codington County Maps are available for inspection at the Codington County Planning and Zoning Department, Codington County Extension Complex, 1910 West Kemp Avenue, Watertown, South Dakota 57201–3048.

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

Grainger County, Tennessee, and Incorporated Areas Docket No.: FEMA B–7749

Lea Creek ...... Approximately 2,800 feet upstream U.S. Highway 11 ...... +913 Unincorporated Areas of Grainger County. Approximately 4,200 feet upstream U.S. Highway 11 ...... +913 Norris Lake ...... Approximately 5,200 feet downstream of the confluence of +1032 Unincorporated Areas of Black Fox Creek. Grainger County. Approximately 2,500 feet downstream of U.S. Highway 25 +1032

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Unincorporated Areas of Grainger County Maps are available for inspection at Grainger County Courthouse, P.O. Box 126, Rutledge, TN 37861.

(Catalog of Federal Domestic Assistance No. Defense Pentagon, Washington, DC List of Subjects in 48 CFR Parts 219 and 97.022, ‘‘Flood Insurance.’’) 20301–3062. Telephone 703–602–0289; 252 Dated: July 25, 2008. facsimile 703–602–7887. Please cite Government procurement. Edward L. Connor, DFARS Case 2008–D001. Michele P. Peterson, Deputy Assistant Administrator for SUPPLEMENTARY INFORMATION: Insurance, Department of Homeland Security, Editor, Defense Acquisition Regulations Federal Emergency Management Agency. A. Background System. [FR Doc. E8–18527 Filed 8–11–08; 8:45 am] I Therefore, 48 CFR parts 219 and 252 BILLING CODE 9110–12–P Section 904 of the National Defense Authorization Act for Fiscal Year 2006 and Appendix I to chapter 2 are (Pub. L. 109–163) redesignated the amended as follows: DEPARTMENT OF DEFENSE ‘‘Office of Small and Disadvantaged I 1. The authority citation for 48 CFR Business Utilization’’ to the ‘‘Office of parts 219 and 252 and Appendix I to Defense Acquisition Regulations Small Business Programs’’ for DoD. This subchapter I continues to read as System final rule amends the DFARS to reflect follows: the redesignation. Authority: 41 U.S.C. 421 and 48 CFR 48 CFR Chapter 2 This rule was not subject to Office of Chapter 1. RIN 0750–AG00 Management and Budget review under PART 219—SMALL BUSINESS Executive Order 12866, dated PROGRAMS Defense Federal Acquisition September 30, 1993. Regulation Supplement; Small 219.201 [Amended] Business Program Name Change B. Regulatory Flexibility Act (DFARS Case 2008–D001) I This rule will not have a significant 2. Section 219.201 is amended in paragraph (d) introductory text, and in AGENCY: Defense Acquisition cost or administrative impact on paragraph (f) in the first and second Regulations System, Department of contractors or offerors, or a significant sentences, by removing ‘‘Small and Defense (DoD). effect beyond the internal operating Disadvantaged Business Utilization’’ ACTION: Final rule. procedures of DoD. Therefore, and adding in its place ‘‘Small Business publication for public comment under Programs’’. SUMMARY: DoD has issued a final rule 41 U.S.C. 418b is not required. amending the Defense Federal However, DoD will consider comments 219.1007 [Amended] Acquisition Regulation Supplement from small entities concerning the (DFARS) to reflect the redesignation of I 3. Section 219.1007 is amended in affected DFARS subparts in accordance the ‘‘Office of Small and Disadvantaged paragraph (b)(1), in the first sentence, by with 5 U.S.C. 610. Such comments Business Utilization’’ to the ‘‘Office of removing ‘‘Small and Disadvantaged Small Business Programs’’ within DoD. should cite DFARS Case 2008–D001. Business Utilization’’ and adding in its The redesignation resulted from Section C. Paperwork Reduction Act place ‘‘Small Business Programs’’. 904 of the National Defense Authorization Act for Fiscal Year 2006. The Paperwork Reduction Act does 219.7102 [Amended] DATES: Effective Date: August 12, 2008. not apply, because the rule does not I 4. Section 219.7102 is amended in FOR FURTHER INFORMATION CONTACT: Ms. impose any information collection paragraph (d)(1)(ii) by removing ‘‘Small Deborah Tronic, Defense Acquisition requirements that require the approval and Disadvantaged Business Utilization Regulations System, OUSD (AT&L) of the Office of Management and Budget (SADBU)’’ and adding in its place DPAP (DARS), IMD 3D139, 3062 under 44 U.S.C. 3501, et seq. ‘‘Small Business Programs (SBP)’’.

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219.7103–1 [Amended] I–107 [Amended] DEPARTMENT OF DEFENSE I 5. Section 219.7103–1 is amended in I 11. Appendix I to chapter 2 is the second sentence by removing Defense Acquisition Regulations amended in section I–107, in paragraph System ‘‘SADBU’’ and adding in its place (j) in the second sentence, by removing ‘‘SBP’’. ‘‘SADBU’’ and adding in its place 48 CFR Parts 203, 250, and 252 219.7103–2 [Amended] ‘‘SBP’’. RIN 0750–AG01 I 6. Section 219.7103–2 is amended in I–108 [Amended] paragraphs (d)(1), (e)(3), and (f) by Defense Federal Acquisition removing ‘‘SADBU’’ and adding in its I 12. Appendix I to chapter 2 is Regulation Supplement; Conforming place ‘‘SBP’’. amended in section I–108, in paragraphs Changes—Standards of Conduct and (c), (e), and (f), by removing ‘‘SADBU’’ Extraordinary Contractual Actions PART 252—SOLICITATION and adding in its place ‘‘SBP’’. (DFARS Case 2008–D004) PROVISIONS AND CONTRACT CLAUSES I–109 [Amended] AGENCY: Defense Acquisition Regulations System, Department of I 7. Section 252.219–7004 is amended I 13. Appendix I to chapter 2 is Defense (DoD). by revising the clause date and amended in section I–109, in paragraph ACTION: Final rule. paragraph (c)(1) to read as follows: (c) in the second sentence, and in paragraph (d) in the first and second SUMMARY: DoD has issued a final rule 252.219–7004 Small Business amending the Defense Federal Subcontracting Plan (Test Program). sentences, by removing ‘‘SADBU’’ and adding in its place ‘‘SBP’’. Acquisition Regulation Supplement * * * * * (DFARS) to update text addressing SMALL BUSINESS I–110.2 [Amended] contractor standards of conduct and the handling of extraordinary contractual SUBCONTRACTING PLAN (TEST I 14. Appendix I to chapter 2 is PROGRAM) (AUG 2008) actions. The DFARS changes are amended in section I–110.2, in consistent with changes made to the * * * * * paragraph (a) introductory text, in Federal Acquisition Regulation. (c) * * * paragraph (b) introductory text in the DATES: Effective Date: August 12, 2008. (1) One copy of the SF 295 and second sentence, and in paragraph (c), attachments shall be submitted to Director, by removing ‘‘SADBU’’ and adding in FOR FURTHER INFORMATION CONTACT: Ms. Small Business Programs, Office of the Under its place ‘‘SBP’’. Amy Williams, Defense Acquisition Secretary of Defense (Acquisition, Regulations System, OUSD (AT&L) Technology, and Logistics), 201 12th Street I–111 [Amended] DPAP (DARS), IMD 3D139, 3062 South, Suite 406, Arlington, VA 22202; and Defense Pentagon, Washington, DC * * * * * I 15. Appendix I to chapter 2 is 20301–3062. Telephone 703–602–0328; Appendix I to Chapter 2—Policy and amended in section I–111, in paragraph facsimile 703–602–7887. Please cite Procedures for the DOD Pilot Mentor- (a), by removing ‘‘SADBU’’ and adding DFARS Case 2008–D004. Protege Program in its place ‘‘SBP’’. SUPPLEMENTARY INFORMATION: I–102 [Amended] I–112.2 [Amended] A. Background I 8. Appendix I to chapter 2 is amended I 16. Appendix I to chapter 2 is This final rule updates DFARS text for in section I–102 as follows: amended in section I–112.2 as follows: consistency with changes made to the I a. In paragraph (a)(1) by removing Federal Acquisition Regulation (FAR) as I a. In paragraph (d) by removing ‘‘Small and Disadvantaged Business follows: ‘‘http://www.acq.osd.mil/sadbu/ Æ Removes DFARS Subpart 203.70, Utilization (SADBU)’’ and adding in its _ place ‘‘Small Business Programs (SBP)’’; mentor protege’’ and adding in its place Contractor Standards of Conduct, and ‘‘http://www.acq.osd.mil/osbp/ the corresponding contract clause at and _ I b. In paragraph (f)(3) by removing mentor protege/’’; and 252.203–7002, since policy on this ‘‘SADBU’’ and adding in its place I b. In paragraphs (g)(1) and (2) by subject was added to the FAR at 72 FR ‘‘SBP’’. removing ‘‘SADBU’’ and adding in its 65873 on November 23, 2007. place ‘‘SBP’’. Æ Adds DFARS 203.1004 to provide I–103 [Amended] address information for use in I 9. Appendix I to chapter 2 is amended I–113 [Amended] completion of the clause at FAR 52.203– in section I–103, in paragraph (b)(3), by 14, Display of Hotline Poster(s). I 17. Appendix I to chapter 2 is removing ‘‘SADBU’’ and adding in its Æ Revises DFARS Part 250 for amended in section I–113, in paragraph place ‘‘SBP’’. consistency with the structure of FAR (b), by removing ‘‘http:// Part 50, as revised at 72 FR 63027 on I–105 [Amended] www.acq.osd.mil/sadbu/ November 7, 2007. The DFARS changes _ I 10. Appendix I to chapter 2 is mentor protege’’ and adding in its place update headings, numbering, and cross- amended in section I–105 as follows: ‘‘http://www.acq.osd.mil/osbp/ references, and reflect the dollar I a. In paragraph (a), in the first mentor_protege/.’’ threshold currently specified in the FAR sentence, by removing ‘‘SADBU’’ and [FR Doc. E8–18508 Filed 8–11–08; 8:45 am] with regard to delegation of authority adding in its place ‘‘SBP’’; and BILLING CODE 5001–08–P for approval of extraordinary I b. In paragraph (c) by removing contractual actions. ‘‘http://www.acq.osd.mil/sadbu/ This rule was not subject to Office of mentor_protege’’ and adding in its place Management and Budget review under ‘‘http://www.acq.osd.mil/osbp/ Executive Order 12866, dated mentor_protege/’’. September 30, 1993.

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B. Regulatory Flexibility Act 250.101 General. Force will specify delegations and levels 250.101–2 Policy. This rule will not have a significant of authority for actions under the Act 250.101–2–70 Limitations on payment. and the Executive Order in cost or administrative impact on 250.101–3 Records. contractors or offerors, or a significant departmental supplements or agency 250.102 Delegation of and limitations on acquisition guidance. effect beyond the internal operating exercise of authority. (b) Defense agencies. Subject to the procedures of DoD. Therefore, 250.102–1 Delegation of authority. restrictions on delegations of authority publication for public comment under 250.102–1–70 Delegations. in 250.102–1(b) and FAR 50.102–1, the 41 U.S.C. 418b is not required. 250.102–2 Contract adjustment boards. directors of the defense agencies may However, DoD will consider comments 250.103 Contract adjustments. exercise and redelegate the authority from small entities concerning the 250.103–3 Contract adjustment. 250.103–5 Processing cases. contained in the Act and the Executive affected DFARS subparts in accordance 250.103–6 Disposition. Order. The agency supplements or with 5 U.S.C. 610. Such comments 250.104 Residual powers. agency acquisition guidance shall should cite DFARS Case 2008-D004. 250.104–3 Special procedures for unusually specify the delegations and levels of C. Paperwork Reduction Act hazardous or nuclear risks. authority. 250.104–3–70 Indemnification under (1) Requests to obligate the The Paperwork Reduction Act does contracts involving both research and Government in excess of $55,000 must not apply, because the rule does not development and other work. be submitted to the USD (AT&L) for impose any information collection Authority: 41 U.S.C. 421 and 48 CFR approval. requirements that require the approval Chapter 1. (2) Requests for indemnification of the Office of Management and Budget against unusually hazardous or nuclear under 44 U.S.C. 3501, et seq. Subpart 250.1—Extraordinary Contractual Actions risks must be submitted to the List of Subjects in 48 CFR Parts 203, USD(AT&L) for approval before using 250, and 252 250.100 Definitions. the indemnification clause at FAR Government procurement. Secretarial level, as used in this 52.250–1, Indemnification Under Public subpart, means— Law 85–804. Michele P. Peterson, (1) An official at or above the level of (c) Approvals. The Secretary of the Editor, Defense Acquisition Regulations an Assistant Secretary (or Deputy) of military department or the agency System. Defense or of the Army, Navy, or Air director must approve any delegations I Therefore, 48 CFR parts 203, 250, and Force; and in writing. (2) A contract adjustment board 252 are amended as follows: 250.102–2 Contract adjustment boards. established by the Secretary concerned. I 1. The authority citation for 48 CFR The Departments of the Army, Navy, parts 203, 250, and 252 continues to 250.101 General. and Air Force each have a contract read as follows: adjustment board. The board consists of 250.101–2 Policy. Authority: 41 U.S.C. 421 and 48 CFR a Chair and not less than two nor more Chapter 1. 250.101–2–70 Limitations on payment. than six other members, one of whom may be designated the Vice-Chair. A PART 203—IMPROPER BUSINESS See 10 U.S.C. 2410(b) for limitations on Congressionally directed payment of majority constitutes a quorum for any PRACTICES AND PERSONAL purpose and the concurring vote of a CONFLICTS OF INTEREST a request for equitable adjustment to contract terms or a request for relief majority of the total board membership constitutes an action of the board. I 2. Subpart 203.10 is added to read as under Public Law 85–804. Alternates may be appointed to act in follows: 250.101–3 Records. the absence of any member. Follow the procedures at PGI Subpart 203.10—Contractor Code of 250.103 Contract adjustments. Business Ethics and Conduct 250.101–3 for preparation of records. 250.103–3 Contract adjustment. 203.1004 Contract clauses. 250.102 Delegation of and limitations on exercise of authority. (a) Contractor requests should be filed (b)(2)(ii) Insert the following address with the procuring contracting officer in paragraph (b)(3) of the clause at FAR 250.102–1 Delegation of authority. (PCO). However, if filing with the PCO 52.203–14, Display of Hotline Poster(s): (b) Authority under FAR 50.104 to is impractical, requests may be filed DoD Inspector General, ATTN: Defense approve actions obligating $55,000 or with an authorized representative, an Hotline, 400 Army Navy Drive, less may not be delegated below the administrative contracting officer, or the Washington, DC 22202–2884. level of the head of the contracting Office of General Counsel of the activity. applicable department or agency, for Subpart 203.70 [Removed] (d) In accordance with the acquisition forwarding to the cognizant PCO. authority of the Under Secretary of I 3. Subpart 203.70 is removed. Defense (Acquisition, Technology, and 250.103–5 Processing cases. I 4. Part 250 is revised to read as Logistics (USD (AT&L)) under 10 U.S.C. (1) At the time the request is filed, the follows: 133, in addition to the Secretary of activity shall prepare the record described at PGI 250.101–3(1)(i) and PART 250—EXTRAORDINARY Defense and the Secretaries of the military departments, the USD (AT&L) forward it to the appropriate official CONTRACTUAL ACTIONS AND THE within 30 days after the close of the SAFETY ACT may exercise authority to indemnify against unusually hazardous or nuclear month in which the record is prepared. (2) The officer or official responsible Subpart 250.1—Extraordinary risks. for the case shall forward to the contract Contractual Actions 250.102–1–70 Delegations. adjustment board, through departmental Sec. (a) Military departments. The channels, the documentation described 250.100 Definitions. Departments of the Army, Navy, and Air at PGI 250.103–5.

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(3) Contract adjustment boards will ACTION: Interim rule with request for FSC Description render decisions as expeditiously as comments. practicable. The Chair shall sign a 3510 Laundry and Dry Cleaning Equip- memorandum of decision disposing of SUMMARY: DoD has issued an interim ment. the case. The decision shall be dated rule amending the Defense Federal 5340 Miscellaneous Hardware. Acquisition Regulation Supplement to 5935 Connectors, Electrical. and shall contain the information 5975 Electrical Hardware and Supplies. required by FAR 50.103–6. The implement Section 827 of the National Defense Authorization Act for Fiscal 5995 Cable, cord, wire assemblies; memorandum of decision shall not communications equipment. contain any information classified Year 2008. Section 827 requires the use 6145 Wire and cable, Electrical. ‘‘Confidential’’ or higher. The board’s of competitive procedures in the 7110 Office Furniture. decision will be sent to the appropriate acquisition of items for which Federal 7210 Household Furnishings. official for implementation. Prison Industries has a significant This rule was not subject to Office of market share. Management and Budget review under 250.103–6 Disposition. DATES: Effective date: August 12, 2008. Executive Order 12866, dated For requests denied or approved Comment date: Comments on the September 30, 1993. below the Secretarial level, follow the interim rule should be submitted in disposition procedures at PGI 250.103– writing to the address shown below on B. Regulatory Flexibility Act 6. or before October 14, 2008, to be DoD has prepared an initial regulatory considered in the formation of the final flexibility analysis consistent with 5 250.104 Residual powers. rule. U.S.C. 603. A copy of the analysis may 250.104–3 Special procedures for ADDRESSES: You may submit comments, be obtained from the point of contact unusually hazardous or nuclear risks. identified by DFARS Case 2008–D015, specified herein. The analysis is using any of the following methods: summarized as follows: 250.104–3–70 Indemnification under Æ Federal eRulemaking Portal: The objective of the rule is to provide contracts involving both research and for competition in the acquisition of development and other work. http://www.regulations.gov. Follow the instructions for submitting comments. items for which FPI has a significant When indemnification is to be Æ E-mail: [email protected]. Include market share. The legal basis for the rule provided on contracts requiring both DFARS Case 2008–D015 in the subject is 10 U.S.C. 2410n, as amended by research and development work and line of the message. Section 827 of the National Defense other work, the contracting officer shall Æ Fax: 703–602–7887. Authorization Act for Fiscal Year 2008 insert an appropriate clause using the Æ Mail: Defense Acquisition (Pub. L. 110–181). The rule is expected authority of both 10 U.S.C. 2354 and Regulations System, Attn: Mr. Michael to benefit small business concerns that Public Law 85–804. Benavides, OUSD (AT&L) DPAP offer items for which FPI has a (a) The use of Public Law 85–804 is (DARS), IMD 3D139, 3062 Defense significant market share, by permitting limited to work which cannot be Pentagon, Washington, DC 20301–3062. those concerns to compete for indemnified under 10 U.S.C. 2354 and Æ Hand Delivery/Courier: Defense additional DoD contract awards. The is subject to compliance with FAR Acquisition Regulations System, Crystal rule also could adversely impact small 50.104. Square 4, Suite 200A, 241 18th Street, business concerns that provide supplies (b) Indemnification under 10 U.S.C. Arlington, VA 22202–3402. and services to FPI relative to the 2354 is covered by 235.070. Comments received generally will be affected items. The rule deviates from posted without change to http:// the policy in Subpart 8.6 of the Federal PART 252—SOLICITATION Acquisition Regulation with regard to PROVISIONS AND CONTRACT www.regulations.gov, including any personal information provided. the acquisition of items from FPI. This CLAUSES alternate DoD policy is necessary to FOR FURTHER INFORMATION CONTACT: Mr. implement Section 827 of Public Law 252.203–7002 [Removed] Michael Benavides, 703–602–1302. 110–181. I 5. Section 252.203–7002 is removed. SUPPLEMENTARY INFORMATION: DoD invites comments from small [FR Doc. E8–18504 Filed 8–11–08; 8:45 am] A. Background businesses and other interested parties. BILLING CODE 5001–08–P DoD also will consider comments from Section 827 of the National Defense small entities concerning the affected Authorization Act for Fiscal Year 2008 DFARS subpart in accordance with 5 (Pub. L. 110–181) amended 10 U.S.C. DEPARTMENT OF DEFENSE U.S.C. 610. Such comments should be 2410n to require the use of competitive submitted separately and should cite Defense Acquisition Regulations procedures in the acquisition of items DFARS Case 2008–D015. System for which Federal Prison Industries (FPI) has a significant market share. C. Paperwork Reduction Act 48 CFR Part 208 Section 827 provides that FPI shall be The Paperwork Reduction Act does treated as having a significant share of not apply, because the rule does not the market for a product if DoD, in RIN 0750–AG03 impose any information collection consultation with the Office of Federal requirements that require the approval Defense Federal Acquisition Procurement Policy, determines that the of the Office of Management and Budget Regulation Supplement; Competition FPI share of the DoD market for the under 44 U.S.C. 3501, et seq. Requirements for Purchases From category of products including that product is greater than 5 percent. D. Determination To Issue an Interim Federal Prison Industries (DFARS Rule Case 2008–D015) DoD has determined that FPI presently has a significant market share A determination has been made under AGENCY: Defense Acquisition of the items in the following Federal the authority of the Secretary of Regulations System, Department of Supply Classes (FSC). DoD will update Defense, that urgent and compelling Defense (DoD). the following list as necessary. reasons exist to publish an interim rule

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prior to affording the public an FPI, and make an award in accordance PART 208—REQUIRED SOURCES OF opportunity to comment. This interim with the policy at FAR 8.602(a)(4)(ii) SUPPLIES AND SERVICES rule implements Section 827 of the through (v). National Defense Authorization Act for (2) When acquiring an item for which I 2. The heading of Subpart 208.7 is Fiscal Year 2008 (Pub. L. 110–181). FPI does not have a significant market revised to read as follows: Section 827 requires DoD to use share, acquire the item in accordance Subpart 208.7—Acquisition From competitive procedures in the with the policy at FAR 8.602. acquisition of items for which FPI has Nonprofit Agencies Employing People a significant share of the DoD market. [FR Doc. E8–18506 Filed 8–11–08; 8:45 am] Who Are Blind or Severely Disabled Comments received in response to this BILLING CODE 5001–08–P PART 236—CONSTRUCTION AND interim rule will be considered in the ARCHITECT-ENGINEER CONTRACTS formation of the final rule. DEPARTMENT OF DEFENSE List of Subjects in 48 CFR Part 208 236.570 [Amended] Defense Acquisition Regulations I Government procurement. 3. Section 236.570 is amended in System paragraph (b)(5) by removing ‘‘236.213– Michele P. Peterson, 70’’ and adding in its place ‘‘236.213’’. Editor, Defense Acquisition Regulations 48 CFR Parts 208, 236, and 252 System. PART 252—SOLICITATION I Therefore, 48 CFR part 208 is Defense Federal Acquisition PROVISIONS AND CONTRACT amended as follows: Regulation Supplement; Technical CLAUSES Amendments PART 208—REQUIRED SOURCES OF 252.235–7003 [Amended] SUPPLIES AND SERVICES AGENCY: Defense Acquisition I 4. Section 252.235–7003 is amended Regulations System, Department of I in Alternate I as follows: 1. The authority citation for 48 CFR Defense (DoD). I a. By revising the Alternate I date to part 208 continues to read as follows: ACTION: Final rule. read ‘‘(AUG 2008)’’; and Authority: 41 U.S.C. 421 and 48 CFR I b. In the introductory text and in Chapter 1. SUMMARY: DoD is making technical paragraph (c) by removing ‘‘Application I 2. Subpart 208.6 is added to read as amendments to the Defense Federal for Frequency Authorization’’ and follows: Acquisition Regulation Supplement adding in its place ‘‘Application for (DFARS) to update a subpart heading, a Equipment Frequency Allocation’’. Subpart 208.6—Acquisition From cross-reference, and a form title. [FR Doc. E8–18492 Filed 8–11–08; 8:45 am] Federal Prison Industries, Inc. DATES: Effective Date: August 12, 2008. BILLING CODE 5001–08–P 208.602–70 Acquisition of items for which FOR FURTHER INFORMATION CONTACT: Ms. FPI has a significant market share. Michele Peterson, Defense Acquisition (a) Scope. This subsection Regulations System, OUSD (AT&L) DEPARTMENT OF DEFENSE implements Section 827 of the National DPAP (DARS), IMD 3D139, 3062 Defense Acquisition Regulations Defense Authorization Act for Fiscal Defense Pentagon, Washington, DC System Year 2008 (Pub. L. 110–181). 20301–3062. Telephone 703–602–0311; (b) Definition. Item for which FPI has facsimile 703–602–7887. 48 CFR Parts 209, 217, and 246 a significant market share, as used in SUPPLEMENTARY INFORMATION: this subsection, means an item for RIN 0750–AF86 which FPI’s share of the DoD market for This final rule amends DFARS text as the federal supply class including that follows: Defense Federal Acquisition item is greater than 5 percent, as Æ Subpart 208.7. Updates the subpart Regulation Supplement; Ship Critical determined by DoD in consultation with heading for consistency with the Safety Items (DFARS Case 2007–D016) heading of the corresponding Federal the Office of Federal Procurement AGENCY: Defense Acquisition Policy. A list of the federal supply Acquisition Regulation subpart. Æ Regulations System, Department of classes of items for which FPI has a 236.570. Updates a cross-reference. Defense (DoD). significant market share is maintained at Æ 252.235–7003. Updates Alternate I ACTION: Final rule. http://www.acq.osd.mil/dpap/cpic/cp/ to reflect the current title of DD Form _ _ specific policy areas.html# 1494. SUMMARY: DoD has adopted as final, federal_prison. without change, an interim rule (c) Policy. List of Subjects in 48 CFR Parts 208, 236, and 252 amending the Defense Federal (1) When acquiring an item for which Acquisition Regulation Supplement FPI has a significant market share— Government procurement. (DFARS) to implement Section 130 of (i) Acquire the item using— the National Defense Authorization Act (A) Competitive procedures (e.g., the Michele P. Peterson, for Fiscal Year 2007. Section 130 procedures in FAR 6.102, the set-aside Editor, Defense Acquisition Regulations requires DoD to establish a quality procedures in FAR Subpart 19.5, or System. control policy for the procurement, competition conducted in accordance I Therefore, 48 CFR parts 208, 236, and modification, repair, and overhaul of with FAR Part 13); or (B) The fair opportunity procedures in 252 are amended as follows: ship critical safety items. FAR 16.505, if placing an order under I 1. The authority citation for 48 CFR DATES: Effective Date: August 12, 2008. a multiple award delivery-order parts 208, 236, and 252 continues to FOR FURTHER INFORMATION CONTACT: Mr. contract; and read as follows: Michael Benavides, Defense Acquisition (ii) Include FPI in the solicitation Authority: 41 U.S.C. 421 and 48 CFR Regulations System, OUSD (AT&L) process, consider a timely offer from Chapter 1. DPAP (DARS), IMD 3D139, 3062

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Defense Pentagon, Washington, DC Flexibility Act, 5 U.S.C. 601, et seq., Defense Pentagon, Washington, DC 20301–3062. Telephone 703–602–1302; because the rule primarily relates to 20301–3062. Telephone 703–602–0328; facsimile 703–602–7887. Please cite internal DoD responsibilities for facsimile 703–602–7887. Please cite DFARS Case 2007–D016. ensuring quality control of ship critical DFARS Case 2007–D023. SUPPLEMENTARY INFORMATION: safety items. In addition, the Navy already has implemented stringent SUPPLEMENTARY INFORMATION: A. Background quality control programs with regard to A. Background DoD published an interim rule at 73 ship critical safety items. FR 1826 on January 10, 2008, to DoD published an interim DFARS C. Paperwork Reduction Act implement Section 130 of the National rule at 73 FR 4115 on January 24, 2008, Defense Authorization Act for Fiscal The Paperwork Reduction Act does to reflect increased dollar thresholds for Year 2007 (Pub. L. 109–364). Section not apply, because the rule does not application of the trade agreements. 130 requires DoD to prescribe in impose any information collection Every two years, the trade agreement regulations a quality control policy for requirements that require the approval thresholds are escalated according to a the procurement of ship critical safety of the Office of Management and Budget pre-determined formula set forth in the items and the modification, repair, and under 44 U.S.C. 3501, et seq. agreements. overhaul of those items. The interim rule amended DFARS 209.270–1 List of Subjects in 48 CFR Parts 209, DoD received no comments on the through 209.270–4 and related text to 217, and 246 interim rule. Therefore, DoD has address quality control of ship critical Government procurement. adopted the interim rule as a final rule safety items. without change. Michele P. Peterson, DoD received one comment on the This rule was not subject to Office of interim rule. The respondent stated that Editor, Defense Acquisition Regulations System. Management and Budget review under DoD contracting personnel have Executive Order 12866, dated misinterpreted the term ‘‘certificate of Interim Rule Adopted as Final Without September 30, 1993. conformance,’’ as used in DFARS Change 246.504 with regard to limitation on its Accordingly, the interim rule B. Regulatory Flexibility Act use, to mean a manufacturer’s certificate amending 48 CFR parts 209, 217, and that its products conform to quality DoD certifies that this final rule will 246, which was published at 73 FR 1826 requirements. This misinterpretation not have a significant economic impact on January 10, 2008, is adopted as a has led buying office quality on a substantial number of small entities final rule without change. representatives to take a position that within the meaning of the Regulatory products presented for inspection at [FR Doc. E8–18510 Filed 8–11–08; 8:45 am] Flexibility Act, 5 U.S.C. 601, et seq., source, or ‘‘origin,’’ are not acceptable if BILLING CODE 5001–08–P because the trade agreement threshold presented with a corresponding changes are designed to keep pace with manufacturer’s certificate of inflation and thus maintain the status conformance (to its quality DEPARTMENT OF DEFENSE quo. requirements). The intent of the DFARS term is to refer to approval given under Defense Acquisition Regulations C. Paperwork Reduction Act the clause at FAR 52.246–15, Certificate System This rule affects the certification and of Conformance, which enables a DoD information collection requirements in quality assurance specialist to allow a 48 CFR Part 225 the provisions at DFARS 252.225–7020 contractor to ship items without RIN 0750–AF89 inspection under certain circumstances. and 252.225–7035, currently approved Therefore, the respondent Defense Federal Acquisition under Office of Management and Budget recommended that DFARS 246.504 be Regulation Supplement; Trade Control Number 0704–0229. The clarified by adding a reference to the Agreements—New Thresholds (DFARS impact, however, is negligible. The clause at FAR 52.246–15. Case 2007–D023) dollar threshold changes are in line with DoD does not believe the clarification inflation and maintain the status quo. AGENCY: Defense Acquisition is necessary. The text at DFARS 246.504 Regulations System, Department of List of Subjects in 48 CFR Part 225 must be read in conjunction with the Defense (DoD). corresponding text at FAR 46.504, Government procurement. which specifies the appropriate ACTION: Final rule. Michele P. Peterson, conditions for use of a certificate of SUMMARY: DoD has adopted as final, conformance and includes a reference to without change, an interim rule Editor, Defense Acquisition Regulations System. the prescription for the clause at FAR amending the Defense Federal 52.246–15. Therefore, DoD has adopted Acquisition Regulation Supplement Interim Rule Adopted as Final Without the interim rule as a final rule without (DFARS) to incorporate increased dollar Change change. thresholds for application of the World This rule was not subject to Office of Trade Organization Government I Accordingly, the interim rule Management and Budget review under Procurement Agreement and the Free amending 48 CFR part 225, which was Executive Order 12866, dated Trade Agreements, as determined by the September 30, 1993. published at 73 FR 4115 on January 24, United States Trade Representative. 2008, is adopted as a final rule without B. Regulatory Flexibility Act DATES: Effective Date: August 12, 2008. change. DoD certifies that this final rule will FOR FURTHER INFORMATION CONTACT: Ms. [FR Doc. E8–18501 Filed 8–11–08; 8:45 am] not have a significant economic impact Amy Williams, Defense Acquisition BILLING CODE 5001–08–P on a substantial number of small entities Regulations System, OUSD (AT&L) within the meaning of the Regulatory DPAP (DARS), IMD 3D139, 3062

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DEPARTMENT OF DEFENSE respondents submitted comments on the within the original part number (i.e., proposed rule. A discussion of the UID Type 2)? Defense Acquisition Regulations comments is provided below. (2) Can the vendor enter the original System 1. Comment: ‘‘Type designation’’ part number in the WAWF form (or should be added to the list of direct entry to the Registry) when it 48 CFR Part 252 information to be reported by the does not use UID Type 2 (e.g., using UID RIN 0750–AF73 contractor, in paragraph (d) of the Type 1, ESN, VIN)? WAWF will allow clause, and a definition of ‘‘type data entry of the original part number Defense Federal Acquisition designation’’ should be added to the when any UID type is used, including Regulation Supplement; Item clause. ESN, VIN, GRAI, GIAI, etc. Identification and Valuation Clause DoD Response: DoD does not believe DoD Response: DoD does not believe Update (DFARS Case 2007–D007) it is necessary to address type clarification is necessary in the contract designation in the contract clause. clause. The original part number must AGENCY: Defense Acquisition Contractors are required to report Item be submitted to the IUID Registry when Regulations System, Department of Unique Identification (IUID) data serialization is unique within the part Defense (DoD). elements through use of the Wide Area number (i.e., it is a component of the ACTION: Final rule. WorkFlow (WAWF) Material Inspection Unique Item Identifier (UII)). It is permissible to submit the original part SUMMARY: DoD has issued a final rule and Receiving Report or by direct submission to the DoD IUID Registry number when not required by the clause amending the Defense Federal (i.e., it is not a component of the UII). Acquisition Regulation Supplement using electronic XML, flat files, or user- defined formats. The WAWF Material WAWF will allow the entry of the (DFARS) to update and clarify original part number with IUID types requirements for unique identification Inspection and Receiving Report presently does not have the capability to other than UID Type 2. and valuation of items delivered under 4. Comment: Clarification is needed report the Mark Content data elements, DoD contracts. The rule revises the with regard to the word ‘‘original.’’ For which include type designation. applicable contract clause to reflect the example, a vendor will be delivering an current requirements. Therefore, relatively few items will have item with a company part number of DATES: Effective Date: August 12, 2008. a type designation assigned. However, 123ABC–005. The item has evolved over FOR FURTHER INFORMATION CONTACT: Mr. when required to do so, contractors can the years; the true original part number Michael Benavides, Defense Acquisition report type designation and other was 123ABC–001. At the time the UII is Regulations System, OUSD (AT&L) relevant Mark Content data elements assigned to the asset, the UID original DPAP (DARS), IMD 3D139, 3062 using the ‘‘Guidelines for Registering part number is the company’s current Defense Pentagon, Washington, DC Government Serialization, Type part number as recorded in its 20301–3062. Telephone 703–602–1302; Designation and Ownership of Major configuration management system. That facsimile 703–602–7887. Please cite End Items, Assemblies and is, for an item delivered today, the UID DFARS Case 2007–D007. Subassemblies and Capital Equipment original part number would be 123ABC– in the IUID Registry’’ at http:// SUPPLEMENTARY INFORMATION: 005, not 123ABC–001. If this is correct, www.acq.osd.mil/dpap/pdi/uid/ the definition of ‘‘original part number’’ A. Background guides.html. should be clarified. The contract clause at DFARS 2. Comment: The clause should DoD Response: DoD does not believe 252.211–7003, Item Identification and include more clarification of the IUID the clarification is necessary. The rule Valuation, requires unique data elements. For the most part, defines ‘‘original part number’’ as a identification for all delivered items for clarification is needed for vendors that combination of numbers or letters which the Government’s unit use WAWF to create a Material assigned by the enterprise at item acquisition cost is $5,000 or more, and Inspection and Receiving Report and creation to a class of items with the for other items designated by the enter IUID data on the WAWF UID data same form, fit, function, and interface. Government. In addition, the clause entry forms. The key to the meaning of ‘‘original part requires identification of the DoD Response: The clause refers number’’ is ‘‘* * * at item creation to Government’s unit acquisition cost for vendors to the data submission a class of items with the same form, fit, all delivered items, and provides procedures at http://www.acq.osd.mil/ function, and interface.’’ Thus, the instructions to contractors regarding the dpap/pdi/uid/ original part number used in a UII identification and valuation processes. data_submission_information.html, Construct #2 must be that part number This final rule updates and clarifies which has descriptions of the data assigned to the class of items with the the requirements of the clause at DFARS elements and how to submit them. It is same form, fit, function, and interface 252.211–7003. The changes include: not necessary to repeat these procedures that the UII item has. For new items Update of references to standards and in the contract clause. (i.e., the items covered by this rule) the other documents; clarification of the 3. Comment: With regard to the part number of the delivered item will definition of unique item identifier; requirement for ‘‘original part number be the original part number. specifically addressing the DoD (if there is serialization within the 5. Comment: Can a lot or batch recognized unique identification original part number),’’ vendors are number be entered if UID Type 2 is not equivalent, where applicable; confused as to whether they can enter used? WAWF allows entry of both the clarification of data submission the delivered item’s part number when original part number and lot/batch requirements for end items and UID Type 1 is the construct used (UID number when UID Type 2 is chosen. embedded items; clarification of Type 1 is concatenated Issuing Agency Should this be allowed? If not, the requirements for inclusion of the clause Code + Enterprise Identifier + Serial clause should state that only the original in subcontracts; and update of Number). The clause should address the part number or lot/batch number may be referenced Internet addresses. following: used. DoD published a proposed rule at 72 (1) Is the original part number only DoD Response: The clause requires FR 42367 on August 2, 2007. Two provided when there is serialization that the part, lot, or batch number be

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used. As stated in the DoD Guide to it as the cost incurred by DoD when a I c. By revising paragraphs (c) through Uniquely Identifying Items, Appendix part number changes. The clause, the (g); and C, Business Rule #13, available at IUID software manual, and WAWF I d. In Alternate I, by revising the http://www.acq.osd.mil/dpap/pdi/uid/ should be consistent, and the DFARS Alternate I date and paragraph (d) to guides.html, data elements not required clause should include the value added read as follows: to construct the concatenated UII shall because of a part number change. 252.211–7003 Item Identification and remain discrete but may be contained DoD Response: The cost captured by Valuation. within the same mark or media as the the IUID Registry is the unit acquisition * * * * * UII-required elements, as long as all the cost at the time of delivery of the item. data elements contained in the mark or Any additional cost added to the item ITEM IDENTIFICATION AND media are properly identified with a after delivery is determined in the VALUATION (AUG 2008) data qualifier. The UII data elements military equipment valuation process. should appear first in the sequence. (a) * * * DoD will revise the Software User’s DoD recognized unique identification This means that a lot number can be Manual to remove the phrase ‘‘the value equivalent means a unique identification included in the data matrix as long as added to an item when it is updated’’, method that is in commercial use and has the data qualifier used to define it is not since that is determined by the military been recognized by DoD. All DoD recognized one that is used for a UII data element. equipment valuation rules. unique identification equivalents are listed at In the case of a lot number, the data This rule was not subject to Office of http://www.acq.osd.mil/dpap/pdi/uid/ iuid_equivalents.html. qualifiers that can be used in the UII Management and Budget review under construct are the data identifier ‘‘1T’’ or Executive Order 12866, dated * * * * * the text element identifiers ‘‘LOT’’, September 30, 1993. Issuing agency means an organization ‘‘LTN’’, or ‘‘BII’’. These data qualifiers responsible for assigning a non-repeatable cannot be used to describe an additional B. Regulatory Flexibility Act identifier to an enterprise (i.e., Dun & data element not part of the Construct Bradstreet’s Data Universal Numbering DoD certifies that this final rule will System (DUNS) Number, GS1 Company #2 UII when the original part number is not have a significant economic impact Prefix, or Defense Logistics Information used in the UII. The data identifier for on a substantial number of small entities System (DLIS) Commercial and Government current lot number ‘‘30T’’ can be used within the meaning of the Regulatory Entity (CAGE) Code). to describe the lot number when either Flexibility Act, 5 U.S.C. 601, et seq., * * * * * ‘‘1P’’ or ‘‘1T’’ is used in the UII because the rule does not significantly Unique item identifier means a set of data Construct #2. There is no other data change requirements relating to the elements marked on items that is globally qualifier for current lot number other identification and valuation of items unique and unambiguous. The term includes than ‘‘30T’’. delivered under DoD contracts. The rule a concatenated unique item identifier or a 6. Comment: The clause should DoD recognized unique identification updates and clarifies existing equivalent. provide a clear definition of ‘‘current requirements. part number’’ and should clarify when Unique item identifier type means a a current part number must be reported C. Paperwork Reduction Act designator to indicate which method of uniquely identifying a part has been used. and submitted. The Paperwork Reduction Act does The current list of accepted unique item DoD Response: MIL–STD–130N, not apply, because the rule does not identifier types is maintained at http:// Table IV, UII construct business rules impose any information collection www.acq.osd.mil/dpap/pdi/uid/ and supplemental data, states that ‘‘In _ requirements that require the approval uii types.html. instances where the part number of the Office of Management and Budget * * * * * changes with new configurations (also under 44 U.S.C. 3501, et seq. (c) Unique item identifier. known as part number roll), the current (1) The Contractor shall provide a unique part number shall be included on the List of Subjects in 48 CFR Part 252 item identifier for the following: item for traceability purposes and may (i) All delivered items for which the Government procurement. be included as a separate data element.’’ Government’s unit acquisition cost is $5,000 For new items (i.e., the items covered by Michele P. Peterson, or more. (ii) The following items for which the this rule), the part number of the Editor, Defense Acquisition Regulations delivered item will be the current part Government’s unit acquisition cost is less System. than $5,000: number as well as the original part I Therefore, 48 CFR part 252 is number. amended as follows: Contract line, 7. Comment: The clause does not subline, or Item description mention the increase in value to an asset PART 252—SOLICITATION exhibit line item No. because of a change in the current part PROVISIONS AND CONTRACT number. In WAWF, this value is called CLAUSES the ‘‘current part cost.’’ In the IUID Software User’s Manual Version 3.4, it I 1. The authority citation for 48 CFR is called ‘‘acquisition value’’ (not to be part 252 continues to read as follows: confused with acquisition cost). The Authority: 41 U.S.C. 421 and 48 CFR Manual states that acquisition value is Chapter 1. the cost incurred by DoD when a part (iii) Subassemblies, components, and parts number changes, the value added to an I 2. Section 252.211–7003 is amended embedded within delivered items as __ item when it is updated. The IUID Flat as follows: specified in Attachment Number . File Specification, Version 2, June 19, I a. By revising the clause date; (2) The unique item identifier and the I component data elements of the DoD unique 2007, defines ‘‘acquisition value’’ as the b. In paragraph (a), by revising the item identification shall not change over the cost incurred by DoD when the part definitions of ‘‘DoD recognized unique life of the item. number changes. The IUID XML Data identification equivalent’’, ‘‘Issuing (3) Data syntax and semantics of unique Submission Guide calls this value agency’’, ‘‘Unique item identifier’’, and item identifiers. The Contractor shall ensure ‘‘current acquisition value’’ and defines ‘‘Unique item identifier type’’; that—

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(i) The encoded data elements (except (6) Lot or batch number (if there is DEPARTMENT OF COMMERCE issuing agency code) of the unique item serialization within the lot or batch number). identifier are marked on the item using one (7) Current part number (optional and only National Oceanic and Atmospheric of the following three types of data qualifiers, if not the same as the original part number). Administration as determined by the Contractor: (8) Current part number effective date (A) Application Identifiers (AIs) (Format (optional and only if current part number is 50 CFR Part 679 Indicator 05 of ISO/IEC International used). Standard 15434), in accordance with ISO/IEC (9) Serial number (if concatenated unique [Docket No. 071106671–8010–02] International Standard 15418, Information item identifier is used). Technology—EAN/UCC Application RIN 0648–XJ66 Identifiers and Fact Data Identifiers and (10) Government’s unit acquisition cost. Maintenance and ANSI MH 10.8.2 Data (11) Unit of measure. Fisheries of the Exclusive Economic Identifier and Application Identifier (e) For embedded subassemblies, Zone Off Alaska; Shallow-Water Standard. components, and parts that require DoD Species Fishery by Vessels Using (B) Data Identifiers (DIs) (Format Indicator unique item identification under paragraph Trawl Gear in the Gulf of Alaska 06 of ISO/IEC International Standard 15434), (c)(1)(iii) of this clause, the Contractor shall in accordance with ISO/IEC International report as part of, or associated with, the AGENCY: National Marine Fisheries Standard 15418, Information Technology— Material Inspection and Receiving Report Service (NMFS), National Oceanic and EAN/UCC Application Identifiers and Fact specified elsewhere in this contract, the Atmospheric Administration (NOAA), Data Identifiers and Maintenance and ANSI following information: Commerce. MH 10.8.2 Data Identifier and Application (1) Unique item identifier of the parent ACTION: Temporary rule; closure. Identifier Standard. item under paragraph (c)(1) of this clause that (C) Text Element Identifiers (TEIs) (Format contains the embedded subassembly, Indicator 12 of ISO/IEC International SUMMARY: NMFS is prohibiting directed component, or part. Standard 15434), in accordance with the Air fishing for species that comprise the Transport Association Common Support Data (2) Unique item identifier of the embedded shallow-water species fishery by vessels Dictionary; and subassembly, component, or part. using trawl gear in the Gulf of Alaska (3) Unique item identifier type.** (ii) The encoded data elements of the (GOA). This action is necessary because (4) Issuing agency code (if concatenated unique item identifier conform to the transfer the third seasonal apportionment of the structure, syntax, and coding of messages and unique item identifier is used).** data formats specified for Format Indicators (5) Enterprise identifier (if concatenated 2008 Pacific halibut bycatch allowance 05, 06, and 12 in ISO/IEC International unique item identifier is used).** specified for the shallow-water species Standard 15434, Information Technology— (6) Original part number (if there is fishery in the GOA has been reached. Transfer Syntax for High Capacity Automatic serialization within the original part DATES: Effective 1200 hrs, Alaska local Data Capture Media. number).** time (A.l.t.), August 7, 2008, through (4) Unique item identifier. (7) Lot or batch number (if there is 1200 hrs, A.l.t., September 1, 2008. (i) The Contractor shall— serialization within the lot or batch (A) Determine whether to— FOR FURTHER INFORMATION CONTACT: number).** Jennifer Hogan, 907–586–7228. (1) Serialize within the enterprise (8) Current part number (optional and only identifier; if not the same as the original part SUPPLEMENTARY INFORMATION: NMFS (2) Serialize within the part, lot, or batch number).** manages the groundfish fishery in the number; or (9) Current part number effective date GOA exclusive economic zone (3) Use a DoD recognized unique according to the Fishery Management identification equivalent; and (optional and only if current part number is (B) Place the data elements of the unique used).** Plan for Groundfish of the Gulf of item identifier (enterprise identifier; serial (10) Serial number (if concatenated unique Alaska (FMP) prepared by the North number; DoD recognized unique item identifier is used).** Pacific Fishery Management Council identification equivalent; and for (11) Description. under authority of the Magnuson- serialization within the part, lot, or batch ** Once per item. Stevens Fishery Conservation and number only: original part, lot, or batch (f) The Contractor shall submit the Management Act. Regulations governing number) on items requiring marking by information required by paragraphs (d) and fishing by U.S. vessels in accordance paragraph (c)(1) of this clause, based on the (e) of this clause in accordance with the data with the FMP appear at subpart H of 50 criteria provided in the version of MIL–STD– 130, Identification Marking of U.S. Military submission procedures at http:// CFR part 600 and 50 CFR part 679. www.acq.osd.mil/dpap/pdi/uid/ The third seasonal apportionment of Property, cited in the contract Schedule. _ _ (ii) The issuing agency code— data submission information.html. the 2008 Pacific halibut bycatch (A) Shall not be placed on the item; and (g) Subcontracts. If the Contractor acquires allowance specified for the shallow- (B) Shall be derived from the data qualifier by subcontract, any item(s) for which unique water species fishery in the GOA is 200 for the enterprise identifier. item identification is required in accordance metric tons as established by the 2008 (d) For each item that requires unique item with paragraph (c)(1) of this clause, the and 2009 harvest specifications for identification under paragraph (c)(1)(i) or (ii) Contractor shall include this clause, groundfish of the GOA (73 FR 10562, of this clause, in addition to the information including this paragraph (g), in the February 27, 2008), for the period 1200 provided as part of the Material Inspection applicable subcontract(s). and Receiving Report specified elsewhere in hrs, A.l.t., July 1, 2008, through 1200 this contract, the Contractor shall report at (End of clause) hrs, A.l.t., September 1, 2008. the time of delivery, either as part of, or In accordance with § 679.21(d)(7)(i), associated with, the Material Inspection and Alternate I (AUG 2008) the Administrator, Alaska Region, Receiving Report, the following information: * * * * * NMFS, has determined that the third (1) Unique item identifier. (d) The Contractor shall submit the seasonal apportionment of the 2008 (2) Unique item identifier type. information required by paragraph (c) of this Pacific halibut bycatch allowance (3) Issuing agency code (if concatenated clause in accordance with the data specified for the trawl shallow-water unique item identifier is used). submission procedures at http:// species fishery in the GOA has been (4) Enterprise identifier (if concatenated www.acq.osd.mil/dpap/pdi/uid/ unique item identifier is used). reached. Consequently, NMFS is data_submission_information.html. (5) Original part number (if there is prohibiting directed fishing for the serialization within the original part [FR Doc. E8–18502 Filed 8–11–08; 8:45 am] shallow-water species fishery by vessels number). BILLING CODE 5001–08–P using trawl gear in the GOA. The

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species and species groups that Classification public comment because the most comprise the shallow-water species recent, relevant data only became fishery are pollock, Pacific cod, shallow- This action responds to the best available as of August 6, 2008. water flatfish, flathead sole, Atka available information recently obtained The AA also finds good cause to mackerel, skates and ‘‘other species.’’ from the fishery. The Assistant waive the 30-day delay in the effective This inseason action does not apply to Administrator for Fisheries, NOAA date of this action under 5 U.S.C. (AA), finds good cause to waive the fishing for pollock by vessels using 553(d)(3). This finding is based upon requirement to provide prior notice and pelagic trawl gear in those portions of the reasons provided above for waiver of opportunity for public comment the GOA open to directed fishing for prior notice and opportunity for public pursuant to the authority set forth at 5 pollock. This inseason action does not comment. U.S.C. 553(b)(B) as such requirement is This action is required by § 679.21 apply to vessels fishing under a impracticable and contrary to the public cooperative quota permit in the and is exempt from review under interest. This requirement is Executive Order 12866. cooperative fishery in the Rockfish Pilot impracticable and contrary to the public Authority: 16 U.S.C. 1801 et seq. Program for the Central GOA. interest as it would prevent NMFS from After the effective date of this closure responding to the most recent fisheries Dated: August 6, 2008. the maximum retainable amounts at data in a timely fashion and would James P. Burgess § 679.20(e) and (f) apply at any time delay the closure of the shallow-water Acting Director, Office of Sustainable during a trip. species fishery by vessels using trawl Fisheries, National Marine Fisheries Service. gear in the GOA. NMFS was unable to [FR Doc. E8–18605 Filed 8–7–08; 12:36 pm] publish a notice providing time for BILLING CODE 3510–22–S

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Proposed Rules Federal Register Vol. 73, No. 156

Tuesday, August 12, 2008

This section of the FEDERAL REGISTER not sustain limit load, and consequent SUPPLEMENTARY INFORMATION: contains notices to the public of the proposed loss of structural integrity of the wing. Comments Invited issuance of rules and regulations. The DATES: We must receive comments on purpose of these notices is to give interested this proposed AD by September 26, We invite you to send any written persons an opportunity to participate in the relevant data, views, or arguments about rule making prior to the adoption of the final 2008. this proposed AD. Send your comments rules. ADDRESSES: You may send comments by to an address listed under the any of the following methods: • Federal eRulemaking Portal: Go to ADDRESSES section. Include ‘‘Docket No. DEPARTMENT OF TRANSPORTATION http://www.regulations.gov. Follow the FAA–2008–0858; Directorate Identifier instructions for submitting comments. 2008–NM–054–AD’’ at the beginning of Federal Aviation Administration • Fax: 202–493–2251. your comments. We specifically invite • Mail: U.S. Department of comments on the overall regulatory, 14 CFR Part 39 Transportation, Docket Operations, M– economic, environmental, and energy 30, West Building Ground Floor, Room aspects of this proposed AD. We will [Docket No. FAA–2008–0858; Directorate W12–140, 1200 New Jersey Avenue, SE., consider all comments received by the Identifier 2008–NM–054–AD] Washington, DC 20590. closing date and may amend this • Hand Delivery: U.S. Department of proposed AD because of those RIN 2120–AA64 Transportation, Docket Operations, M– comments. Airworthiness Directives; McDonnell 30, West Building Ground Floor, Room We will post all comments we Douglas Model DC–8–11, DC–8–12, W12–140, 1200 New Jersey Avenue, SE., receive, without change, to http:// DC–8–21, DC–8–31, DC–8–32, DC–8– Washington, DC 20590, between 9 a.m. www.regulations.gov, including any 33, DC–8–41, DC–8–42, and DC–8–43 and 5 p.m., Monday through Friday, personal information you provide. We Airplanes; Model DC–8–50 Series except Federal holidays. will also post a report summarizing each Airplanes; Model DC–8F–54 and DC– For service information identified in substantive verbal contact we receive 8F–55 Airplanes; Model DC–8–60 this AD, contact Boeing Commercial about this proposed AD. Airplanes, Long Beach Division, 3855 Series Airplanes; Model DC–8–60F Discussion Series Airplanes; Model DC–8–70 Lakewood Boulevard, Long Beach, Series Airplanes; and Model DC–8–70F California 90846, Attention: Data and We have received numerous reports of Series Airplanes Service Management, Dept. C1–L5A cracks in the skins and stringers at the (D800–0024). end fasteners common to the stringer AGENCY: Federal Aviation end fittings at station Xw = 408 and Xw Examining the AD Docket Administration (FAA), DOT. = ¥408 wing splice joints. Results of an ACTION: Notice of proposed rulemaking You may examine the AD docket on investigation conducted by Boeing (NPRM). the Internet at http:// Engineering revealed the cracks were www.regulations.gov; or in person at the due to fatigue. The area where the SUMMARY: We propose to adopt a new Docket Management Facility between 9 cracks were found is identified as a airworthiness directive (AD) for all a.m. and 5 p.m., Monday through principal structural element (PSE). The McDonnell Douglas airplanes identified Friday, except Federal holidays. The AD earliest cracks were discovered at above. This proposed AD would require docket contains this proposed AD, the 21,519 total flight cycles, and 58,935 repetitive inspections of the lower skin regulatory evaluation, any comments total flight hours. The cracks were and stringers at stations Xw = 408 and received, and other information. The discovered by visual inspections and Xw = ¥408 and corrective actions if street address for the Docket Office findings of fuel leaks. In addition to necessary. This proposed AD results (telephone 800–647–5527) is in the unscheduled maintenance for repair of from reports of cracks in the skins and ADDRESSES section. Comments will be the PSE, this condition, if not corrected, stringers at the end fasteners common to available in the AD docket shortly after could result in wing structure that might the stringer end fittings at station Xw = receipt. not sustain limit load, and consequent 408 and Xw = ¥408 wing splice joints. FOR FURTHER INFORMATION CONTACT: Dara loss of structural integrity of the wing. We are proposing this AD to detect and Albouyeh, Aerospace Engineer, Relevant Service Information correct fatigue cracking in the skins and Airframe Branch, ANM–120L, FAA, Los stringers at the end fasteners common to Angeles Aircraft Certification Office, We have reviewed Boeing Alert the stringer end fittings at a certain 3960 Paramount Boulevard, Lakewood, Service Bulletin DC8–57A102, dated station and wing splice joints, which California 90712–4137; telephone (562) February 12, 2008. The service bulletin could result in wing structure that might 627–5222; fax (562) 627–5210. describes the following procedures.

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DESCRIBED ACTIONS AND COMPLIANCE TIMES

Condition Action Compliance times

Initial inspection for all airplanes ...... Do initial high frequency eddy current (HFEC) Before the accumulation of 20,000 total flight inspection of the lower wing skin or string- cycles, or within 1,500 flight cycles or 2 ers at the affected fastener hole areas— years after the date of the service bulletin, stations Xw = 408 and Xw = ¥408, string- whichever occurs latest. ers 51 to 64 (for sequence 101, inspection sequence 1, inspection method 01; or se- quence 103, inspection sequence 1, inspec- tion method 03), or a visual inspection of any accessible area along the cross section of the stringer in the area of the affected fastener holes (for sequence 102, inspec- tion sequence 1, inspection method 02). Condition 1: No cracks at any of the locations— Repeat the HFEC or visual inspection, as ap- Intervals not to exceed 600 flight cycles after and prior inspection was done by external plicable. doing the external skin eddy current inspec- skin eddy current inspection as given in se- tion. quence 103. Condition 1: No cracks at any of the locations— Repeat the HFEC or visual inspection, as ap- Intervals not to exceed 1,200 flight cycles prior inspection was done by external skin plicable. after doing the external skin eddy current eddy current inspection as given in sequence inspection and internal stringer inspection. 103—and—internal stringer inspection as given in sequence 101 or 102 is done. Condition 2: Skin cracks less than 3.7 inches Repair crack and repeat the applicable in- Before further flight (repair only). long in wing skin at stringer end fittings. spection specified for Condition 2, as appli- cable. Condition 2: Skin cracks less than 3.7 inches Repeat the HFEC or visual inspection, as ap- Intervals not to exceed 600 flight cycles after long in wing skin at stringer end fittings— plicable. doing the external skin eddy current inspec- and prior inspection was done by external tion. skin eddy current inspection as given in se- quence 103. Condition 2: Skin cracks less than 3.7 inches Repeat the HFEC or visual inspection, as ap- Intervals not to exceed 1,200 flight cycles long in wing skin at stringer end fittings— plicable. after doing the external skin eddy current and prior inspection was done by external inspection and internal stringer inspection. skin eddy current inspection as given in se- quence 103—and—internal stringer inspec- tion as given in sequence 101 or 102 is done. Condition 3: Skin cracks greater than 3.7 Contact Boeing for repair instructions ...... Before further flight. inches at stringer end fittings. Condition 4: Stringer cracks at stringer end fit- Repair crack and repeat the applicable in- Before further flight (repair only). tings. spection specified for Condition 4, as appli- cable. Condition 4: Stringer cracks at stringer end fit- Repeat the HFEC or visual inspection, as ap- Repeat at intervals not to exceed 600 flight tings—and prior inspection was done by ex- plicable. cycles after doing the external skin eddy ternal skin eddy current inspection as given current inspection. in sequence 103. Condition 4: Stringer cracks at stringer end fit- Repeat the HFEC or visual inspection, as ap- Repeat at intervals not to exceed 1,200 flight tings—and prior inspection was done by ex- plicable. cycles after doing the external skin eddy ternal skin eddy current inspection as given current inspection and internal stringer in- in sequence 103—and—internal stringer in- spection. spection as given in sequence 101 or 102 is done. Condition 5: Cracks at more than two adjacent Contact Boeing for repair instructions ...... Before further flight. stringers.

FAA’s Determination and Requirements Between the Proposed AD and the that have been approved by an of This Proposed AD Service Bulletin.’’ Authorized Representative for the Boeing Commercial Airplanes We are proposing this AD because we Difference Between the Proposed AD and the Service Bulletin Delegation Option Authorization evaluated all relevant information and Organization whom we have authorized determined the unsafe condition The service bulletin specifies to to make those findings. described previously is likely to exist or contact the manufacturer for develop in other products of the(se) instructions on how to repair certain Costs of Compliance same type design(s). This proposed AD conditions, but this proposed AD would We estimate that this proposed AD would require accomplishing the require repairing those conditions in would affect 87 airplanes of U.S. actions specified in the service one of the following ways: • registry. The following table provides information described previously, Using a method that we approve; or • Using data that meet the the estimated costs for U.S. operators to except as discussed under ‘‘Difference certification basis of the airplane, and comply with this proposed AD.

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ESTIMATED COSTS

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

Inspection ...... 6 $80 $0 $480, per inspection cycle 87 $41,760, per inspection cycle.

Authority for This Rulemaking the FAA proposes to amend 14 CFR part actions, by accomplishing all applicable Title 49 of the United States Code 39 as follows: actions specified in the Accomplishment Instructions of the service bulletin, except as specifies the FAA’s authority to issue PART 39—AIRWORTHINESS provided by paragraph (h) of this AD. Do all rules on aviation safety. Subtitle I, DIRECTIVES corrective actions before further flight, in section 106, describes the authority of accordance with the service bulletin. the FAA Administrator. ‘‘Subtitle VII: 1. The authority citation for part 39 Thereafter, repeat the inspections at the Aviation Programs,’’ describes in more continues to read as follows: applicable intervals specified in paragraph detail the scope of the Agency’s Authority: 49 U.S.C. 106(g), 40113, 44701. 1.E. of the service bulletin. authority. (g) Where Boeing Alert Service Bulletin We are issuing this rulemaking under § 39.13 [Amended] DC8–57A102, dated February 12, 2008, the authority described in ‘‘Subtitle VII, 2. The FAA amends § 39.13 by adding specifies a compliance time after the date on Part A, Subpart III, Section 44701: the following new AD: the service bulletin, this AD requires General requirements.’’ Under that McDonnell Douglas: Docket No. FAA–2008– compliance within the specified compliance section, Congress charges the FAA with 0858; Directorate Identifier 2008–NM– time after the effective date of this AD. promoting safe flight of civil aircraft in 054–AD. (h) If any cracking is found during any air commerce by prescribing regulations inspection required by this AD, and Boeing Comments Due Date for practices, methods, and procedures Alert Service Bulletin DC8–57A102, dated the Administrator finds necessary for (a) We must receive comments by February 12, 2008, specifies to contact safety in air commerce. This regulation September 26, 2008. Boeing for appropriate action: Before further is within the scope of that authority Affected ADs flight, repair the cracking using a method because it addresses an unsafe condition (b) None. approved in accordance with the procedures that is likely to exist or develop on specified in paragraph (i) of this AD. Applicability products identified in this rulemaking Alternative Methods of Compliance action. (c) This AD applies to all McDonnell (AMOCs) Douglas Model DC–8–11, DC–8–12, DC–8– Regulatory Findings 21, DC–8–31, DC–8–32, DC–8–33, DC–8–41, (i)(1) The Manager, Los Angeles Aircraft We determined that this proposed AD DC–8–42, DC–8–43, DC–8–51, DC–8–52, DC– Certification Office (ACO), FAA, ATTN: Dara would not have federalism implications 8–53, DC–8–55, DC–8F–54, DC–8F–55, DC– Albouyeh, Aerospace Engineer, Airframe under Executive Order 13132. This 8–61, DC–8–62, DC–8–63, DC–8–61F, DC–8– Branch, ANM–120L, 3960 Paramount proposed AD would not have a 62F, DC–8–63F, DC–8–71, DC–8–72, DC–8– Boulevard, Lakewood, California 90712– 73, DC–8–71F, DC–8–72F, and DC–8–73F substantial direct effect on the States, on 4137; telephone (562) 627–5222; fax (562) airplanes; certificated in any category. 627–5210; has the authority to approve the relationship between the national Unsafe Condition AMOCs for this AD, if requested using the Government and the States, or on the procedures found in 14 CFR 39.19. distribution of power and (d) This AD results from reports of cracks (2) To request a different method of in the skins and stringers at the end fasteners responsibilities among the various compliance or a different compliance time common to the stringer end fittings at levels of government. for this AD, follow the procedures in 14 CFR For the reasons discussed above, I stations Xw = 408 and Xw = ¥408 wing splice joints. We are issuing this AD to detect 39.19. Before using any approved AMOC on certify this proposed regulation: any airplane to which the AMOC applies, 1. Is not a ‘‘significant regulatory and correct fatigue cracking in the skins and stringers at the end fasteners common to the notify your appropriate principal inspector action’’ under Executive Order 12866, (PI) in the FAA Flight Standards District 2. Is not a ‘‘significant rule’’ under the stringer end fittings at a certain station and wing splice joints, which could result in Office (FSDO), or lacking a PI, your local DOT Regulatory Policies and Procedures wing structure that might not sustain limit FSDO. (44 FR 11034, February 26, 1979), and load, and consequent loss of structural (3) An AMOC that provides an acceptable 3. Will not have a significant integrity of the wing. level of safety may be used for any repair economic impact, positive or negative, required by this AD, if it is approved by an Compliance on a substantial number of small entities Authorized Representative for the Boeing under the criteria of the Regulatory (e) Comply with this AD within the Commercial Airplanes Delegation Option Flexibility Act. compliance times specified, unless already Authorization Organization who has been You can find our regulatory done. authorized by the Manager, Los Angeles evaluation and the estimated costs of Repetitive Inspections and Corrective ACO, to make those findings. For a repair compliance in the AD Docket. Actions method to be approved, the repair must meet the certification basis of the airplane and 14 List of Subjects in 14 CFR Part 39 (f) At the times specified in paragraph 1.E., ‘‘Compliance,’’ of Boeing Alert Service CFR 25.571, Amendment 45, and the Air transportation, Aircraft, Aviation Bulletin DC8–57A102, dated February 12, approval must specifically refer to this AD. safety, Safety. 2008, except as provided by paragraph (g) of (4) Accomplishing the requirements of this AD is an acceptable AMOC with the The Proposed Amendment this AD: Do the applicable inspections for fatigue cracking of the lower skin and requirements of paragraph (b) of AD 93–01– Accordingly, under the authority stringers at stations Xw = 408 and Xw = 15, amendment 39–8469, for those areas of delegated to me by the Administrator, ¥408, and do all applicable corrective principal structural element 57.08.037/038.

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Issued in Renton, Washington, on July 31, encourages commenters to submit published a final rule to clarify and 2008. comments electronically. Electronic explain the various types of requests for Ali Bahrami, submission of comments allows the HUD documents and testimony by HUD Manager, Transport Airplane Directorate, commenter maximum time to prepare employees that are intended to be Aircraft Certification Service. and submit a comment, ensures timely covered by HUD’s document production [FR Doc. E8–18560 Filed 8–11–08; 8:45 am] receipt by HUD, and enables HUD to and testimony approval regulations. The BILLING CODE 4910–13–P make them immediately available to the final rule revised subparts C and D to public. Comments submitted describe the procedures to be followed electronically through the by a party in making a demand to HUD DEPARTMENT OF HOUSING AND www.regulations.gov Web site can be for documents or testimony, and to URBAN DEVELOPMENT viewed by other commenters and explain the standards followed by HUD interested members of the public. in determining whether production or 24 CFR Part 15 Commenters should follow the testimony should be permitted. A [Docket No. FR–5206–P–01] instructions provided on that site to technical correction to the final rule was submit comments electronically. published on September 20, 2007 (72 FR RIN 2501–AD39 Note: To receive consideration as public 53876). Public Access to HUD Records Under comments, comments must be submitted II. This Proposed Rule—Proposed through one of the two methods specified Amendments to Part 15 the Freedom of Information Act (FOIA) above. Again, all submissions must refer to and Production of Material or the docket number and title of the rule. No After implementing the revised Provision of Testimony by HUD Facsimile Comments. Facsimile (FAX) procedures for consideration of Employees: Revisions to Policies and comments are not acceptable. demands for documents or testimony, Practices Regarding Subpoenas and Public Inspection of Public HUD has determined that additional Other Demands for Testimony Comments. All comments and changes are necessary to ensure the AGENCY: Office of the Secretary, HUD. communications submitted to HUD will careful and efficient processing of all such demands. The revisions proposed ACTION: Proposed rule. be available, without charge, for public inspection and copying between 8 a.m. to be made to HUD’s regulations at 24 SUMMARY: This proposed rule would and 5 p.m. weekdays at the above CFR part 15 are as follows: modify HUD’s policies and practices address. Due to security measures at the Terminology regarding responses to subpoenas and HUD Headquarters building, an advance other demands for testimony of HUD appointment to review the public This proposed rule would amend employees, or for production of comments must be scheduled by calling § 15.2 to add, in alphabetical order, the documents by HUD. This proposed rule the Regulations Division at 202–402– terms ‘‘Appropriate Associate General would delegate authority to additional 3055 (this is not a toll-free number). Counsel,’’ ‘‘Appropriate Regional officials within HUD’s Office of General Individuals with speech or hearing Counsel,’’ and ‘‘Authorized Approving Counsel and would revise the criteria impairments may access this number Official’’ to the list of definitions. used to evaluate such demands. Finally, via TTY by calling the Federal Technical Changes this rule would eliminate unnecessary Information Relay Service at 1–800– This proposed rule would correct provisions covering HUD’s response to 877–8339. Copies of all comments outdated references to Web sites in demands in cases in which the United submitted are available for inspection §§ 15.102(b) and 15.103(c). This States is a party to the case in which and downloading at proposed rule would also make testimony or documents are requested. www.regulations.gov. technical changes to Appendix A of part DATES: Comment Due Date: October 14, FOR FURTHER INFORMATION CONTACT: 15 by directing the public to HUD’s Web 2008. Nancy Christopher, Associate General site to update the location information ADDRESSES: Interested persons are Counsel for Litigation, Office of of HUD FOIA Reading Rooms and by invited to submit comments regarding Litigation, Office of General Counsel, providing the public with the contact this proposed rule to the Regulations Department of Housing and Urban information of HUD’s Regional Counsel. Division, Office of General Counsel, Development, 451 Seventh Street, SW., Department of Housing and Urban Room 10258, Washington, DC 20410– Purpose and Scope Development, 451 Seventh Street, SW., 0500; telephone number 202–708–0300 This proposed rule would amend Room 10276, Washington, DC 20410– (this is not a toll-free telephone § 15.201 by providing guidance to 0500. Communications must refer to the number). Persons with hearing or persons engaged in private litigation, to above docket number and title. There speech impairments may access this which the United States is not a party, are two methods for submitting public number via TTY by calling the toll-free on the procedures to be followed when comments. All submissions must refer Federal Information Relay Service at 1– making a demand for documents or to the above docket number and title. 800–877–8339. testimony on HUD. This proposed rule 1. Submission of Comments by Mail. SUPPLEMENTARY INFORMATION: would provide that HUD’s regulations Comments may be submitted by mail to in subpart C do not create any I. Background the Regulations Division, Office of affirmative right or benefit, substantive General Counsel, Department of HUD’s regulations at 24 CFR part 15 or procedural, that would be enforceable Housing and Urban Development, 451 describe the policies and procedures against HUD. Seventh Street, SW., Room 10276, governing public access to HUD records Washington, DC 20410–0500. under the Freedom of Information Act Production of Material or Provision of 2. Electronic Submission of (FOIA) (5 U.S.C. 552) and the policies Testimony in Response to Demands in Comments. Interested persons may and procedures governing the Legal Proceedings Among Private submit comments electronically through production of material or provision of Litigants the Federal eRulemaking Portal at testimony by HUD employees. On This proposed rule would amend www.regulations.gov. HUD strongly February 26, 2007 (72 FR 8580), HUD §§ 15.202 through 15.206 by outlining

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the procedures for making a demand for new § 15.305, to address the production III. Findings and Certifications production of material or provision of of material or provision of testimony in Paperwork Reduction Act testimony to HUD, and by delegating response to demands in legal authority to officials at the Associate proceedings in which the United States The proposed information collection General Counsel, Regional Counsel, and is a party. The proposed rule would requirements contained in this rule have Authorized Approving Official level to prohibit the production of material or been submitted to the Office of consider and approve demands for testimony, unless the prior approval of Management and Budget (OMB) for testimony or for documents. These the attorney representing the United review under the Paperwork Reduction officials are in the best position to States has been obtained. The proposed Act of 1995 (44 U.S.C. 3501–3520). evaluate the demands for testimony or rule would require the employee to documents and have previously been Under this Act, an agency may not immediately notify the Appropriate authorized to consider such demands conduct or sponsor, and a person is not through a delegation of authority. Associate General Counsel or required to respond to, a collection of Additionally, this proposed rule would Appropriate Regional Counsel of the information, unless the collection modify the criteria used to consider demand, and consideration of such displays a valid control number. demands in order to allow for more demands would be within the purview The public reporting burden for this efficient processing of these demands of the attorney representing the United collection of information is estimated to and to ensure that all legally cognizable States. Finally, the proposed rule would include the time for reviewing the objections to the release of the permit the Department to respond to instructions, for gathering and preparing information are considered. authorized productions of material or the information required to be included testimony by producing authenticated Production of Material or Provision of in demands, and for completing and copies of the documents, which shall Testimony in Response to Demands in reviewing the information to be Legal Proceedings in Which the United serve to conform to the Federal Rules of provided. Civil Procedure. States Is a Party The following table provides This proposed rule would amend information on the estimated public §§ 15.302 through 15.304, and add a reporting burden:

Responses Information collection Number of per Total annual Hours per Total respondents respondent responses response hours

§§ 15.203 ...... 106 1 106 1.5 159

In accordance with 5 CFR Regulations Division, Office of will meet HUD’s objectives as described 1320.8(d)(1), HUD is soliciting Legislation and Regulations, Office of in the preamble to this rule. comments from members of the public General Counsel, Department of Environmental Impact and affected agencies concerning the Housing and Urban Development, proposed collection of information to: 451 Seventh Street, SW., Room 10276, This proposed rule does not direct, (1) Evaluate whether the proposed Washington, DC 20410–0500. provide for assistance or loan and collection of information is necessary mortgage insurance for, or otherwise for the proper performance of the Regulatory Flexibility Act govern or regulate, real property functions of the agency, including The Regulatory Flexibility Act (RFA) acquisition, disposition, leasing, whether the information will have (5 U.S.C. 601 et seq.) generally requires rehabilitation, alteration, demolition, or practical utility; an agency to conduct a regulatory new construction, or establish, revise, or (2) Evaluate the accuracy of the flexibility analysis of any rule subject to provide for standards for construction or agency’s estimate of the burden of the notice and subject to comment construction materials, manufactured proposed collection of information; rulemaking requirements, unless the housing, or occupancy. Accordingly, (3) Enhance the quality, utility, and agency certifies that the rule will not under 24 CFR 50.19(c)(1), this proposed clarity of the information to be have a significant economic impact on rule is categorically excluded from the collected; and a substantial number of small entities. requirements of the National (4) Minimize the burden of the The regulatory amendments that would Environmental Policy Act (42 U.S.C. collection of information on those who be made by this proposed rule are 4321 et seq.). are to respond, including through the procedural and serve to advise on the use of appropriate automated collection process and procedures engaged in by Executive Order 13132, Federalism techniques or other forms of information the Department when producing Executive Order 13132 (entitled technology (e.g., permitting responses to material or providing testimony in ‘‘Federalism’’) prohibits an agency from be submitted electronically). response to demands in legal publishing any rule that has federalism Interested persons are invited to proceedings. implications if the rule either imposes submit comments regarding the Accordingly, the undersigned certifies substantial direct compliance costs on information collection requirements in that this rule will not have a significant state and local governments and is not this proposal. Comments must refer to economic impact on a substantial required by statute, or the rule preempts the proposal by the proposal’s name and number of small entities. state law, unless the agency meets the docket number (FR–5206-P–01) and Notwithstanding HUD’s determination consultation and funding requirements must be sent to: that this rule will not have a significant of section 6 of the Executive Order. This HUD Desk Officer, Office of effect on a substantial number of small proposed rule does not have federalism Management and Budget, New entities, HUD specifically invites implications and does not impose Executive Office Building, comments regarding any less substantial direct compliance costs on Washington, DC 20503; and burdensome alternatives to this rule that state and local governments or preempt

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state law within the meaning of the 3. In § 15.102(b), remove the reference (ii) Whether expert or opinion Executive Order. to http://www.hud.gov/ogc/ testimony will be sought from the bshelf2a.html and, in its place, add a employee; Unfunded Mandates Reform Act reference to http://www.hud.gov. (4) State whether the production of Title II of the Unfunded Mandates 4. In § 15.103(c), remove the reference such material or provision of such Reform Act of 1995 (2 U.S.C. 1531– to http://www.hud.gov/ogc/foiafree.html testimony could reveal classified, 1538) (UMRA) establishes requirements and, in its place, add a reference to confidential, or privileged material; for federal agencies to assess the effects http://www.hud.gov. (5) Summarize the need for and of their regulatory actions on state, 5. Add § 15.201(c) to read as follows: relevance of the material or testimony local, and tribal governments, and on sought in the legal proceeding and the private sector. This proposed rule § 15.201 Purpose and scope. include a copy of the complaint, if does not impose any federal mandates * * * * * available; on any state, local, or tribal government, (c) This subpart also provides (6) State whether the material or or on the private sector, within the guidance to persons engaged in private testimony is available from any other meaning of UMRA. litigation, to which the United States is source and, if so, state all such other sources; List of Subjects in 24 CFR Part 15 not a party, on the procedures to be followed when making a demand for (7) State why no document[s], or Classified information, Courts, documents or testimony on the declaration[s] or affidavit[s], could be Freedom of information, Government Department of Housing and Urban used in lieu of oral testimony that is employees, Reporting and Development. This subpart does not, being sought; recordkeeping requirements. and may not be relied upon to, create (8) Estimate the amount of time the Accordingly, for the reasons any affirmative right or benefit, employee will need in order to prepare discussed in the preamble, HUD substantive or procedural, enforceable for, travel to, and attend the legal proposes to amend 24 CFR part 15 to against HUD. proceeding, as appropriate; read as follows: 6. Revise § 15.202 to read as follows: (9) State why the production of the material or provision of the testimony is PART 15—PUBLIC ACCESS TO HUD § 15.202 Production of material or appropriate under the rules of RECORDS UNDER THE FREEDOM OF provision of testimony prohibited unless procedure governing the legal INFORMATION ACT AND TESTIMONY approved. proceeding for which it is sought (e.g., AND PRODUCTION OF INFORMATION Neither the Department nor any not be unduly burdensome or otherwise BY HUD EMPLOYEES employee of the Department shall inappropriate under the relevant rules 1. The authority citation for part 15 comply with any demand for governing discovery); and (10) Describe how producing such continues to read as follows: production of material or provision of testimony in a legal proceeding among material or providing such testimony Authority: 42 U.S.C. 3535(d). private litigants, unless the prior would affect the interests of the United Subpart A also issued under 5 U.S.C. 552. approval of the Authorized Approving States. Section 15.107 also issued under E.O. (b) If the Department determines that 12958, 60 FR 19825, 3 CFR Comp., p. 333. Official has been obtained in accordance Subparts C and D also issued under 5 with this subpart. This rule does not the requestor has failed to provide the U.S.C. 301. apply to any legal proceeding in which information required by paragraph (a) of an employee may be called to this section, or that the information 2. Amend § 15.2(b) to add, in participate, either through the provided is insufficient to consider the alphabetical order, definitions of the production of documents or the demand in accordance with § 15.204, terms ‘‘Appropriate Associate General provision of testimony, not on official the Department may require that Counsel,’’ ‘‘Appropriate Regional time, as to facts or opinions that are in additional information be provided by Counsel,’’ and ‘‘Authorized Approving no way related to material described in the requestor before the demand is Official,’’ to read as follows: § 15.201. considered. § 15.2 Definitions. 7. Revise § 15.203 to read as follows: (c) Whenever a demand is made upon the Department or an employee of the * * * * * § 15.203 Making a demand for production Department for the production of (b) * * * of material or provision of testimony. Appropriate Associate General material or provision of testimony, the Counsel means the Associate General (a) Any demand made to the employee shall immediately notify the Counsel for Litigation or the Associate Department or an employee of the Appropriate Associate General Counsel General Counsel for HUD Headquarters Department to produce any material or or Appropriate Regional Counsel. employees in those programs for which provide any testimony in a legal 8. Revise § 15.204 to read as follows: the Associate provides legal advice. proceeding among private litigants § 15.204 Consideration of demands for Appropriate Regional Counsel means must: production of material or provision of the Regional Counsel for the Regional (1) Be submitted in writing to the testimony. Office having delegated authority over Department or employee of the (a) The Authorized Approving Official the project or activity with respect to Department, with a copy to the shall determine what material is to be which the information is sought. For Appropriate Associate General Counsel produced or what testimony is to be assistance in identifying the or Appropriate Regional Counsel, no provided, based upon the following Appropriate Regional Counsel, see later than 30 days before the date the standards: Appendix A to this part. material or testimony is required; (1) Expert or opinion material or Authorized Approving Official means (2) State, with particularity, the testimony. In any legal proceeding the Secretary, General Counsel, material or testimony sought; among private litigants, no employee of Appropriate Associate General Counsel, (3) If testimony is requested, state: the Department may produce material or or Appropriate Regional Counsel. (i) The intended use of the testimony, provide testimony as described in * * * * * and § 15.201(a) that is of an expert or

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opinion nature, unless specifically conditions or restrictions may include 803(8) and 902 of the Federal Rules of authorized by the Authorized the following: Evidence and Rule 44(a)(1) of the Approving Official for good cause (1) A requirement that the parties to Federal Rules of Civil Procedure. shown. the legal proceeding obtain a protective (c) If response to a demand is required (2) Factual material or testimony. In order or execute a confidentiality before the determination from the any legal proceeding among private agreement to limit access to, and limit Authorized Approving Official is litigants, no employee of the any further disclosure of, material or received, the U.S. Attorney, Department Department may produce material or testimony; of Justice Attorney, or such other provide testimony as described in (2) A requirement that the requester attorney as may be designated for the § 15.201(a) that is of a factual nature, accept examination of documentary purpose will appear or make such unless specifically authorized by the material on HUD premises in lieu of filings as are necessary to furnish the Authorized Approving Official. The production of copies; court or other authority with a copy of (3) A limitation on the subject areas Authorized Approving Official shall the regulations contained in this subpart of testimony permitted; determine whether any of the following and will inform the court or other (4) A requirement that testimony of a factors are applicable. Such a demand authority that the demand has been, or HUD employee be provided by may either be denied, or conditionally is being, as the case may be, referred for deposition at a location prescribed by granted in accordance with § 15.204(c), prompt consideration. The court or if any such factors are applicable: HUD or by written declaration; (5) A requirement that the parties to other authority shall be requested (i) Producing such material or respectfully to stay the demand pending providing such testimony would violate the legal proceeding agree that a transcript of the permitted testimony be receipt of the requested determination a statute or regulation; from the Authorized Approving Official. (ii) Producing such material or kept under seal or will only be used or providing such testimony would reveal only made available in the particular 10. Revise § 15.206 to read as follows: legal proceeding for which testimony classified, confidential, or privileged § 15.206 Procedure in the event of an material; was demanded; adverse ruling regarding production of (iii) Such material or testimony would (6) A requirement that the requester material or provision of testimony. be irrelevant to the legal proceeding; purchase an extra copy of the transcript If the court or other authority declines (iv) Such material or testimony could of the employee’s testimony from the to stay the demand made in accordance be obtained from any other source; court reporter and provide the with § 15.205(c) pending receipt of the (v) One or more documents, or a Department with a copy at the determination from the Authorized declaration or affidavit, could requester’s expense; or (7) Any other condition or restriction Approving Official, or if the court or reasonably be provided in lieu of oral deemed to be in the best interests of the other authority rules that the demand testimony; United States, including reimbursement must be complied with irrespective of (vi) The amount of employees’ time of costs to the Department. the determination by the Authorized necessary to comply with the demand (d) The determination made with Approving Official not to produce the would be unreasonable; respect to the production of material or material or provide the testimony (vii) Production of the material or provision of testimony pursuant to this demanded or to produce subject to provision of the testimony would not be subpart is within the sole discretion of conditions or restrictions, the employee required under the rules of procedure the Authorized Approving Official and upon whom the demand has been made governing the legal proceeding for shall constitute final agency action from shall, if so directed by an attorney which it is sought (e.g., unduly which no administrative appeal is representing the Department, burdensome or otherwise inappropriate available. respectfully decline to comply with the under the relevant rules governing 9. Revise § 15.205 to read as follows: demand. (United States ex rel. Touhy v. discovery); Ragen, 340 U.S. 462 (1951)). (viii) Producing such material or § 15.205 Method of production of material providing such testimony would or provision of testimony. 11. Revise § 15.302 to read as follows: impede a significant interest of the (a) Where the Authorized Approving § 15.302 Production of material or United States; or Official has authorized the production provision of testimony prohibited unless (ix) The Department has any other of material or provision of testimony, approved. legally cognizable objection to the the Department shall produce such release of such information or testimony material or provide such testimony in Neither the Department nor any in response to a demand. accordance with this section and any employee of the Department shall (b) Once a determination has been conditions imposed upon production of comply with any demand for made, the requester will be notified of material or provision of testimony production of material or provision of the determination. If the demand is pursuant to § 15.204(c). testimony in a legal proceeding in denied, the requestor shall be notified of (b) In any legal proceeding where the which the United States is a party, the reasons for the denial. If the demand Authorized Approving Official has unless the prior approval of the attorney is conditionally approved, the requestor authorized the production of representing the United States has been shall be notified of the conditions that documents, the Department shall obtained in accordance with this have been imposed upon the production respond by producing authenticated subpart. This rule does not apply to any of the material or provision of the copies of the documents, to which the legal proceeding in which an employee testimony demanded, and the reasons seal of the Department has been affixed, may be called to participate, either for the conditional approval of the in accordance with its authentication through the production of documents or demand. procedures. The authentication shall be the provision of testimony, not on (c) The Authorized Approving Official evidence that the documents are true official time, as to facts or opinions that may impose conditions or restrictions copies of documents in the are in no way related to material on the production of any material or Department’s files and shall be described in § 15.301. provision of any testimony. Such sufficient for the purposes of Rules 12. Revise § 15.303 to read as follows:

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§ 15.303 Procedure for review of demands DEPARTMENT OF THE TREASURY Please call 202–927–2400 to make an for production of material or provision of appointment. testimony in any legal proceeding in which Alcohol and Tobacco Tax and Trade the United States is a party. Bureau FOR FURTHER INFORMATION CONTACT: N.A. Sutton, Regulations and Rulings Whenever a demand is made upon the 27 CFR Part 9 Division, Alcohol and Tobacco Tax and Department or an employee of the Trade Bureau, 925 Lakeville St., No. Department for the production of [Notice No. 89; Docket No. TTB–2008–0008] 158, Petaluma, CA 94952; telephone material or provision of testimony, the 415–271–1254. RIN 1513–AB52 employee shall immediately notify the SUPPLEMENTARY INFORMATION: Appropriate Associate General Counsel Proposed Establishment of the Happy Background on Viticultural Areas or Appropriate Regional Counsel. Canyon of Santa Barbara Viticultural 13. Revise § 15.304 to read as follows: Area (2007R–311P) TTB Authority

§ 15.304 Consideration of demands for AGENCY: Alcohol and Tobacco Tax and Section 105(e) of the Federal Alcohol production of material or provision of Trade Bureau, Treasury. Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary testimony. ACTION: Notice of proposed rulemaking. of the Treasury to prescribe regulations Consideration of demands shall be SUMMARY: The Alcohol and Tobacco Tax for the labeling of wine, distilled spirits, within the province of the attorney and Trade Bureau proposes to establish and malt beverages. The FAA Act representing the United States, who may the 23,941-acre ‘‘Happy Canyon of Santa requires that these regulations, among raise any valid objection to the Barbara’’ American viticultural area in other things, prohibit consumer production of material or provision of Santa Barbara County, California. This deception and the use of misleading testimony in response to the demand. area lies within the larger Santa Ynez statements on labels, and ensure that 14. Add § 15.305 to read as follows: Valley viticultural area and the labels provide the consumer with multicounty Central Coast viticultural adequate information as to the identity § 15.305 Method of production of material area. We designate viticultural areas to and quality of the product. The Alcohol or provision of testimony. allow vintners to better describe the and Tobacco Tax and Trade Bureau If the production of material or origin of their wines and to allow (TTB) administers the regulations provision of testimony has been consumers to better identify wines they promulgated under the FAA Act. authorized, the Department may may purchase. We invite comments on Part 4 of the TTB regulations (27 CFR respond by producing authenticated this proposed addition to our part 4) allows the establishment of copies of the documents, to which the regulations. definitive viticultural areas and the use of their names as appellations of origin seal of the Department has been affixed DATES: We must receive written on wine labels and in wine in accordance with its authentication comments on or before October 14, advertisements. Part 9 of the TTB procedures. The authentication shall be 2008. regulations (27 CFR part 9) contains the evidence that the documents are true ADDRESSES: You may send comments on list of approved viticultural areas. copies of documents in the this notice to one of the following Department’s files and shall be addresses: Definition sufficient for the purposes of Rules • http://www.regulations.gov (via the Section 4.25(e)(1)(i) of the TTB 803(8) and 902 of the Federal Rules of online comment form for this notice as regulations (27 CFR 4.25(e)(1)(i)) defines Evidence and Rule 44(a)(1) of the posted within Docket No. TTB–2008– a viticultural area for American wine as Federal Rules of Civil Procedure. 0008 at ‘‘Regulations.gov,’’ the Federal a delimited grape-growing region 15. Revise appendix A to read as e-rulemaking portal); or distinguishable by geographical • follows: Director, Regulations and Rulings features, the boundaries of which have Division, Alcohol and Tobacco Tax and been recognized and defined in part 9 Appendix A to Part 15—Location Trade Bureau, P.O. Box 14412, of the regulations. These designations Information for HUD FOIA Reading Washington, DC 20044–4412. allow vintners and consumers to Rooms and Contact Information for See the Public Participation section of attribute a given quality, reputation, or Regional Counsel this notice for specific instructions and other characteristic of a wine made from requirements for submitting comments, The Department maintains a reading room grapes grown in an area to its in Headquarters and in each of the and for information on how to request geographic origin. The establishment of Secretary’s Representative’s Offices. In a public hearing. viticultural areas allows vintners to addition, each of the Secretary’s You may view copies of this notice, describe more accurately the origin of Representative’s Offices has a Regional selected supporting materials, and any their wines to consumers and helps Counsel. The location and contact comments we receive about this consumers to identify wines they may information for the HUD FOIA Reading proposal at http://www.regulations.gov purchase. Establishment of a viticultural Rooms and for the Regional Counsel can be within Docket No. TTB–2008–0008. A area is neither an approval nor an found in HUD’s Local Office Directory link to that docket is posted on the TTB endorsement by TTB of the wine through HUD’s Internet site at http:// Web site at http://www.ttb.gov/wine/ produced in that area. wine_rulemaking.shtml under Notice www.hud.gov. Requirements No. 89. You also may view copies of this Dated: July 14, 2008. notice, all related petitions, maps and Section 4.25(e)(2) of the TTB Roy A. Bernardi, other supporting materials, and any regulations outlines the procedure for Deputy Secretary. comments we receive about this proposing an American viticultural area [FR Doc. E8–18282 Filed 8–11–08; 8:45 am] proposal by appointment at the TTB and provides that any interested party BILLING CODE 4210–67–P Information Resource Center, 1310 G may petition TTB to establish a grape- Street, NW., Washington, DC 20220. growing region as a viticultural area.

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Section 9.3(b) of the TTB regulations geographical modifier to pinpoint its points to skirt the steep foothills west of requires the petition to include— physical location and avoid potential the Santa Agueda and Figueroa Creeks. • Evidence that the proposed consumer confusion with other According to the petitioner, the viticultural area is locally and/or identical or similar names. After careful northern and northeastern portions of nationally known by the name specified consideration, the petitioner modified the boundary line of the proposed in the petition; the name of the viticultural area petition Happy Canyon of Santa Barbara • Historical or current evidence that to ‘‘Happy Canyon of Santa Barbara.’’ viticultural area are based on the supports setting the boundary of the The petitioner believes that the location of the best grape-growing areas, proposed viticultural area as the proposed Happy Canyon of Santa viable agricultural soils, sparse and petition specifies; Barbara viticultural area name will rocky pine forests, and high elevations. • Evidence relating to the geographic identify the area as a unique grape- Photographs and descriptions of the features, such as climate, soils, growing region for both consumers and landscape in the proposed viticultural elevation, and physical features, that industry members. area tell of the change from green distinguish the proposed viticultural According to the USGS Lake pastures to stony, infertile soils at the area from surrounding areas; Los Padres National Forest to the • Cachuma, Santa Ynez, and Figueroa A description of the specific Mountain maps that the petitioner northeast. The U.S. Department of boundary of the proposed viticultural provided, Happy Canyon is a region that Agriculture, Soil Conservation Service, area, based on features found on United descends in elevation northeast-to- did not map the soils in the national States Geological Survey (USGS) maps; southwest, north and west of Lake forest. However, as shown on the USGS and Cachuma in Santa Barbara County. maps submitted with the petition, • A copy of the appropriate USGS Happy Canyon Road, a light-duty road, elevations north of Happy Canyon rise map(s) with the proposed viticultural meanders through the proposed from 1,200 to 3,200 feet, far exceeding area’s boundary prominently marked. viticultural area. the average 1,200-foot elevation within the proposed viticultural area. Petition for Happy Canyon of Santa A road map of Santa Barbara County The USGS maps show that the eastern Barbara shows that the Happy Canyon area and boundary line of the proposed Happy TTB received a petition from Wes Happy Canyon Road are to the east of Canyon of Santa Barbara viticultural Hagen, Vineyard Manager and the town of Santa Ynez (Automobile area runs, north to south, along the Winemaker at Clos Pepe Vineyards, Club of Southern California, California border of the Los Padres National Lompoc, California, on behalf of Happy State Automobile Association, January Forest, and continues south along the Canyon vintners and grape growers, 2003 edition). The map also shows that dividing line of several land grants. The proposing the establishment of the the Happy Canyon area is within Santa proposed boundary line cuts through ‘‘Happy Canyon of Santa Barbara’’ Barbara County. steep, mountainous terrain where American viticultural area. According to Boundary Evidence elevations are between approximately the petitioner, the proposed viticultural 800 and 3,400 feet. The petitioner area encompasses 23,941 acres, 492 The petitioner documents that the explains that the proposed eastern acres of which are in commercial proposed Happy Canyon of Santa boundary line uses the same line viticulture in 6 vineyards. It is entirely Barbara viticultural area lies in the established in 1983 for the eastern within the Santa Ynez Valley eastern part of the 40-mile-wide Santa border of the Santa Ynez Valley viticultural area (27 CFR 9.54), which in Ynez Valley and the northern part of viticultural area. Local winegrowers in turn is completely within the Santa Barbara County, California. As Happy Canyon assert that the eastern multicounty Central Coast viticultural shown on USGS maps, Happy Canyon boundary line applies equally well to area (27 CFR 9.75). comprises canyon terrain, hills, and the Santa Ynez Valley and the proposed The petitioner states that the river and creek basins to the east and Happy Canyon of Santa Barbara viticulture of the proposed Happy south of the San Rafael Mountains, west viticultural areas. Canyon of Santa Barbara viticultural of Lake Cachuma, and north of the Santa According to the written boundary area, in eastern Santa Ynez Valley, is Ynez River. description in the petition and the distinguishable from that of the rest of The petitioner explains that the USGS maps, the southern boundary line the valley, including the Sta. Rita Hills proposed boundary line of the Happy of the proposed Happy Canyon of Santa viticultural area (27 CFR 9.162), in Canyon of Santa Barbara viticultural Barbara viticultural area coincides with western Santa Ynez Valley. We area was drawn by a local committee of the southern boundary line of the Santa summarize below the supporting viticulturists, consultants, and vintners, Ynez Valley viticultural area along the evidence submitted with the petition. all of whom had formal training in boundary line of the Lake Cachuma geology, geography, and agriculture. The Recreation Area to its intersection with Name Evidence proposed boundary line encompasses a the Santa Ynez River. The proposed According to the petitioner and USGS unique geological and climatic grape- boundary line then follows the Santa maps, the ‘‘Happy Canyon of Santa growing region on the east side of the Ynez River west to its intersection with Barbara’’ name applies to a canyon Santa Ynez Valley viticultural area. The a road, where the boundary line turns located in Santa Barbara County. TTB proposed boundary line skirts the San north. notes that a search of the U.S. Rafael Mountains to the north, the Los The petitioner explains that the Geological Survey Geographical Names Padres National Forest to the east, and committee, in determining the Information System (GNIS) includes ten the Lake Cachuma Recreation Area on southwestern portion of the boundary of hits for ‘‘Happy Canyon,’’ three of portions of the south side, according to the proposed viticultural area, which are in California. The petitioner the written boundary description. The considered only areas that were originally considered Happy Canyon for proposed boundary line, continuing in a traditionally known as Happy Canyon the name of the proposed viticultural clockwise direction, incorporates a and that had similar potential for area. However, based on results of the portion of the Santa Ynez River as the viticulture. GNIS search, TTB determined that the south boundary line, and uses a series The petitioner explains that the Happy Canyon name would require a of straight lines between elevation central and northerly portions of the

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western boundary line of the proposed the western portion of the Santa Ynez stations located in vineyards and Happy Canyon of Santa Barbara Valley have overt differences in climate, maintained by Coastal Vineyard Care viticultural area define the boundaries geological parent material, and soil Associates. The data for the areas to the of grazed, rolling hills and deep canyons drainage patterns. east and south of Happy Canyon were with ridge lines 1,200 to 1,800 feet in retrieved from the Western Regional Climate elevation. According to the written Climate Center (at http:// boundary description and USGS maps, According to the petitioner, of all the www.wrcc.dri.edu/) and the California the rolling foothills of the Santa Agueda grape-growing areas in the Santa Ynez Irrigation Management Information Creek Valley, where cattle graze both Valley, Happy Canyon is the furthest System (at http:// sides of the creek, lie immediately inland and has the warmest climate. It www.cimis.water.ca.gov/cimis/ inside the proposed western boundary is located in the easternmost part of the welcome.jsp), respectively. The line. As the Santa Agueda Creek Valley Santa Ynez Valley, and the daytime petitioner used those data in creating rises to the west, rolling foothills meet highs and nighttime lows in that part of the table below, which compares steep canyons at the western boundary the county vary more in a 24-hour growing degree days, based on the line of the proposed Happy Canyon of period than those in other parts of the Winkler climate classification system, Santa Barbara viticultural area. The valley. At about 12 miles west of the for Happy Canyon and the surrounding petitioner notes that the steepness of the proposed viticultural area, the inland areas; see ‘‘General Viticulture,’’ by terrain to the west and outside of the mountain ranges change direction from Albert J. Winkler, University of proposed boundary line contrasts with west-east to north-south. The north- California Press, 1974. In the Winkler the topography and geology of the south mountain ridge blocks the Pacific system, as a measurement of heat preserved oak scrubland, open rolling coastal breezes, preventing them from accumulation during the growing grazeland, and vineyards to the east, cooling the canyon. As a result, the season, 1 degree day accumulates for inside the proposed boundary line. ridge traps in heat in Happy Canyon each degree Fahrenheit that a day’s during the warmer growing months. mean temperature is above 50 degrees, Distinguishing Features The petition for the Happy Canyon of which is the minimum temperature The petitioner states that the Santa Barbara viticultural area includes required for grapevine growth. The data, distinguishing features of the proposed climatic data for the period 2004–6 in degree days, show that, compared to Happy Canyon of Santa Barbara provided by Kerry Martin of Coastal the Happy Canyon area, areas to the viticultural area are climate, Vineyard Care Associates. Some of the north, south, and west of Happy Canyon topography, drainage, and soils and data for the Happy Canyon area and the average between 5 and 20 percent cooler geology. Happy Canyon, in the eastern areas to the west and north of Happy and the area to the east averages 15 portion of the Santa Ynez Valley, and Canyon were obtained from data percent warmer.

GROWING DEGREE DAYS WITHIN AND OUTSIDE OF HAPPY CANYON, 2004–2006

Location relative to Overall Happy Canyon 2004 2005 2006 average Percent cooler or warmer than Happy Canyon

In Happy Canyon ...... 3,414 3,187 3,419 3,340 Same. North—Los Alamos 3,250 2,700 3,200 3,050 9% cooler. East—Figueroa 3,872 3,721 3,965 3,853 15% warmer. Mountain. South—Santa Bar- 2,795 2,537 2,721 2,684 20% cooler. bara. West—Ballard Can- 3,300 2,950 3,250 3,167 5% cooler. yon.

Topography east direction to a generally north-south topography (‘‘Soil Survey of Northern The petitioner explains that the direction. The proposed viticultural Santa Barbara Area, California,’’ issued topography of the proposed Happy area, located inland, lies along by the United States Department of Canyon of Santa Barbara viticultural mountains and hills with a north-south Agriculture, Soil Conservation Service, area includes varying elevations, rolling orientation. 1972). foothills, and a distinctive southwest Drainage Alluvial soils are at lower elevations drainage. According to the USGS maps, and on bottoms of canyons; upland soils the proposed viticultural area lies on the According to the petitioner, the are at higher elevations of canyons and east side and in the higher elevations of southwest drainage pattern of the on surrounding peaks and hilltops. the Santa Ynez Valley region. Elevations proposed viticultural area is The petitioner explains that based on within the proposed boundary line comparatively unique. To the west of the current soil survey, the soil range from 500 feet in the southwest the proposed boundary line, between characteristics of the proposed Happy corner to 3,430 feet in the northeast Santa Agueda Creek and Figueroa Canyon of Santa Barbara viticultural corner, in the foothills of the San Rafael Mountain Road, the drainage pattern area include green serpentine Range. trends south-southeast. (magnesium silicate hydroxide) parent The petitioner explains that between Soils and Geology material, elevated levels of the Pacific Ocean and the Santa Ynez exchangeable magnesium, lower levels Valley, hills and mountains trend west- According to the current soil survey, of exchangeable sodium, and a high to-east. As the elevation of the Santa the two major soil types in the proposed cation exchange capacity (CEC). High Ynez Valley rises from west to east, the Happy Canyon of Santa Barbara CEC levels, based on the amount of hills and mountains turn from a west- viticultural area are related to positively charged ions in the soils,

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increase the uptake of nutrients by plant The petitioner explains that the soils connection with the proposed Happy roots. in the western portion of the Santa Ynez Canyon of Santa Barbara viticultural The proposed viticultural area Valley viticultural area, compared to the area. The first study details the comprises the Shedd-Santa Lucia-Diablo soils in the proposed Happy Canyon of differences in CEC among soils tested at and Toomes-Climara associations on Santa Barbara viticultural area, have less sites in the proposed viticultural area uplands. The Shedd-Santa Lucia-Diablo magnesium, a significantly lower CEC and in areas immediately southwest and association consists of strongly sloping level, and higher amounts of further west of the proposed boundary to very steep, well drained shaly clay exchangeable sodium. Although line, in the western end of the Santa loams and silty clays. The Toomes- drainage patterns change along the Ynez Valley. The study shows that the Climara association consists of proposed western boundary line, the soils in the proposed viticultural area moderately steep to very steep, soils on both sides of the boundary line have significantly more magnesium and somewhat excessively drained and well are similar. drained clay loams and clays. The Positas-Ballard-Santa Ynez soil an elevated CEC level as compared to The Chamise-Arnold-Crow Hills association is scattered throughout the soils in areas beyond the proposed association is of greater extent in the much of the southern part of the boundary line to the southwest and west western portion of the Santa Ynez proposed Happy Canyon of Santa (see table below). The petitioner also Valley viticultural area, west of the Barbara viticultural area. Sedimentary notes that the levels of calcium and proposed Happy Canyon of Santa rock, unfavorable for viticulture, is sodium in the soils in the Happy Barbara viticultural area. This predominant along the south side of the Canyon are less than half those in the association consists of gently sloping to Santa Ynez River, outside the proposed soils to the southwest and west. very steep, well drained and somewhat boundary line. excessively drained sands to clay loams The petitioner provides the results of on high terraces and uplands. two soil studies conducted in

CATION EXCHANGE CAPACITY (CEC) IN SOILS WITHIN AND OUTSIDE OF HAPPY CANYON [meq/100g=milliequivalents of cations absorbed per 100 grams of soil]

Total CEC in Location Magnesium Calcium Sodium meq/100g

Percent of total CEC

Westerly Vineyard (in Happy Canyon) ...... 74.1 23.1 0.72 32.0 Armour Ranch Road and Hwy 154 ...... (1 mile southwest of Happy Canyon) ...... 34.4 60.0 2.0 12.5 Clos Pepe (in the Sta. Rita Hills viticultural area, in the west end of Santa Ynez Valley) ...... 26.0 61.0 5.0 11.6

The second study that the petitioner away. The study is based on an acreage confirm the differences in total acreage provided examines the differences in table of the soils on approximately and slope of soils in areas on either side soils in the proposed Happy Canyon of 35,000 acres within the proposed of the proposed western boundary line Santa Barbara viticultural area and in viticultural area and on an equal of the Happy Canyon of Santa Barbara canyons outside the boundary line, as number of acres to the west (see ‘‘Soil viticultural area (see table below). far west as Figueroa Mountain Road, Survey of Northern Santa Barbara Area, which is located approximately 4 miles California’’). The results of that study

DOMINANT SOIL MAP UNITS WITHIN AND OUTSIDE OF HAPPY CANYON

Number of map Soil symbol and soil name units/percentage Percentage slope of survey area

Happy Canyon of Santa Barbara (East of Foothills Adjacent to Santa Agueda Creek)

DaF—Diablo silty clay ...... 28/14 30 to 45 percent. SrG3—Shedd silty clay loam ...... 23/12 9 to 30 percent. SdC—Salinas silty clay loam ...... 11/6 2 to 9 percent. ChF—Chamise shaly loam ...... 11/6 15 to 45 percent. SrG—Shedd silty clay loam ...... 11/6 9 to 30 percent.

Figueroa Area (West of Foothills and Santa Agueda Creek to Figueroa Mountain Road)

PtC—Positas fine sandy loam ...... 25/17 2 to 9 percent. ChF—Chamise shaly loam ...... 22/15 15 to 45 percent. PtD—Positas fine sandy loam ...... 13/9 9 to 15 percent. CkF—Chamise clay loam ...... 11/8 30 to 45 percent. SnC—Santa Ynez Gravelly fine sandy loam ...... 11/8 9 to 15 percent.

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According to the petitioner, the For a wine to be eligible to use a currently used brand names. If a results of the soil study above show a viticultural area name as an appellation commenter believes that a conflict will unique geological pattern that justifies of origin or a term of viticultural arise, the comment should describe the placing the western portion of the significance in a brand name, at least 85 nature of that conflict, including any proposed boundary line in the vicinity percent of the wine must be derived anticipated negative economic impact of the Santa Agueda and Figueroa from grapes grown within the area that approval of the proposed Creeks. The results also show that the represented by that name or term, and viticultural area will have on an existing Happy Canyon area comprises a group the wine must meet the other conditions viticultural enterprise. We are also of soils different from those found to the listed in 27 CFR 4.25(e)(3). If the wine interested in receiving suggestions for west. is not eligible to use the viticultural area ways to avoid conflicts, for example by name as an appellation of origin and adopting a modified or different name TTB Determination that name or other term of viticultural for the viticultural area. TTB concludes that this petition to significance appears in the brand name, Submitting Comments establish the 23,941-acre ‘‘Happy then the label is not in compliance and Canyon of Santa Barbara’’ American the bottler must change the brand name You may submit comments on this viticultural area merits consideration and obtain approval of a new label. notice by using one of the following two and public comment as invited in this Similarly, if the viticultural area name methods: notice. or other term of viticultural significance • Federal e-Rulemaking Portal: You Boundary Description appears in another reference on the may send comments via the online label in a misleading manner, the bottler See the narrative boundary comment form posted with this notice would have to obtain approval of a new within Docket No. TTB–2008–0008 on description of the petitioned-for label. Accordingly, if a previously viticultural area in the proposed ‘‘Regulations.gov,’’ the Federal e- approved label uses the name ‘‘Happy rulemaking portal, at http:// regulatory text published at the end of Canyon of Santa Barbara’’ for a wine this notice. www.regulations.gov. A direct link to that does not meet the 85 percent that docket is available under Notice Maps standard, the previously approved label No. 89 on the TTB Web site at http:// will be subject to revocation upon the The petitioner provided the required www.ttb.gov/wine/wine_ effective date of the approval of the maps, and we list them below in the rulemaking.shtml. Supplemental files Happy Canyon of Santa Barbara proposed regulatory text. may be attached to comments submitted viticultural area. via Regulations.gov. For complete Impact on Current Wine Labels Different rules apply if a wine has a instructions on how to use Part 4 of the TTB regulations prohibits brand name containing a viticultural Regulations.gov, visit the site and click any label reference on a wine that area name or other term of viticultural on ‘‘User Guide’’ under ‘‘How to Use indicates or implies an origin other than significance that was used as a brand this Site.’’ the wine’s true place of origin. If we name on a label approved before July 7, • 1986. See 27 CFR 4.39(i)(2) for details. U.S. Mail: You may send comments establish this proposed viticultural area, via postal mail to the Director, its name, ‘‘Happy Canyon of Santa Public Participation Regulations and Rulings Division, Barbara,’’ will be recognized as a name Comments Invited Alcohol and Tobacco Tax and Trade of viticultural significance under 27 Bureau, P.O. Box 14412, Washington, CFR 4.39(i)(3). The text of the proposed We invite comments from interested DC 20044–4412. regulation clarifies this point. members of the public on whether we Please submit your comments by the Consequently, wine bottlers using should establish the proposed closing date shown above in this notice. ‘‘Happy Canyon of Santa Barbara’’ in a viticultural area. We are also interested Your comments must reference Notice brand name, including a trademark, or in receiving comments on the No. 89 and include your name and in another label reference as to the sufficiency and accuracy of the name, mailing address. Your comments also origin of the wine, will have to ensure boundary, climatic, and other required must be made in English, be legible, and that the product is eligible to use the information submitted in support of the be written in language acceptable for viticultural area’s name as an petition. We are also particularly public disclosure. We do not appellation of origin. interested in any comments on whether acknowledge receipt of comments, and On the other hand, we do not believe the evidence regarding name and we consider all comments as originals. that any single part of the proposed distinguishing features is sufficient to viticultural area name standing alone, warrant the establishment of this new If you are commenting on behalf of an such as ‘‘Happy Canyon,’’ would have viticultural area within the existing association, business, or other entity, viticultural significance if the new area Santa Ynez Valley and the larger Central your comment must include the entity’s is established. According to GNIS, the Coast viticultural areas. Please provide name as well as your name and position ‘‘Happy Canyon’’ refers to 10 locations any available specific information in title. If you comment via in 6 States within the United States. support of your comments. Regulations.gov, please enter the TTB believes that a determination of Because of the potential impact of the entity’s name in the ‘‘Organization’’ ‘‘Happy Canyon’’ as a term of establishment of the proposed Happy blank of the online comment form. If viticultural significance would lead to Canyon of Santa Barbara viticultural you comment via postal mail, please consumer and industry confusion and area on wine labels that include the submit your entity’s comment on should be avoided. Accordingly, the words ‘‘Happy Canyon of Santa letterhead. proposed part 9 regulatory text set forth Barbara’’ as discussed above under You may also write to the in this document specifies only the full ‘‘Impact on Current Wine Labels,’’ we Administrator before the comment ‘‘Happy Canyon of Santa Barbara’’ name also are particularly interested in closing date to ask for a public hearing. as a term of viticultural significance for comments regarding whether there will The Administrator reserves the right to purposes of part 4 of the TTB be a conflict between the proposed determine whether to hold a public regulations. viticulturally significant terms and hearing.

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Confidentiality Executive Order 12866. Therefore, it (3) Proceed east, south, and then east, All submitted comments and requires no regulatory assessment. along the boundary line of the Los Padres National Forest, to its attachments are part of the public record Drafting Information and subject to disclosure. Do not intersection with the boundary line of N.A. Sutton of the Regulations and the Can˜ ada de Los Pinos, or College enclose any material in your comments Rulings Division drafted this notice. that you consider to be confidential or Rancho Grant, at the northwest corner of inappropriate for public disclosure. List of Subjects in 27 CFR Part 9 section 28, T7N, R29W; then Wine. (4) Proceed straight south along the Public Disclosure boundary line of the Can˜ ada de Los We will post, and you may view, Proposed Regulatory Amendment Pinos, or College Rancho Grant, crossing copies of this notice, selected For the reasons discussed in the onto the Lake Cachuma map, to its supporting materials, and any online or preamble, we propose to amend title 27, intersection with the 1,074-foot Bitt mailed comments we receive about this chapter 1, part 9, Code of Federal elevation point and the Lake Cachuma proposal within Docket No. TTB–2008– Regulations, as follows: Recreation Area boundary line, section 0008 on the Federal e-rulemaking 17 east boundary line, T6N, R29W; then portal, Regulations.gov, at http:// PART 9—AMERICAN VITICULTURAL (5) Proceed generally southwest along www.regulations.gov. A direct link to AREAS the Lake Cachuma Recreation Area that docket is available on the TTB Web 1. The authority citation for part 9 boundary line to its intersection with site at http://www.ttb.gov/wine/ continues to read as follows: the Santa Ynez River to the west of Lake wine_rulemaking.shtml under Notice Cachuma and Bradbury Dam, T6N, Authority: 27 U.S.C. 205. No. 89. You may also reach the relevant R30W; then docket through the Regulations.gov 2. Subpart C is amended by adding (6) Proceed generally west along the search page at http:// § 9.___to read as follows: Santa Ynez River, crossing onto the www.regulations.gov. For instructions Santa Ynez map, and continuing to its on how to use Regulations.gov, visit the Subpart C—Approved American intersection with California State Road site and click on ‘‘User Guide’’ under Viticultural Areas 154, northwest of BM 533, T6N, R30W; ‘‘How to Use this Site.’’ § 9.___ Happy Canyon of Santa Barbara. then All posted comments will display the (a) Name. The name of the viticultural commenter’s name, organization (if (7) Proceed north-northwest in a area described in this section is ‘‘Happy any), city, and State, and, in the case of straight line 1.2 miles to its intersection Canyon of Santa Barbara’’. For purposes mailed comments, all address with the marked 924-foot elevation of part 4 of this chapter, ‘‘Happy Canyon information, including e-mail addresses. point, T6N, R30W; then of Santa Barbara’’ is a term of We may omit voluminous attachments viticultural significance. (8) Proceed north-northwest in a or material that we consider unsuitable (b) Approved maps. The four United straight line 1.2 miles to its intersection for posting. States Geological Survey 1:24,000 scale with the ‘‘Y’’ in an unimproved road 0.1 You also may view copies of this topographic maps used to determine the mile south of the 800-foot elevation line, notice, all related petitions, maps and boundary of the Happy Canyon of Santa west of Happy Canyon Road, T6N, other supporting materials, and any Barbara viticultural area are titled: R30W; then electronic or mailed comments we (1) Los Olivos, CA, 1995; (9) Proceed north-northwest in a receive about this proposal by (2) Figueroa Mountain, CA, 1995; straight line for 0.5 mile, crossing onto appointment at the TTB Information (3) Lake Cachuma, CA, 1995; and the Los Olivos map, and continuing to Resource Center, 1310 G Street, NW., (4) Santa Ynez, CA, 1995. its intersection with the marked 1,324- Washington, DC 20220. You may also (c) Boundary. The Happy Canyon of foot elevation point, 0.5 mile southwest obtain copies at 20 cents per 8.5- x 11- Santa Barbara viticultural area is located of Bar G O Ranch, T7N, R30W; then inch page. Contact our information in Santa Barbara County, California. The specialist at the above address or by boundary of the Happy Canyon of Santa (10) Proceed north-northwest in a telephone at 202–927–2400 to schedule Barbara viticultural area is as described straight line for 2.5 miles crossing over an appointment or to request copies of below: the marked 1,432-foot elevation point in comments or other materials. (1) The beginning point is on the Los section 9, then continue in a straight Olivos map at the intersection of the line northerly 1.4 miles to its Regulatory Flexibility Act Santa Lucia Ranger District diagonal intersection with the marked 1,721-foot We certify that this proposed line and Figueroa Mountain Road, a elevation point in section 4, T7N, regulation, if adopted, would not have light-duty road, section 27, T8N, R30W. R30W; then a significant economic impact on a From the beginning point, proceed (11) Proceed north in a straight line substantial number of small entities. southeast along the Santa Lucia Ranger 1.4 miles to its intersection with the The proposed regulation imposes no District diagonal line, crossing onto the marked 2,334-foot elevation point, west new reporting, recordkeeping, or other Figueroa Mountain map, and continuing of a meandering unimproved road and administrative requirement. Any benefit east to its intersection with the south of Figueroa Mountain Road, T8N, derived from the use of a viticultural northwest corner of section 6, T7N, R30W; then area name would be the result of a R29W; then (12) Proceed east-northeast in a proprietor’s efforts and consumer (2) Proceed straight south along the straight line, returning to the beginning acceptance of wines from that area. R29W and R30W line, which is a point. Therefore, no regulatory flexibility boundary line of the Los Padres Signed: June 9, 2008. analysis is required. National Forest, to its intersection with the southwest corner of section 18 that John J. Manfreda, Executive Order 12866 coincides with one of the two 90-degree, Administrator. This proposed rule is not a significant southwest corners of the Los Padres [FR Doc. E8–18536 Filed 8–11–08; 8:45 am] regulatory action as defined by National Forest, T7N, R29W; then BILLING CODE 4810–31–P

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DEPARTMENT OF THE TREASURY Division, Alcohol and Tobacco Tax and nationally known by the name specified Trade Bureau, 925 Lakeville St., No. in the petition; Alcohol and Tobacco Tax and Trade 158, Petaluma, CA 94952; telephone • Historical or current evidence that Bureau 415–271–1254. supports setting the boundary of the proposed viticultural area as the SUPPLEMENTARY INFORMATION: 27 CFR Part 9 petition specifies; • Evidence relating to the geographic [Notice No. 87; Docket No. TTB–2008–0006] Background on Viticultural Areas features, such as climate, soils, RIN 1513–AB42 TTB Authority elevation, and physical features, that Section 105(e) of the Federal Alcohol distinguish the proposed viticultural Proposed Establishment of the Lake Administration Act (FAA Act), 27 area from surrounding areas; Chelan Viticultural Area (2007R–103P) U.S.C. 205(e), authorizes the Secretary • A description of the specific AGENCY: Alcohol and Tobacco Tax and of the Treasury to prescribe regulations boundary of the proposed viticultural Trade Bureau, Treasury. for the labeling of wine, distilled spirits, area, based on features found on United States Geological Survey (USGS) maps; ACTION: Notice of proposed rulemaking. and malt beverages. The FAA Act requires that these regulations, among and • SUMMARY: The Alcohol and Tobacco Tax other things, prohibit consumer A copy of the appropriate USGS and Trade Bureau proposes to establish deception and the use of misleading map(s) with the proposed viticultural the 24,040-acre ‘‘Lake Chelan’’ statements on labels, and ensure that area’s boundary prominently marked. American viticultural area in Chelan labels provide the consumer with Lake Chelan Petition County, Washington. It lies within the adequate information as to the identity Alan J. Busacca, PhD, a geologist larger Columbia Valley viticultural area and quality of the product. The Alcohol licensed in Washington State and a in north-central Washington. We and Tobacco Tax and Trade Bureau nationally certified professional soil designate viticultural areas to allow (TTB) administers the regulations scientist with Vinitas Vineyard vintners to better describe the origin of promulgated under the FAA Act. Consultants, submitted a petition on their wines and to allow consumers to Part 4 of the TTB regulations (27 CFR better identify wines they may behalf of the Lake Chelan Wine Growers part 4) allows the establishment of Association to establish the 24,040-acre purchase. We invite comments on this definitive viticultural areas and the use proposed addition to our regulations. Lake Chelan American viticultural area of their names as appellations of origin in north-central Washington. Some of DATES: We must receive written on wine labels and in wine the petition evidence and comments on or before October 14, advertisements. Part 9 of the TTB documentation provided relies on the 2008. regulations (27 CFR part 9) contains the previous research and writings of Dr. ADDRESSES: You may send comments on list of approved viticultural areas. Busacca. Additional petition resources this notice to one of the following Definition include Government-published climatic, addresses: topographic, and soils data, as well as • http://www.regulations.gov (via the Section 4.25(e)(1)(i) of the TTB maps, municipal resources, commercial online comment form for this notice as regulations (27 CFR 4.25(e)(1)(i)) defines publications, personal correspondence, posted within Docket No. TTB–2008– a viticultural area for American wine as and anecdotal information. 0006 at ‘‘Regulations.gov,’’ the Federal a delimited grape-growing region The Lake Chelan Valley lies about 112 e-rulemaking portal); or distinguishable by geographic features, miles east-northeast of Seattle, • Director, Regulations and Rulings the boundaries of which have been according to USGS and commercial Division, Alcohol and Tobacco Tax and recognized and defined in part 9 of the maps. The petitioner explains that the Trade Bureau, P.O. Box 14412, regulations. These designations allow proposed Lake Chelan viticultural area Washington, DC 20044–4412. vintners and consumers to attribute a lies entirely within the large, See the Public Participation section of given quality, reputation, or other established Columbia Valley viticultural this notice for specific instructions and characteristic of a wine made from area (27 CFR 9.74). TTB notes that the requirements for submitting comments, grapes grown in an area to its Lake Chelan region lies to the east of the and for information on how to request geographic origin. The establishment of Puget Sound viticultural area (27 CFR a public hearing. viticultural areas allows vintners to 9.151) and to the north of other You may view copies of this notice, describe more accurately the origin of Washington State viticultural areas. The selected supporting materials, and any their wines to consumers and helps proposed Lake Chelan viticultural area comments we receive about this consumers to identify wines they may also is not adjacent to nor does it proposal at http://www.regulations.gov purchase. Establishment of a viticultural include any portion of any other within Docket No. TTB–2008–0006. A area is neither an approval nor an Washington State viticultural area link to that docket is posted on the TTB endorsement by TTB of the wine except the Columbia Valley viticultural Web site at http://www.ttb.gov/wine/ produced in that area. area. wine_rulemaking.shtml under Notice Requirements The petitioner explains that the No. 87. You also may view copies of this proposed Lake Chelan viticultural area notice, all related petitions, maps and Section 4.25(e)(2) of the TTB includes the southern and eastern other supporting materials, and any regulations outlines the procedure for portions of the large body of water comments we receive about this proposing an American viticultural area known as Lake Chelan and its proposal by appointment at the TTB and provides that any interested party surrounding lands suitable for Information Resource Center, 1310 G may petition TTB to establish a grape- viticulture. According to the petitioner, Street, NW., Washington, DC 20220. growing region as a viticultural area. at the time of the 2006 petition filing Please call 202–927–2400 to make an Section 9.3(b) of the TTB regulations with TTB, the proposed viticultural area appointment. requires the petition to include— included 13 bonded wineries, 140 acres FOR FURTHER INFORMATION CONTACT: N.A. • Evidence that the proposed of vineyards, and another 50 acres to be Sutton, Regulations and Rulings viticultural area is locally and/or planted to grape vines.

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According to the petitioner, Boundary Evidence living on the sunnier south side of the distinguishing features of the proposed According to the petitioner and the lake, planted grape vines on their Lake Chelan viticultural area include its written boundary description, the claimed lands. Two 1905 photographs from the geology, geography, soils, and climate as proposed Lake Chelan viticultural area Chelan County Historical Society show directly influenced by past alpine encompasses the southernmost and grapes growing in the Lake Chelan area. glacial activity of the Cascade region. easternmost 12 miles of the 55-mile-long A photo of grapes on the vine is labeled Lake Chelan Valley is the only valley in lake and surrounding lands. A bedrock ‘‘Black Hamburg Grapes—Lake Chelan.’’ the Cascade Range in Oregon or ridge, with a pinnacle at a 1,526-foot The petitioner explains that the Washington that holds a natural lake of elevation, divides the approximately common name for those grapes is Black its size. The climate of the agricultural 1,200-foot elevation of the south Lake Muscat. The other photo, which shows and viticultural lands surrounding the Chelan region from the 707-foot a little boy sitting on the ground beside lower (eastern) end of the lake is elevation of the Columbia River, grapes hanging heavily from a vine, is strongly moderated by the thermal effect according to USGS maps of the area and labeled ‘‘Lake Chelan Grapes.’’ of the lake on the air temperatures. The the petitioner. Lands to the east and glacier that formed during the last ice The Faletto family continued growing southeast of the proposed viticultural grapes into the early 1900s, according to age and traveled from the Cascade crest area are within the Columbia River to the eastern end of the modern lake an e-mail dated November 22, 2005, airshed and watershed, and have from family member Rich Faletto. Mr. left a defining imprint on the landforms different climates, geology, and soils. of the Lake Chelan Valley. In addition, Faletto stated of his grandfather, ‘‘Old The upper 43 miles of Lake Chelan John was the vintner and winery the petitioner claims that pumice and and its shoreline lie outside of the ash from eruptions of volcanoes in the operator in the valley, producing great proposed viticultural area, according to wine from [grapevines] brought to the Cascade Range, principally Glacier Peak the written boundary description to the west of the proposed viticultural area by a group of Italians.’’ provided in the petition. According to The Chelan and Manson areas, within area, formed soils that are ashier and the petitioner, in the northern lake more pumiceous than those in any other the proposed viticultural area, region the surrounding Cascade Range comprised 154 acres of producing established viticultural area in provides significant downward cold air Washington State. vineyards, according to a November 17, drainage from peaks to valley floor and 1949, newspaper article written by We summarize below the supporting blocks the sun from the adjacent valley evidence submitted with the petition. Harry R. McMullen. According to the lands. The cold air and shade combine article, that year grape growers received Name Evidence with a steep shoreline terrain to create 2 cents a pound, or $40 a ton, from the a region unsuitable for grape growing. Welch Company. The ‘‘Chelan’’ geographic name Additionally, the North Cascades derives from the name that Alexander National Park surrounds the north end Modern Viticulture Ross, an American fur trader, in about of Lake Chelan, and commercial The petitioner states that in 1998, 1824 used to describe the ‘‘Tsill-anes,’’ agricultural development is prohibited Steve Kludt and Bob Christopher a native people living along the south within its borders. replanted apple orchards to grapes shore of Lake Chelan, according to Lands with viticultural potential in within the proposed Lake Chelan ‘‘Chelan County—Thumbnail History,’’ the Lake Chelan Valley area, the viticultural area. Also, in 2000 the Kludt an article from the Washington State petitioner states, are generally at or family opened the first bonded winery Department of Archaeology and Historic below 2,000 feet in elevation. High in the area and in 2001 started selling Preservation, The Online Encyclopedia mountains ridges, beyond the boundary wine. Vineyard production in the Lake of Washington State History at of the proposed Lake Chelan viticultural Chelan region increased from over 90 www.historylink.org. area, rise over 5,000 feet in elevation to acres in 2004 to 140 acres by 2006. The ‘‘Lake Chelan’’ name appears on the north and west and to 3,800 feet to According to the petitioner, 13 bonded the USGS Chelan, Manson, and the south, cradling the Lake Chelan wineries operated in the Lake Chelan Winesap quadrangle maps. The USGS Valley region on three sides, according area as of the 2006 petition submission Chelan map, sections 11 and 12, T27N to the petitioner and USGS maps. The date. and R23N, identifies an area to the petition explains that these high north-northwest of the small town of mountains, which have cold climates Proposed Boundary Line Chelan as the ‘‘Lake Chelan Golf and and forested terrain, are unsuited to The petitioner explains that the Country Club.’’ The DeLorme viticulture. proposed boundary line uses a 2,000- Washington Atlas and Gazetteer foot elevation line and USGS map identifies ‘‘Lake Chelan’’ on page 83, History of Viticulture section lines in conjunction with roads, sections A7, B7, and B8. The American According to the Chelan Valley Mirror mountain peaks, and other map Automobile Association map, Oregon dated May 1, 1947, Urban DeGrassi, a markings in providing a clear, simple Washington State Series, identifies Jesuit priest, spent several years in the perimeter. The proposed Lake Chelan ‘‘Lake Chelan’’ as a long slender lake Lake Chelan region teaching agriculture. viticultural area boundary line includes extending northwest from the North Based on Father DeGrassi’s teachings, in lands adjacent to the southernmost 12 Cascades National Park southeast to the 1881, John and Peter Wapato, Native miles of the lake, according to the Chelan Dam, approximately 2 miles Americans of Chelan Valley, started petition. northwest of the Columbia River. planting fruit eventually including In determining the proposed An article entitled ‘‘Chelan and grapes and cherries. boundary line, the petitioner includes in Stehekin, WA,’’ dated August 12, 2006, According to an article in the August the proposed viticultural area only the on http://www.nwsource.com, a 6, 1891, edition of the Chelan Falls valley areas with a significant ‘‘lake northwest travel and outdoors Web site, Leader, Louis Conti, an Italian effect’’ climate. The lake affects states that Lake Chelan is one of immigrant, owned a 60-acre vineyard in surrounding lands, the petitioner Washington’s favorite summer the Lake Chelan area. The article stated explains, by favorably moderating the recreation areas. that a colony of Italian immigrants, climate, increasing the length of the

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growing season, and reducing the a large natural lake of Lake Chelan’s The region encompassing the frequency of damaging or killing vine size. The lake is the third deepest lake proposed Lake Chelan viticultural area, freezes. The petitioner states that the in the U.S., the petitioner emphasizes. according to the petitioner, includes proposed boundary line excludes from The soils in the valley formed in glacial camel-backed bedrock landforms that the proposed viticultural area the sediments layered below the more the Cascade Range alpine glaciers surrounding mountainous areas and the recent windblown deposition of eroded into the dominantly granitic northern 43 miles of the lake and volcanic pumice and ash. Also, the large bedrock of the Lake Chelan area, lake adjacent lands, all unsuitable for glacial lake acts as a heat reservoir to sediments that the alpine glaciers viticulture. produce a unique climate of deposited, and bedrock that consists of TTB notes that the northeast portion consistently moderated temperatures. Cretaceous-age igneous and older of boundary of the proposed Lake metamorphic rocks. The glaciers Columbia Plateau Geographic Province Chelan viticultural area coincides with crushed bedrock in the Lake Chelan 17 miles of the 2,000-foot boundary line Most Washington vineyards, the region, creating glacial till and outwash of the Columbia Valley viticultural area. petitioner states, lie on the Columbia sediments that have coarse sandy In the original petition, the proposed Plateau geographic province, the textures and that are rich in biotite northeast boundary line incorporated a features of which contrast significantly mica. The glacial lake sediments, silty to series of map section lines and 90- in several important ways from the Lake clayey in texture, include substantive degree turns. After discussions with Chelan Valley in the Cascade Range amounts of quartz and mica. As a result, TTB, the petitioner modified the geographic province. The distinguishing the soil’s deep rooting zone for grape northeast portion of the boundary line features of the Columbia Plateau include vines has distinguishable textures, to coincide with the boundary line of the bedrock of Tertiary-age basaltic mineralogy, and nutrients. the Columbia Valley viticultural area. lavas, sediments derived from The petitioner provides a geologic The petitioner provides an aerial cataclysmic outburst floods of Lake map of the proposed Lake Chelan photo of agriculture within and Missoula, and bench-and-riser viticultural area from the USGS immediately outside of the proposed landforms that the recurrent Missoula Miscellaneous Investigations Series Map Lake Chelan viticultural area. The Floods created through erosion of the I–1661, Geologic Map of the Chelan, 30- planted orchards and vineyards are lavas. The topography varies from near Minute by 60-Minute Quadrangle, clustered on the low, flat elevations moonscapes to megasized gravel bars Washington, accessed online on June adjoining the northern and southern and slackwater terraces. 26, 2006. The map identifies the Cretaceous-age bedrock and the shorelines of the lake. The petitioner The petitioner states that another Quaternary age surface sediments in the explains that viticulture fails to thrive distinguishing feature of the Columbia Lake Chelan Valley area. The outside the proposed boundary line Plateau is the predominant east-west Cretaceous-age units consist of dark, because of high elevations, steep terrain, trending valley-and-ridge system that intrusive igneous tonalites, the cold temperatures, and the absence of a affects the elevation, slope, aspect, heat petitioner explains. TTB notes that moderating lake effect climate. accumulation, winds, and air drainage tonalite is an igneous plutonic Other boundary line considerations of the plateau. Also, plateau elevations (intrusive) rock having greater than 20 include properties of the soil, the vary from 460 feet at the Wahluke Slope percent quartz and quartz diorite with 5 influences of the watershed and airshed, viticultural area (27 CFR 9.192) to 970 the elevations of the surrounding to 20 percent quartz. Also, the feet at the Walla Walla Valley Quaternary-age units consist of glacial mountains, and the steepness of the viticultural area (27 CFR 9.91), a terrain. moraines, terraces, lake deposits, and topography with a significantly lower postglacial landslides and alluvial Distinguishing Features elevation than that of the Lake Chelan sediments. area of the Cascade Range. According to the petitioner, the Cascade Range Geographic Province The separate climates of the Columbia Columbia Plateau geologic history, in The proposed Lake Chelan Plateau viticultural areas share low contrast, stems from the force of a lobe viticultural area, a part of the Cascade winter temperatures with complete vine of the western Canadian ice sheet that Range geographic province, the dormancy and significant fall daytime blocked the Clark Fork River in Idaho petitioner explains, includes distinctive and nighttime temperature variations. and created the huge glacial Lake geology, geography, soils, and climate The viticultural areas of the Columbia Missoula in Montana. When the glacial that contrast to those of the surrounding Plateau lie within the rain shadow of ice dams repeatedly failed, the largest areas. The geology, the petitioner notes, the Cascade Range, and have a drier floods of water ever documented on includes the advance of Cascade alpine climate as compared to western Earth occurred. The floods glaciers that occurred 14,000 to 18,000 Washington. The combination of overwhelmed the Columbia River and years ago. distinguishing features in the flowed across eastern Washington, The Cascade Mountain Range runs viticultural areas on the Columbia eroding channels in the basalt bedrock north-south through Washington and Plateau, the petitioner concludes, and depositing gravel bars in the main Oregon and divides western and eastern creates a unique annual growing season basins and fine sandy and silty Washington, the petitioner explains. that contrasts with the Lake Chelan sediments in the river valleys. The range creates, to the east, a rain Valley region in the Cascade Range shadow that limits precipitation in the geographic province. Geography Lake Chelan Valley and on the Elevations vary from approximately Geology Columbia Plateau in eastern 1,100 feet at lake level to 3,276 feet at Washington. The range protects areas to The petitioner explains that the most an unnamed peak in the northwest its east from Arctic and Pacific winter recent ice-age events of the Earth, portion of the proposed Lake Chelan storms and further moderates climate. 14,000 to 18,000 years ago, played viticultural area, 1.8 miles northwest of Lake Chelan Valley is the only valley significant roles in creating the differing Lake Chelan State Park on the USGS that the Cascade glacier created in geological records within the Cascade Manson quadrangle map. The lower Washington and Oregon and that holds Range and the Columbia Plateau. elevations, which have gently rising

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slopes, are along the southern and of the Lake Chelan Valley at low The combination of moderating summer eastern shoreline of Lake Chelan, as elevations and adjacent surrounding high and winter low temperatures shown on the USGS maps of the region. mountains. The Cascade alpine glaciers creates a suitable environment for both The petitioner explains that the lower created other valleys in the region with viticulture and tree fruit agriculture. lakeside elevations are known for similar landscapes, including camel- According to the petitioner, the strong successful fruit growing. The higher backed topography, and layers of glacial lake effect moderates the air elevations enveloping the Lake Chelan sediment, but not lake basins. Thus, temperatures of planted areas adjacent Valley region generally correlate with only Lake Chelan Valley, in contrast to north and south of the eastern part of steep terrain, as shown on the USGS the other regional glacial valleys, has a the lake. In those areas, the waters of maps of the proposed viticultural area. climate-moderating lake effect. Lake Chelan create a heat reservoir that According to the petitioner, when the Cascade alpine glaciers descended from Climate absorbs warming solar energy in the mountain crests to lower elevations, According to local growers and summer and then reradiates heat energy they created the distinctive U-shaped temperature statistics, a lake effect into cold air in winter. The table below Lake Chelan Valley topography, moderates air temperature extremes in compares the climate in the areas along including the lake depression. The term both summer and winter in the Lake Chelan to that in similar areas ‘‘camel-backed’’ describes the landforms proposed Lake Chelan viticultural area. nearby but without lakes.

CLIMATIC INDICES FOR WINE GRAPES FOR THREE SITES IN WASHINGTON STATE, 1994–2003

Cool climate viticulture Number of Number of Area * Distance from Lake Chelan suitability days a year days a year (miles) index ** <32 °F >95 °F (days)

Lake Chelan ...... 0 ...... 244 89.6 7.1 Methow Valley ...... 30, north ...... 176 147.9 13.6 Wenatchee Valley ...... 30, south ...... 230 102.3 14.1 * Based on data from the National Climate Data Center. ** Number of days between <29 °F in spring and the first temperature <29 °F in fall.

The petitioner uses a cool-climate Fahrenheit, and Methow Valley and regions of Wahluke Slope, Walla Walla, viticultural suitability index (CCVSI) Wenatchee Valley average 14 days a Chelan, East Wenatchee, and Roosevelt. formulated at Cornell University as an year, according to data from the Results, based on cold temperature analytical tool for the Lake Chelan National Climate Data Center included readings, indicated that the Lake Chelan Valley climate. The CCVSI emphasizes with the petition. Fewer hot days in the area averaged a killing freeze once in 17 the impact of temperature moderation Lake Chelan Valley correlate with better years, while the other Washington on viticulture. The petitioner explains fruit quality, since temperatures above viticultural areas studied averaged 6 to that the CCVSI compiles the sum of the 95 degrees shut down most 8 years between vine-killing freezes. days from the last occurrence of 29 photosynthesis in grapes, according to Mr. Sandidge states that Lake Chelan degrees Fahrenheit or lower in spring the petitioner. The Lake Chelan Valley averages a heavy crop loss and a light until the first occurrence of 29 degrees averages only 90 days a year colder than vine loss every 17 years. Also, fall Fahrenheit or lower in fall. The larger 32 degrees Fahrenheit in winter, while temperatures cool more rapidly and total numbers, in days, generally the Methow Valley averages 148 days rains arrive about a week earlier than in correlate to the better viticultural and the Wenatchee Valley averages 102 areas to the south. Mr. Sandidge regions. days. theorizes that while the Lake Chelan For the Lake Chelan Valley region, the Northwest of the proposed viticultural area experiences milder winter CCVSI 10-year average of 244 days is area, temperatures are too low for temperatures, the later spring bud break significantly higher than the glacially viticulture because of cold air drainage relates to the close proximity of the formed Methow Valley in the Cascade from the high Cascades and severe proposed viticultural area to the Range to the north and higher than the shading from steep mountainsides close surrounding mountains. Wanatchee Valley to the south. to the lake. To the east and northeast of Soils In another measure of the lake effect the proposed viticultural area, a ridge on the proposed Lake Chelan holds the lake-affected air masses in the According to the petitioner, the soils viticultural area, the petitioner uses the lake basin. That ridge is used as the of the Lake Chelan Valley include layers annual average number of days with proposed eastern boundary. of glacial debris, sediment from normal temperatures of 32 degrees Fahrenheit To further demonstrate the stream erosion and deposition after the or lower in winter and 95 degrees moderating lake effect, the petitioner glacial age, and airborne volcanic and Fahrenheit or higher in summer. The provides evidence concerning vine- nonvolcanic sediments. The lower parts petitioner compares the climates in Lake killing freezes which, according to the of the deeper soils, 20 to 60 inches Chelan Valley, Methow Valley, and petitioner, occur less frequently in the below the surface, predominantly Wenatchee Valley using this method. proposed Lake Chelan viticultural area formed in glacial sediments. The upper All three valleys are located within 60 than in other viticultural areas in part of the soils formed in a mixture of miles of each other, were created eastern Washington State. Winemaker large amounts of airborne volcanic partially or totally by Cascade alpine Charles Ray Sandidge III, in an October pumice and ash from Glacier Peak and glaciers, and have other similar 2, 2006, e-mail to the petitioner, states very small amounts of loess (wind- geographic features. Lake Chelan Valley that he conducted a study of weather transported material) overlying the averages 7 days a year above 95 degrees data in the period 1934–84 in the glacial sediments. Thus, the soils

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downwind from Glacier Peak and the The soils in Lake Chelan Valley that viticultural area. Eight of these series north Cascades, including the soils in are close to the surface, according to the consist of soils derived from volcanic the proposed Lake Chelan viticultural petitioner, include sand- and fine glass, including ashy, cindery, area, are rich, about 3 to 40 percent by gravel-sized pumice from the volcanic pumiceous, glassy, vitrandic, medial, volume, in volcanic pumice and ash eruption of Glacier Peak to the and amorphic soils, the petitioner from a massive eruption of the Glacier northwest. Soils that have significant explains. Only the Margerum and Peak volcano about 12,000 years ago. amounts of volcanic ash and pumice or Dragoon series are silt loam, which is The petitioner explains that bedrock clays weathered from glass have an common on the Columbia Plateau. The in the proposed Lake Chelan viticultural unusually high available water capacity. information in the soil table below is area consists of Cretaceous-age granitic The petitioner believes that the high from the Official Soil Series rocks and older metamorphic rocks, content of volcanic material in the soils Descriptions accessed on October 18, including amphibolite, schist, and is a significant contributory factor to the biotite gneiss. Glaciers shattered and successful regional viticulture and 2006, at the U.S. Department of crushed the Cascade crystalline pomology over the past 100 years. Agriculture Web site, at: http:// bedrock, creating glacial till and glacial The United States Department of soils.usda.gov/technical/classification/ outwash sediments that include biotite Agriculture, National Cooperative Soil osd/index.html. mica-rich cobbly, bouldery, gravelly, Survey, has identified 11 soil series and coarse sandy materials. within the proposed Lake Chelan

Soil series Soil order Excerpt from official description

Margerum ...... Mollisols ...... Considerable pumice. Chelan ...... Mollisols ...... Volcanic ash and pumice. Springdale ...... Inceptisols ...... Volcanic ash in the upper part. Kartar ...... Inceptisols ...... Volcanic ash in the surface. Entiat ...... Mollisols ...... Volcanic ash. Dinkelman ...... Mollisols ...... A component of volcanic ash. Tyee ...... Mollisols ...... Volcanic ash. Swakane ...... Mollisols ...... Volcanic ash in the upper part. Psuga ...... Spodosols ...... Volcanic ash. Mansonia ...... Mollisols ...... Volcanic ash and pumice. Dragoon ...... Mollisols ...... Volcanic ash.

The petitioner explains that many TTB Determination Chelan’’ viticultural area, and we agricultural soils on the Columbia TTB concludes that this petition to therefore believe that consumers and Plateau are silt loam throughout the soil establish the 24,040-acre Lake Chelan vintners could reasonably attribute the profile, and are unlike those with a high American viticultural area merits quality, reputation, or other content of volcanic pumice and ash in consideration and public comment, as characteristic of wine made from grapes the Lake Chelan area and Cascade invited in this notice. grown in the proposed ‘‘Lake Chelan’’ Range. Also, the mineralogy of the viticultural area to the name ‘‘Chelan’’ Columbia Plateau basalt sediments, Boundary Description itself. Therefore, the proposed part 9 deposited as alluvium derived from See the narrative boundary regulatory text set forth in this basaltic lavas, includes neither quartz description of the petitioned-for document specifies both ‘‘Lake Chelan’’ nor mica, which are commonly found in viticultural area in the proposed and ‘‘Chelan’’ as terms of viticultural the sediments in the Lake Chelan Valley regulatory text published at the end of significance for purposes of part 4 of the area. this notice. TTB regulations. Also see 27 CFR 4.39(i)(3), which provides that a name A sampling of soils taken by the Maps has viticultural significance when so petitioner across the Columbia Plateau The petitioner provided the required determined by a TTB officer. shows that the dominant parent maps, and we list them below in the Consequently, if this proposed text is materials are loess and dunes and have proposed regulatory text. adopted as a final rule, wine bottlers an average content of only 12 percent using ‘‘Lake Chelan’’ or ‘‘Chelan’’ in a volcanic glass. This is substantially Impact on Current Wine Labels brand name, including a trademark, or different from the high glass content of Part 4 of the TTB regulations prohibits in another label reference as to the soils in the proposed viticultural area. any label reference on a wine that origin of the wine, will have to ensure The Pasco and Umatilla Basins, to the indicates or implies an origin other than that the product is eligible to use the south of the proposed viticultural area, the wine’s true place of origin. If we viticultural area’s full name as an were the origins of most of the loess establish this proposed viticultural area, appellation of origin. throughout the Columbia Plateau. Over its name, ‘‘Lake Chelan,’’ will be For a wine to be labeled with a the millennia the Lake Chelan Valley, recognized as a name of viticultural viticultural area name or with a brand outside the path of most of the wind significance under 27 CFR 4.39(i)(3). name that includes a viticultural area transporting the loess, has received only The text of the proposed regulation name or other term specified as having minor deposits of loess. The petitioner clarifies this point. viticultural significance in part 9 of the asserts that the differences in soil In addition, based on the evidence TTB regulations, at least 85 percent of between the Lake Chelan Valley and the submitted, we believe that ‘‘Chelan’’ the wine must be derived from grapes Columbia Plateau impact infiltration standing alone is locally and/or grown within the area represented by and runoff of water, aeration of the soils, nationally known as referring to the that name or other term, and the wine root penetration, and available water region in Washington State must meet the other conditions listed in capacity. encompassed by the proposed ‘‘Lake 27 CFR 4.25(e)(3). If the wine is not

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eligible to use the viticultural area name interested in receiving suggestions for Public Disclosure as an appellation of origin and that ways to avoid conflicts, for example by We will post, and you may view, name or other term of viticultural adopting a modified or different name copies of this notice, selected significance appears in the brand name, for the viticultural area. supporting materials, and any online or then the label is not in compliance and Submitting Comments mailed comments we receive about this the bottler must change the brand name proposal within Docket No. TTB–2008– and obtain approval of a new label. You may submit comments on this 0006 on the Federal e-rulemaking Similarly, if the viticultural area name notice by using one of the following two portal, Regulations.gov, at http:// or other term of viticultural significance methods: www.regulations.gov. A direct link to appears in another reference on the • Federal e-Rulemaking Portal: You that docket is available on the TTB Web label in a misleading manner, the bottler may send comments via the online site at http://www.ttb.gov/wine/ would have to obtain approval of a new comment form posted with this notice wine_rulemaking.shtml under Notice label. Accordingly, if a previously within Docket No. TTB–2008–0006 on No. 87. You may also reach the relevant approved label uses the name ‘‘Lake ‘‘Regulations.gov,’’ the Federal e- docket through the Regulations.gov Chelan’’ or ‘‘Chelan’’ for a wine that rulemaking portal, at http:// search page at http:// does not meet the 85 percent standard, www.regulations.gov. A direct link to www.regulations.gov. For instructions the previously approved label will be that docket is available under Notice on how to use Regulations.gov, visit the subject to revocation, upon the effective No. 87 on the TTB Web site at http:// site and click on ‘‘User Guide’’ under date of the approval of the Lake Chelan www.ttb.gov/wine/ ‘‘How to Use this Site.’’ viticultural area. wine_rulemaking.shtml. Supplemental All posted comments will display the Different rules apply if a wine has a files may be attached to comments commenter’s name, organization (if brand name containing a viticultural submitted via Regulations.gov. For any), city, and State, and, in the case of area name or other term of viticultural complete instructions on how to use mailed comments, all address significance that was used as a brand Regulations.gov, visit the site and click information, including e-mail addresses. name on a label approved before July 7, on ‘‘User Guide’’ under ‘‘How to Use We may omit voluminous attachments 1986. See 27 CFR 4.39(i)(2) for details. this Site.’’ or material that we consider unsuitable Public Participation • U.S. Mail: You may send comments for posting. You also may view copies of this via postal mail to the Director, Comments Invited notice, all related petitions, maps and Regulations and Rulings Division, other supporting materials, and any We invite comments from interested Alcohol and Tobacco Tax and Trade electronic or mailed comments we members of the public on whether we Bureau, P.O. Box 14412, Washington, receive about this proposal by should establish the proposed DC 20044–4412. appointment at the TTB Information viticultural area. We are interested in Please submit your comments by the receiving comments on the sufficiency Resource Center, 1310 G Street, NW., closing date shown above in this notice. Washington, DC 20220. You may also and accuracy of the name, climatic, Your comments must reference Notice boundary, and other required obtain copies at 20 cents per 8.5- x 11- No. 87 and include your name and inch page. Contact our information information submitted in support of the mailing address. Your comments also petition. In addition, we are interested specialist at the above address or by must be made in English, be legible, and telephone at 202–927–2400 to schedule in receiving comments on the proposal be written in language acceptable for to identify ‘‘Lake Chelan’’ and ‘‘Chelan’’ an appointment or to request copies of public disclosure. We do not comments or other materials. as terms of viticultural significance. acknowledge receipt of comments, and Please provide any available specific we consider all comments as originals. Regulatory Flexibility Act information in support of your We certify that this proposed comments. We are also particularly If you are commenting on behalf of an regulation, if adopted, would not have interested in any comments on whether association, business, or other entity, a significant economic impact on a the evidence regarding name and your comment must include the entity’s substantial number of small entities. distinguishing geographical features is name as well as your name and position The proposed regulation imposes no sufficient to warrant the establishment title. If you comment via new reporting, recordkeeping, or other of this new viticultural area within the Regulations.gov, please enter the administrative requirement. Any benefit existing Columbia Valley viticultural entity’s name in the ‘‘Organization’’ derived from the use of a viticultural area. blank of the online comment form. If Because of the potential impact of the you comment via postal mail, please area name would be the result of a establishment of the proposed Lake submit your entity’s comment on proprietor’s efforts and consumer Chelan viticultural area on wine labels letterhead. acceptance of wines from that area. that include the words ‘‘Lake Chelan’’ or You may also write to the Therefore, no regulatory flexibility the word ‘‘Chelan’’ as discussed above Administrator before the comment analysis is required. under Impact on Current Wine Labels, closing date to ask for a public hearing. Executive Order 12866 The Administrator reserves the right to we are particularly interested in This proposed rule is not a significant determine whether to hold a public comments regarding whether there will regulatory action as defined by hearing. be a conflict between the proposed area Executive Order 12866. Therefore, it name and currently used brand names. Confidentiality requires no regulatory assessment. If a commenter believes that a conflict will arise, the comment should describe All submitted comments and Drafting Information the nature of that conflict, including any attachments are part of the public record N.A. Sutton of the Regulations and anticipated negative economic impact and subject to disclosure. Do not Rulings Division drafted this notice. that approval of the proposed enclose any material in your comments viticultural area will have on an existing that you consider to be confidential or List of Subjects in 27 CFR Part 9 viticultural enterprise. We are also inappropriate for public disclosure. Wine.

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Proposed Regulatory Amendment mile due north of BM 1404 at the northeast corner of section 8, T27N/ For the reasons discussed in the intersection of U.S. Route 97 and State R21E; then preamble, we propose to amend title 27, Route 151, T27N/ R23E; then (17) Proceed straight west along the chapter 1, part 9, Code of Federal (3) Proceed in a straight south- north boundary line of section 8 to the Regulations, as follows: southeast line 1.35 miles to its northwest corner of section 8, T27N/ intersection with the section 20 north R21E; then PART 9—AMERICAN VITICULTURAL boundary line and the 1,000-foot (18) Proceed generally north along the AREAS elevation line, T27N/R23E; then east boundary line of section 6, crossing (4) Proceed south-southwest along the onto the Manson map, and continue 1. The authority citation for part 9 1,000-foot contour line to its along the east boundary lines of sections continues to read as follows: intersection with the section 20 south 31 and 30, to the northeast corner of Authority: 27 U.S.C. 205. boundary line, south of Chelan Station section 30, T28N/R21E; then and immediately west of State Route (19) Proceed straight east along the Subpart C—Approved American 151, T27N/R23E; then north boundary lines of sections 29 and Viticultural Areas (5) Proceed straight west along the 28 to the intersection with the east shoreline of Lake Chelan; and 2. Amend subpart C by adding § 9.___ south boundary line of sections 20 and (20) Proceed generally northwest and to read as follows: 19 for 0.75 mile to its intersection with the light-duty Gorge Road, as identified northeast along the east shoreline of § 9.___ Lake Chelan. on the adjoining Chelan map, and the Lake Chelan to the point of beginning. (a) Name. The name of the viticultural penstock flowing to the surge tank, Signed: July 8, 2008. area described in this section is ‘‘Lake T27N/R23E; then John J. Manfreda, Chelan’’. For purposes of part 4 of this (6) Proceed northwest along Gorge Administrator. Road, crossing onto the Chelan map, to chapter, ‘‘Lake Chelan’’ and ‘‘Chelan’’ [FR Doc. E8–18534 Filed 8–11–08; 8:45 am] are terms of viticultural significance. the southeast corner of section 13, BILLING CODE 4810–31–P (b) Approved maps. The five United T27N/R22E; then States Geological Survey 1:24,000 scale (7) Proceed straight west along the topographic maps used to determine the south boundary line of sections 13, 14, DEPARTMENT OF THE TREASURY boundary of the Lake Chelan viticultural 15, 16, 17, and 18, and crossing onto the area are titled: Winesap map in section 18, to its Alcohol and Tobacco Tax and Trade (1) Manson Quadrangle, intersection with the R21E/R22E line, Bureau Washington—Chelan Co., 1968, T27N; then photorevised 1987; (8) Proceed straight north along the 27 CFR Part 9 (2) Cooper Ridge Quadrangle— R21E/R22E line to its intersection with Washington, 1968, photorevised 1987; the south boundary line of section 13 [Notice No. 88; Docket No. TTB–2008–0007] (3) Chelan Quadrangle—Washington, and the 2,440-foot contour line, T27N/ RIN 1513–AB40 1968, photorevised 1987; R21E; then (4) Chelan Falls Quadrangle— (9) Proceed straight west to the Proposed Establishment of the Upper Washington, 1968, photorevised 1981; southwest corner of section 13, T27N/ Mississippi River Valley Viticultural and R21E; then Area (2007R–055P) (5) Winesap Quadrangle— (10) Proceed straight north along the AGENCY: Alcohol and Tobacco Tax and Washington, 1968, photorevised 1987. section 14 east boundary line to the Trade Bureau, Treasury. (c) Boundary. The Lake Chelan northeast corner of section 14, T27N/ viticultural area is located in Chelan R21E; then ACTION: Notice of proposed rulemaking. (11) Proceed straight west along the County, Washington. The boundary of SUMMARY: The Alcohol and Tobacco Tax section 14 north boundary line to the the Lake Chelan viticultural area is as and Trade Bureau proposes to establish northwest corner of section 14, T27N/ described below: the 29,914-square mile ‘‘Upper R21E; then (1) The beginning point is on the Mississippi River Valley’’ American Manson map at the intersection of the (12) Proceed straight north along the viticultural area in portions of southeast east shore of Lake Chelan and the north east boundary line of section 10 for 0.3 Minnesota, southwest Wisconsin, boundary line of section 15, T28N/ mile to its intersection with the 2,520- northwest Illinois, and northeast Iowa. R21E, north of Greens Landing. From foot contour line and a 90-degree turn We designate viticultural areas to allow the beginning point, proceed straight in the Wenatchee National Forest (WNF) vintners to better describe the origin of east 1.6 miles along the northern boundary line, T27N/R21E; then their wines and to allow consumers to boundary line of sections 15 and 4 to its (13) Proceed straight west along the better identify wines they may intersection with the 2,000-foot WNF boundary line 0.3 mile to its purchase. We invite comments on this elevation line, T28N/R21E; then intersection with the 2,600-foot contour proposed addition to our regulations. (2) Follow the meandering 2,000-foot line and a 90-degree turn in the WNF elevation line generally southeast onto boundary line, T27N/R21E; then DATES: We must receive written the Cooper Ridge map, crossing (14) Proceed straight south along the comments on or before October 14, Purtterman Gulch; continue southeast WNF boundary line 0.3 mile to its 2008. onto the Chelan map and follow the intersection with the south boundary ADDRESSES: You may send comments on meandering 2,000-foot elevation line line of section 10, T27N/R21E; then this notice to one of the following onto the Chelan Falls map, over the (15) Proceed straight west along the addresses: Cagle Gulch, and then return to the south boundary lines of sections 10 and • http://www.regulations.gov (via the Chelan map; continue generally 9 to the southeast corner of section 8, online comment form for this notice as southeast onto the Chelan Falls map and T27N/R21E; then posted within Docket No. TTB–2008– follow the 2,000-foot elevation line to (16) Proceed straight north along the 0007 at ‘‘Regulations.gov,’’ the Federal section 8, T27N/R23E, to a point 0.3 east boundary line of section 8 to the e-rulemaking portal); or

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• Director, Regulations and Rulings been recognized and defined in part 9 the approximate middle of the proposed Division, Alcohol and Tobacco Tax and of the regulations. These designations viticultural area. St. Paul, Minnesota, is Trade Bureau, P.O. Box 14412, allow vintners and consumers to the northernmost point of the proposed Washington, DC 20044–4412. attribute a given quality, reputation, or viticultural area and its southernmost See the Public Participation section of other characteristic of a wine made from point is north of Moline, Illinois. this notice for specific instructions and grapes grown in an area to its According to the petitioner, the requirements for submitting comments, geographical origin. The establishment Wisconsin ice age and the effects of and for information on how to request of viticultural areas allows vintners to glaciation on the region provide a basis a public hearing. describe more accurately the origin of for most of the distinguishing features of You may view copies of this notice, their wines to consumers and helps the proposed viticultural area. selected supporting materials, and any consumers to identify wines they may We summarize below the supporting comments we receive about this purchase. Establishment of a viticultural evidence submitted with the petition. proposal at http://www.regulations.gov area is neither an approval nor an within Docket No. TTB–2008–0007. A endorsement by TTB of the wine Name Evidence link to that docket is posted on the TTB produced in that area. According to the petitioner, the Upper Web site at http://www.ttb.gov/wine/ Mississippi River Wildlife and Fish _ Requirements wine rulemaking.shtml under Notice Refuge Act of 1924 provides a historical No. 88. You also may view copies of this Section 4.25(e)(2) of the TTB perspective in support of the ‘‘Upper notice, all related petitions, maps and regulations outlines the procedure for Mississippi River Valley’’ name and its other supporting materials, and any proposing an American viticultural area boundaries. The Act established what comments we receive about this and provides that any interested party later would be known as the Upper proposal by appointment at the TTB may petition TTB to establish a grape- Mississippi River National Wildlife and Information Resource Center, 1310 G growing region as a viticultural area. Fish Refuge, an area that Congress Street, NW., Washington, DC 20220. Section 9.3(b) of the TTB regulations created to reflect the unique habitat of Please call 202–927–2400 to make an requires the petition to include— the Paleozoic Plateau (see ‘‘Regional • appointment. Evidence that the proposed Land Management’’ below). The petition FOR FURTHER INFORMATION CONTACT: N.A. viticultural area is locally and/or documentation includes references Sutton, Regulations and Rulings nationally known by the name specified citing the Upper Mississippi River in the petition; Division, Alcohol and Tobacco Tax and • Valley name relevant to the Upper Trade Bureau, 925 Lakeville St., No. Historical or current evidence that Mississippi River National Wildlife and 158, Petaluma, CA 94952; telephone supports setting the boundary of the Fish Refuge. The petitioner documents 415–271–1254. proposed viticultural area as the the use of the Upper Mississippi River petition specifies; Valley name in Federal and public Web SUPPLEMENTARY INFORMATION: • Evidence relating to the sources. geographical features, such as climate, Background on Viticultural Areas A page on the USGS Web site, ‘‘Status soils, elevation, and physical features and Trends of the Nation’s Biological TTB Authority that distinguish the proposed Resources, Part 2, Regional Trends of Section 105(e) of the Federal Alcohol viticultural area from surrounding areas; Administration Act (FAA Act), 27 • A description of the specific Biological Resources,’’ (http:// U.S.C. 205(e), authorizes the Secretary boundary of the proposed viticultural biology.usgs.gov/s+t/SNT/index.htm) of the Treasury to prescribe regulations area, based on features found on United includes a section on the Mississippi for the labeling of wine, distilled spirits, States Geological Survey (USGS) maps; River. The ‘‘Geography, Geological and malt beverages. The FAA Act and History, and Human Development’’ requires that these regulations, among • A copy of the appropriate USGS subsection explains the glacial history other things, prohibit consumer map(s) with the proposed viticultural of the Upper Mississippi River. The deception and the use of misleading area’s boundary prominently marked. Wisconsin Glacier retreating into statements on labels, and ensure that Canada and melting is described as Upper Mississippi River Valley Petition labels provide the consumer with follows: ‘‘The Upper Mississippi River adequate information as to the identity The Upper Mississippi River Valley valley then began filling with glacial and quality of the product. The Alcohol AVA Committee submitted a petition to outwash, mainly sand and gravel, a and Tobacco Tax and Trade Bureau TTB proposing the establishment of the process that is still under way * * *. (TTB) administers the regulations 29,914-square mile ‘‘Upper Mississippi The Upper Mississippi River valley promulgated under the FAA Act. River Valley’’ American viticultural area widens considerably where it joins the Part 4 of the TTB regulations (27 CFR in portions of southeast Minnesota, Minnesota River, 13 kilometers part 4) allows the establishment of southwest Wisconsin, northwest downstream from St. Anthony Falls definitive viticultural areas and the use Illinois, and northeast Iowa. A map ***.’’ The petitioner explains that at of their names as appellations of origin submitted with the petition indicates St. Anthony Falls the Mississippi River on wine labels and in wine that the vineyards within the proposed headwaters join the northern boundary advertisements. Part 9 of the TTB viticultural area are geographically of the Upper Mississippi River Valley. regulations (27 CFR part 9) contains the disbursed throughout the area. The Regarding the history of the valley, a list of approved viticultural areas. established 28,000-acre (43.75-square page on the National Park Service Web mile) Lake Wisconsin viticultural area site (http://www.nps.gov/efmo/parks/ Definition (27 CFR 9.146) located in Columbia and hist.htm) states that ‘‘The Upper Section 4.25(e)(1)(i) of the TTB Dane Counties, Wisconsin, lies entirely Mississippi River valley was not only regulations (27 CFR 4.25(e)(1)(i)) defines within the eastern portion of the the home of prehistoric Indians for a viticultural area for American wine as proposed viticultural area. thousands of years, but also has been a delimited grape-growing region As indicated on the USGS maps the scene for over 300 years of recorded distinguishable by geographical included with the petition, the human history as well. Early explorers features, the boundaries of which have Mississippi River runs north-to-south in found the area along the big river

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occupied by groups of Native sediments and other materials.) The Mississippi River Valley viticultural Americans.’’ petitioner notes that the Driftless Area area coincides with the landmark St. The May 6, 1997, NOVA broadcast roughly corresponds to the boundary of Anthony Falls. The proposed southern entitled ‘‘Flood!’’ described the 1993 the proposed Upper Mississippi River portion of the boundary extends west flooding of the Upper Mississippi River Valley viticultural area. from north of Moline, Illinois, at Lock Valley. It included an interview with The ‘‘Upper Mississippi River Valley: and Dam 14 on the Mississippi River, to A Personal Web Site and Guide,’’ at Tiffin, Iowa. The USGS maps show that Lynn House of Quincy, Illinois. She and ∼ her husband own 1,400 acres along the http://soli.inav.net/ atkinson/k/ the proposed easternmost point of the Mississippi River. Mrs. House said that UpperMissRiver.htm, has scenic proposed boundary is in Janesville, during the flooding of 1993 her husband photographs and information on local Wisconsin, and the westernmost point exclaimed, ‘‘Levees are going to break tourism, parks and natural areas, cities is along Minnesota State Highway 56 in like guitar strings, up and down the and towns, books, and shopping in the Coates, Minnesota, south of St. Paul. Upper Mississippi River Valley. Upper Mississippi River Valley!’’ To define the proposed boundary of ‘‘Twelve Millennia: Archaeology of Boundary Evidence the Upper Mississippi River Valley the Upper Mississippi River Valley,’’ by The proposed Upper Mississippi viticultural area, the petitioner provided James Theler and Robert Boszhardt River Valley viticultural area covers a written boundary description and (2003, Iowa State University Press), 29,914 square miles, averaging 120 USGS State maps for Minnesota, provides an overview of the 12,000- miles east to west and 225 miles north Wisconsin, Illinois, and Iowa. The year-old human past of the Driftless to south, according to the USGS maps petitioner also provided Anamosa and Area of the Upper Mississippi River provided with the petition. The Marshalltown, Iowa, regional maps, Valley, according to a description of the headwaters of the Mississippi River start which show highways in more detail. book on www.amazon.com. The at Lake Itasca in northwest Minnesota States and Counties Driftless Area extends from Rock Island and continue to St. Anthony Falls in Rapids, in the Moline-Rock Island, Minneapolis-St. Paul, Minnesota, the The table below lists the counties in Illinois, area, north to St. Anthony Falls petitioner explains. four states that are either totally or in the Minneapolis-St. Paul, Minnesota, According to the USGS maps partially within the boundary of the area. (It comprises areas that were included with the petition, the proposed proposed Upper Mississippi River excluded from glacial transport of northern boundary of the Upper Valley viticultural area.

COUNTIES IN THE PROPOSED UPPER MISSISSIPPI RIVER VALLEY VITICULTURAL AREA

Minnesota Wisconsin Illinois Iowa

1 ...... Dakota Buffalo Carroll Allamakee 2 ...... Dodge Clark Jo Davies Black Hawk 3 ...... Fillmore Columbia Lee Bremer 4 ...... Goodhue Crawford Ogle Buchanan 5 ...... Houston Dane Rock Island Cedar 6 ...... Mower Dunn Stephenson Chickasaw 7 ...... Olmstead Eau Claire Whiteside Clayton 8 ...... Wabasha Grant Winnebago Clinton 9 ...... Washington Green Delaware 10 ...... Winona Iowa Dubuque 11 ...... Jackson Fayette 12 ...... Juneau Howard 13 ...... La Crosse Jackson 14 ...... La Fayette Johnson 15 ...... Monroe Jones 16 ...... Pepin Linn 17 ...... Pierce Scott 18 ...... Richland Winneshiek 19 ...... Rock 20 ...... Sauk 21 ...... St. Croix 22 ...... Trempealeau 23 ...... Vernon

Regional History early 20th centuries. In 1919, Iowa growing as an industry in the Upper The petitioner explains that European produced the sixth largest grape crop in Mississippi River Valley region. the United States. However, prohibition, explorers Jacques Marquette and Louis Regional Land Management Joliet first entered the Upper Mississippi severe freezes, droughts, and wind drift River Valley on June 17, 1673. The from some crop sprays caused native The petitioner explains that two Louisiana Purchase and the resolution viticulture to dwindle throughout much management areas, Major Land of the Black Hawk War in 1832 served of the 20th century within the proposed Resource Area (MLRA) 105 and the to open the area to settlers from the viticultural area. The disease- and cold- Driftless Area Initiative (DAI), help to eastern states. resistant French-American grape define the proposed viticultural area. According to the petitioner, native hybrids and crop spray improvements The United States Department of grape varieties in the Upper Mississippi developed during the 20th century Agriculture, Natural Resources River Valley thrived in the late 19th and resulted in renewed confidence in grape Conservation Service (NRCS), oversees

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the management of MLRAs. MLRA 105 The petitioner explains further that Distinguishing Features comprises the Paleozoic Plateau, which the southern boundary line of the The petitioner asserts that the more recent glacial incursions proposed Upper Mississippi River distinguishing features of the proposed surrounded, bypassed, and preserved as Valley viticultural area correlates with Upper Mississippi River Valley a rugged, bedrock-controlled the southern border of the Upper viticultural area include its geology, environment with soils lacking the Mississippi Fish and Wildlife Refuge unglaciated topography, climate, soils, glacial drift of areas outside the MLRA established in 1924. The Wapsipinicon and hydrology. The Wisconsin ice age boundary. Thus, it encompasses a vast River watershed closely parallels the affected the region and provided a basis area that has similar soils, climate, eastern and southern boundary lines of for most of the distinguishing features of water resources, and land uses. It the proposed viticultural area. Interstate the proposed viticultural area, includes portions of four states: Highway 80, which serves as a portion specifically topography, soils, and Southeastern Minnesota, southwestern of the southern boundary line of the hydrology. Wisconsin, northeastern Iowa, and proposed viticultural area, approximates northwestern Illinois. It roughly the Wapsipinicon River watershed Geology corresponds to the boundary of, but is boundary line. The petitioner explains that a 4 percent smaller than, the proposed The petitioner explains that the significant event in the geologic history viticultural area. southern boundary of the proposed of the proposed Upper Mississippi River The DAI, according to the petitioner, viticultural area correlates with the Valley viticultural area was the impact comprises the Midwest Driftless Area southern boundary of the U.S. with its atypical lack of glacial till. It of the massive Wisconsin Glacier during Department of Agriculture Hardiness the Wisconsin ice age. The glacier, was created and is managed conjointly Zone 4b. Also, based on research by the Resource Conservation and which had lobes in Minnesota and Iowa, information provided by Professor Paul started melting 15,000 years ago and Development Councils under the NRCS Domoto, PhD, Department of in the four-state area. The DAI is retreated northward toward Canada. The Horticulture, Iowa State University, the resulting glacial water flows combined mandated to conserve land, water, and average minimum winter temperatures habitat resources that are strongly with the Glacial St. Croix River and within the proposed Upper Mississippi drained Glacial Lake Duluth, known influenced by the dramatic landscape. River Valley viticultural area are ¥15 to In some areas the DAI boundary slightly now as Lake Superior. The relatively ¥20 degrees F. To the south, they are sediment-free drainage of Glacial Lake extends beyond the MLRA 105 ¥10 to ¥15 degrees F. boundary to more fully capture Duluth helped carve the Upper According to the petitioner, the included watersheds and transitional Mississippi River Valley channel to a southern portion of the boundary of the areas of increasing glacial drift. depth of about 250 meters, or 820 feet. The petitioner uses State and proposed viticultural area continues for Eventually, alluvial deposits started interstate highways to define the a few miles south of the established refilling the river channel, beginning a boundary of the proposed Upper southern portion of the boundary of process that has continued into modern Mississippi River Valley viticultural MLRA 105. Also, the western portion of times. area. The highways are marked on the the boundary of the proposed According to the petitioner, the USGS maps and form a boundary that viticultural area includes a portion of development of the Upper Mississippi comprises these important, interrelated the adjacent MLRA 104 to encompass River impacted the regional topography components of the proposed viticultural the entire watershed of the and landforms. The tributary valleys area: The Upper Mississippi River Wapsipinicon River, a primary tributary include terraces, older flood plain National Wildlife and Fish Refuge, the of the Upper Mississippi River. deposits, and entrenched and hanging Paleozoic Plateau, MLRA 105, the Lake Wisconsin AVA (27 CFR 9.146) meanders (streams). These features Driftless Area, and the Upper show the complexity of the alluvial Mississippi River watershed. The proposed Upper Mississippi history and river development According to the petitioner, the River Valley viticultural area includes associated with glacial melting and proposed Upper Mississippi River the established 28,000-acre Lake drainage diversions. Valley viticultural area includes steep- Wisconsin viticultural area, the The petitioner states that surface sided cliffs, bluffs, deeply entrenched petitioner explains. The Wisconsin materials, especially along the Paleozoic stream valleys, and karst features. It has River, which forms Lake Wisconsin, is Plateau, date to 100,000 years in age. more hills, ridges, areas of thinner a major tributary to the Upper The younger materials that are outside glacial till, and thus better drainage for Mississippi River. the proposed boundary and that are grapes than areas outside the proposed The petitioner states that the Lake largely the result of glacial erosion and boundary. Outside the proposed Wisconsin viticultural area is comprised glacial till date to 10,000 years in age, boundary, the topography consists of of soil orders and Driftless Area or 90,000 years younger than the surface smoother landforms of unconsolidated topography similar to those of the materials on the Paleozoic Plateau. materials, glacial drift that is thicker proposed Upper Mississippi River The petitioner explains that streams than that within the proposed boundary, Valley viticultural area. Regarding the in the proposed Upper Mississippi River and alluvium. Lake Wisconsin viticultural area, which Valley viticultural area cut deep The petitioner explains that how the has a few glacial deposits at the higher dissections through the inclined Mississippi River is divided varies elevations, according to the petitioner, landforms and exposed Paleozoic rock. among individuals, commercial entities, geologists view that area as a The exposed rock, which varies in age and public agencies. The petitioner transitional glacial area. (The original from 350 to 600 million years old, is notes that ‘‘* * * the Mississippi River, Lake Wisconsin viticultural area (T.D. predominantly dolomite, limestone, and sometimes in conjunction with its ATF–352, 59 FR 537, January 5, 1994) sandstone. valley, is discussed as having upper and describes the area as a transitional zone lower segments.’’ Others, however, refer between the glaciated topography to its Topography to the upper, middle, and lower east and the unglaciated, driftless The Driftless Area of the Upper Mississippi. topography to its west.) Mississippi River Valley has a unique

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topography and subsurface structure of the proposed Upper Mississippi River feet, except for the 80- to 330-foot-high because a direct glacial incursion did Valley viticultural area, the petitioner moraines, drumlins, and bedrock not occur in that area during the most continues, the topography consists of escarpments. recent Wisconsin ice age, the petitioner unconsolidated, heavily dissected soil South of the boundary of the explains. Consequently, the topography material along substantial deposits of proposed Upper Mississippi River does not have substantial amounts of glacial materials on smooth, rolling Valley viticultural area are rolling, hilly, materials deposited by glaciers. The hills. loess-covered plains and some broad, petitioner notes that the proposed The elevations of the Upper level uplands in the southwest region. boundary divides the rugged, dissected, Mississippi River Valley viticultural Elevations there also generally vary by bedrock-controlled landscapes within area, the petitioner states, range from only several feet, except on the upland the Upper Mississippi River Valley from 660 feet on valley floors to 1,310 feet on flats, where elevation changes up to 200 the gently rolling landscapes that have high ridges. Outside the boundary of the feet. proposed viticultural area, elevations lower relief and glaciated, erosional West of the boundary of the proposed surfaces and that are outside the valley. average 250 feet higher to the northwest and 165 feet lower to the southeast. Upper Mississippi River Valley Bedrock control in the proposed area, The petitioner explains that north of viticultural area the landscape is a the petitioner explains, refers to the the boundary of the proposed Upper nearly level to gently sloping till plain. entrenched valleys and karst that Mississippi River Valley viticultural Elevations generally vary by several feet. constitute an integrated drainage area, loess covers the level-to-rolling till Soils network. The karst topography of the plains. Elevations change little on the proposed viticultural area includes plains. The soils common to the proposed underground caves, sinkholes, springs, East of the boundary of the proposed Upper Mississippi River Valley and subsurface caverns. According to Upper Mississippi River Valley viticultural area, the petitioner states, the petitioner, rivers and underground viticultural area, the landscape is are stony or rocky soils on steep slopes. water flows are general features dominated by a glaciated plain that has The petitioner provides comparative throughout the proposed Upper belts of morainic hills, ridges, and soil data for the proposed viticultural Mississippi River Valley viticultural washout terraces. (TTB notes that area and the surrounding regions. The area, which has none of the natural morainic hills are accumulations of soil data, which show differences and lakes that direct glacial movement and stones that glacial activity has left.) similarities of the soils, are listed in the normally creates. Outside the boundary Also, elevations generally vary several table below.

DIFFERENCES AND SIMILARITIES OF THE SOILS WITHIN AND OUTSIDE OF THE UPPER MISSISSIPPI RIVER VALLEY

Dominant soil Temperature and moisture Mineralogy, soil depth, Location * orders regimes drainage, and texture

Within ...... Alfisols, Entisols, and Mesic, Udic ...... Mixed mineralogy; moderately deep to very Mollisols. deep; well drained or moderately well drained; loamy with little clay. North Outside ...... Entisols, Alfisols, Histosols, Frigid, Udic ...... Mixed mineralogy; moderately deep to very Spodosols, and Inceptisols. deep; well drained to poorly drained; sandy to loamy. East Outside ...... Alfisols, Histosols, and Mesic, Udic ...... Mixed mineralogy; very deep; well drained to Mollisols. poorly drained; silty, loamy, or clayey. South Outside ...... Mollisols, Alfisols, Entisols, Mesic, Udic ...... Mixed mineralogy; very deep; well drained to and Inceptisols. poorly drained; loamy. West Outside ...... Mollisols and Alfisols ...... Mesic, Udic ...... Mixed mineralogy; very deep; well drained to very poorly drained; loamy. * In relation to the proposed Upper Mississippi River Valley viticultural area.

The petitioner explains that within comparatively thinner glacial till within waterfalls and rapids, sinkholes, the boundary of the proposed Upper the proposed viticultural area have good springs, and entrenched stream valleys Mississippi River Valley viticultural natural drainage for grapes. Although combine to create multiple area, Argiudolls (Tama, Dodgeville, they have much clay, generally they microclimates within the proposed Richwood, and Dakota series) and have access to water and in numerous Upper Mississippi River Valley Hapludolls (Muscatine series) are on areas are on south-facing slopes, viticultural area. Also, the combination nearly level to gently sloping benches creating microclimates beneficial to of microclimates and diverse settings and broad ridge tops. Hapludolls grapes. The soils outside the proposed supports varied flora and fauna (Frontenac, Broadale, and Bellechester boundary generally formed in deeply communities not found outside the series) are on steep slopes bordering dissected, thicker glacial drift and boundary of the proposed viticultural major valleys. Well drained Udifluvents alluvium over unconsolidated materials area. (Dorchester, Chaseburg, and Arenzville on smooth, gently rolling landscapes. series) are along stream bottoms. After precipitation they require tile The petitioner provides temperature Quartzipsamments (Boone series) are on drainage because of glacial pools and and precipitation data for the proposed steep slopes. Also, Udipsamments the generally lower relief. Upper Mississippi River Valley (Plainfield and Gotham series) are on viticultural area and its surrounding nearly level stream benches. Climate regions. Those climatic differences are Overall, the soils on steep hills and The petitioner states that steep slopes, presented in the table below. ridges and those formed in bluffs, numerous rock outcrops,

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TEMPERATURE AND PRECIPITATION FOR WITHIN AND OUTSIDE OF THE UPPER MISSISSIPPI RIVER VALLEY

Annual average temperature range Annual average Annual average Amount of Location * (degrees frost-free period precipitation annual average precipitation received Fahrenheit) (days) (inches) during the growing season

Within ...... 42–50 145–205 30–38 2⁄3 or more. North Outside ...... 40–46 135–180 27–33 Most. East Outside ...... 43–48 150–190 30–38 Most. South Outside ...... 46–51 170–205 33–38 Most. West Outside ...... 44–50 160–195 29–37 More than 2⁄3. * In relation to the proposed Upper Mississippi River Valley viticultural area.

According to petition data, the than in the neighboring areas to the east than in the proposed viticultural area, proposed Upper Mississippi River and west. and approximately the same in the area Valley viticultural area has, on average, The petition data show the to the west of the proposed viticultural a warmer annual temperature range than precipitation range of the proposed area. that of the surrounding locations to the Upper Mississippi River Valley north and east. In the areas to south and viticultural area as compared to that in Hydrology west, the annual average temperature the surrounding areas. The annual The petitioner provides hydrological range is several degrees higher than that average precipitation range is higher in data that show the growing conditions, in the proposed viticultural area. the proposed Upper Mississippi River The annual average frost-free period Valley viticultural area than in the area including the relationship between the within the proposed Upper Mississippi to its north. The areas to the south, west, soils and the hydrological River Valley viticultural area is longer and east receive approximately the same characteristics of the proposed Upper than that in the area to the north and annual average precipitation, in the Mississippi River Valley viticultural shorter than that in the area to the same pattern, as the proposed area and its surrounding regions. The south, according to petition data. The viticultural area. The precipitation hydrological data are presented in the range of the annual frost-free period in during the growing season is greater in table below. the proposed viticultural area is greater the areas to the north, south, and east

HYDROLOGICAL DATA AND DRAINAGE NEEDED FOR CROP PRODUCTION WITHIN AND OUTSIDE OF THE UPPER MISSISSIPPI RIVER VALLEY

Soils and crop Location * Ground water Other resources production

Within ...... Abundant in valleys and variable Use of springs, streams, and farm Minimal need for a tile drainage on uplands. ponds, and extensive use of system in soils. bedrock aquifers. Outside North ...... Abundant in deep glacial drift de- Lakes and streams...... Artificial drainage required for posits, but scarce in thin ones. soils on lowlands. Outside East ...... Abundant in areas underlain by Inland lakes, streams, and sand- Artificial drainage required for drift. stone and limestone bedrock fine-textured soils with poor formations below the glacial drainage. drift. Outside South ...... Abundant in areas of glacial drift Perennial streams and the Mis- Favorable precipitation pattern; sissippi River. drainage not required. Outside West ...... Adequate ...... Extensive use of bedrock aquifers Artificial drainage required for the seasonal high water table. * In relation to the proposed Upper Mississippi River Valley viticultural area.

In most years the moderate TTB Determination Maps precipitation of the proposed Upper The petitioner provided the required Mississippi River Valley viticultural TTB concludes that this petition to establish the 29,914-square-mile Upper maps, and we list them below in the area, the petitioner explains, is usually proposed regulatory text. adequate for both the human population Mississippi River Valley American and agriculture. Ground water, the viticultural area merits consideration Impact on Current Wine Labels petitioner states, remains abundant in and public comment as invited in this Part 4 of the TTB regulations prohibits outwash deposits of valleys, but on notice. any label reference on a wine that uplands it varies in quantity. Bedrock Boundary Description indicates or implies an origin other than aquifers also provide extensive ground the wine’s true place of origin. If we water resources within the proposed See the narrative boundary establish this proposed viticultural area, viticultural area and in the area to its description of the petitioned-for its name, ‘‘Upper Mississippi River west. viticultural area in the proposed Valley,’’ will be recognized under 27 regulatory text published at the end of CFR 4.39(i)(3) as a name of viticultural this notice. significance. The text of the proposed regulation clarifies this point.

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Consequently, wine bottlers using the proposed area name and currently You may also write to the ‘‘Upper Mississippi River Valley’’ in a used brand names. If a commenter Administrator before the comment brand name, including a trademark, or believes that a conflict will arise, the closing date to ask for a public hearing. in another label reference as to the comment should describe the nature of The Administrator reserves the right to origin of the wine, will have to ensure that conflict, including any anticipated determine whether to hold a public that the product is eligible to use the negative economic impact that approval hearing. of the proposed viticultural area will viticultural area’s name as an Confidentiality appellation of origin. have on an existing viticultural For a wine to be eligible to use a enterprise. We are particularly All submitted comments and viticultural area name as an appellation interested in any comments on whether attachments are part of the public record of origin or a term of viticultural the evidence regarding name and and subject to disclosure. Do not significance in a brand name, at least 85 distinguishing geographical features is enclose any material in your comments percent of the wine must be derived sufficient to warrant the establishment that you consider to be confidential or from grapes grown within the area of this new viticultural area that entirely inappropriate for public disclosure. represented by that name or other term, encompasses the existing Lake Public Disclosure and the wine must meet the other Wisconsin viticultural area. We are also conditions listed in 27 CFR 4.25(e)(3). If interested in receiving suggestions for We will post, and you may view, the wine is not eligible to use the ways to avoid conflicts, for example, by copies of this notice, selected viticultural area name as an appellation adopting a modified or different name supporting materials, and any online or of origin and that name or other term of for the viticultural area. mailed comments we receive about this proposal within Docket No. TTB–2008– viticultural significance appears in the Submitting Comments brand name, then the label is not in 0007 on the Federal e-rulemaking compliance and the bottler must change You may submit comments on this portal, Regulations.gov, at http:// the brand name and obtain approval of notice by using one of the following two www.regulations.gov. A direct link to methods: that docket is available on the TTB Web a new label. Similarly, if the viticultural • area name or other term of viticultural Federal e-Rulemaking Portal: You site at http://www.ttb.gov/wine/ may send comments via the online _ significance appears in another wine rulemaking.shtml under Notice comment form posted with this notice reference on the label in a misleading No. 88. You may also reach the relevant within Docket No. TTB–2008–0007 on manner, the bottler would have to docket through the Regulations.gov ‘‘Regulations.gov,’’ the Federal e- obtain approval of a new label. search page at http:// rulemaking portal, at http:// Accordingly, if a previously approved www.regulations.gov. For instructions www.regulations.gov. A direct link to label uses the name ‘‘Upper Mississippi on how to use Regulations.gov, visit the that docket is available under Notice River Valley’’ for a wine that does not site and click on ‘‘User Guide’’ under No. 88 on the TTB Web site at http:// meet the 85 percent standard, the ‘‘How to Use this Site.’’ www.ttb.gov/wine/ All posted comments will display the previously approved label will be wine_rulemaking.shtml. Supplemental commenter’s name, organization (if subject to revocation upon the effective files may be attached to comments any), city, and State, and, in the case of date of the approval of the Upper submitted via Regulations.gov. For mailed comments, all address Mississippi River Valley viticultural complete instructions on how to use information, including e-mail addresses. area. Regulations.gov, visit the site and click Different rules apply if a wine has a We may omit voluminous attachments on ‘‘User Guide’’ under ‘‘How to Use brand name containing a viticultural or material that we consider unsuitable this Site.’’ area name or other term of viticultural for posting. • U.S. Mail: You may send comments You also may view copies of this significance that was used as a brand via postal mail to the Director, notice, all related petitions, maps and name on a label approved before July 7, Regulations and Rulings Division, other supporting materials, and any 1986. See 27 CFR 4.39(i)(2) for details. Alcohol and Tobacco Tax and Trade electronic or mailed comments we Public Participation Bureau, P.O. Box 14412, Washington, receive about this proposal by DC 20044–4412. appointment at the TTB Information Comments Invited Please submit your comments by the Resource Center, 1310 G Street, NW., We invite comments from interested closing date shown above in this notice. Washington, DC 20220. You may also members of the public on whether we Your comments must reference Notice obtain copies at 20 cents per 8.5- × 11- should establish the proposed No. 88 and include your name and inch page. Contact our information viticultural area. We are interested in mailing address. Your comments also specialist at the above address or by receiving comments on the sufficiency must be made in English, be legible, and telephone at 202–927–2400 to schedule and accuracy of the name, climatic, be written in language acceptable for an appointment or to request copies of boundary, and other required public disclosure. We do not comments or other materials. information submitted in support of the acknowledge receipt of comments, and petition. Please provide any available we consider all comments as originals. Regulatory Flexibility Act specific information in support of your If you are commenting on behalf of an We certify that this proposed comments. association, business, or other entity, regulation, if adopted, would not have Because of the potential impact of the your comment must include the entity’s a significant economic impact on a establishment of the proposed Upper name as well as your name and position substantial number of small entities. Mississippi River Valley viticultural title. If you comment via The proposed regulation imposes no area on wine labels that include the Regulations.gov, please enter the new reporting, recordkeeping, or other words ‘‘Upper Mississippi River Valley’’ entity’s name in the ‘‘Organization’’ administrative requirement. Any benefit as discussed above under Impact on blank of the online comment form. If derived from the use of a viticultural Current Wine Labels, we are particularly you comment via postal mail, please area name would be the result of a interested in comments regarding submit your entity’s comment on proprietor’s efforts and consumer whether there will be a conflict between letterhead. acceptance of wines from that area.

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Therefore, no regulatory flexibility Interstate Highways 94 and 494 Hawk County, to its intersection with analysis is required. (beltway), east of St. Paul at Oakbury in U.S. Highway 20, southeast of Waterloo Washington County. From the beginning and Raymond; then Executive Order 12866 point, proceed east on Interstate 94, (12) Using the State of Iowa map, This proposed rule is not a significant crossing over Lake St. Croix and onto proceed west-northwest on U.S. regulatory action as defined by the State of Wisconsin map at St. Croix Highway 20 to Waterloo and its Executive Order 12866. Therefore, it County, and then continuing through intersection with U.S. Highway 63; then requires no regulatory assessment. Dunn County to Eau Claire County, to (13) Proceed north on U.S. Highway Drafting Information the intersection of Interstate Highway 94 63 through Bremer, Chicksaw, and with Wisconsin State Highway 85, Howard Counties, skirting the Upper N.A. Sutton of the Regulations and southwest of the City of Eau Claire; then Iowa River at Chester, and crossing onto Rulings Division drafted this notice. (2) Proceed northeast on Wisconsin the State of Minnesota map at Fillmore List of Subjects in 27 CFR Part 9 State Highway 85 toward the City of Eau County, to its intersection with Claire to its intersection with U.S. Minnesota State Highway 56; then Wine. Highway 12; then (14) Proceed northwest and northerly Proposed Regulatory Amendment (3) Proceed southeast on U.S. on Minnesota State Highway 56 through Mower, Dodge, and Goodhue Counties For the reasons discussed in the Highway 12 into Jackson County and to Dakota County, where it joins with preamble, we propose to amend title 27, passing through Clark County, to its State Highway 52 on commercial maps, chapter 1, part 9, Code of Federal intersection with Interstate Highway 94 to its intersection with the Interstate Regulations, as follows: at Black River Falls; then (4) Proceed southeast on Interstate Highway 494 (beltway), south of St. PART 9—AMERICAN VITICULTURAL Highway 94 into Monroe County to its Paul; then AREAS intersection with Interstate Highway 90, (15) Follow Interstate Highway 494 east of the Fort McCoy Military (beltway) northeast into Washington 1. The authority citation for part 9 Reservation; then County, returning to the beginning continues to read as follows: (5) Proceed southeast on Interstate point. Authority: 27 U.S.C. 205. Highway 90 through Juneau, Sauk, Signed: June 6, 2008. Columbia, Dane, and Rock Counties, John J. Manfreda, Subpart C—Approved American crossing onto the State of Illinois map Viticultural Areas at Winnebago County to its intersection Administrator. with U.S. Highway 20 at Cherry Valley; Editorial Note: This document was 2. Amend subpart C by adding § 9.___ then received in the Office of the Federal Register to read as follows: (6) Proceed west on U.S. Highway 20 on August 6, 2008. § 9.___ Upper Mississippi River Valley. to its intersection with Illinois State [FR Doc. E8–18535 Filed 8–11–08; 8:45 am] (a) Name. The name of the viticultural Highway 2, west of the Rock River; then BILLING CODE 4810–31–P area described in this section is ‘‘Upper (7) Proceed southwest on Illinois State Mississippi River Valley’’. For purposes Highway 2, passing through Ogle of part 4 of this chapter, ‘‘Upper County and into Lee County, to its DEPARTMENT OF HOMELAND Mississippi River Valley’’ is a term of intersection with Illinois State Highway SECURITY viticultural significance. 26 at Dixon; then (b) Approved maps. The six United (8) Proceed south on Illinois State Federal Emergency Management States Geological Survey topographic Highway 26 to its intersection with Agency maps used to determine the boundary of Illinois State Highway 5 (which has the Upper Mississippi River Valley been redesignated as Interstate Highway 44 CFR Part 67 88 on contemporary maps of Illinois); viticultural area are titled: [Docket No. FEMA–B–7796] (1) State of Minnesota, scale then (9) Proceed southwest on Illinois State 1:500,000; compiled in 1963; edition of Proposed Flood Elevation Highway 5 (Interstate Highway 88), 1985; Determinations (2) State of Wisconsin, scale passing through Whiteside County and 1:500,000; compiled in 1966; edition of into Rock Island County, to its AGENCY: Federal Emergency 1984; intersection with Interstate Highway 80 Management Agency, DHS. (3) State of Illinois, scale 1:500,000; at Barstow; then ACTION: Proposed rule. compiled in 1970; edition of 1987; (10) Proceed generally northwest on (4) State of Iowa, scale 1:500,000; Interstate Highway 80, crossing the SUMMARY: Comments are requested on compiled in 1965; edition of 1984; Mississippi River, onto the State of Iowa the proposed Base (1 percent annual- (5) Anamosa, Iowa, 1:100,000 scale; map at Scott County, and continuing chance) Flood Elevations (BFEs) and edited 1984; and west-northwest through Cedar County proposed BFE modifications for the (6) Marshalltown, Iowa, 1:100,000 and into Johnson County to the communities listed in the table below. scale; edited 1984. intersection of Interstate Highways 80 The purpose of this notice is to seek (c) Boundary. The Upper Mississippi and 380 at Tiffin; then general information and comment River Valley viticultural area is located (11) Proceed north-northwest on regarding the proposed regulatory flood in portions of southeast Minnesota, Interstate Highway 380 into Linn elevations for the reach described by the southwest Wisconsin, northwest County and Cedar Rapids on the State downstream and upstream locations in Illinois, and northeast Iowa. The of Iowa map. Then using the Anamosa the table below. The BFEs and modified boundary of the Upper Mississippi map, followed by the Marshalltown BFEs are a part of the floodplain River Valley viticultural area is as map, follow Interstate Highway 380, management measures that the described below: labeled ‘‘Under Construction’’ on the community is required either to adopt (1) The beginning point is on the State Anamosa map, northwest through or show evidence of having in effect in of Minnesota map at the intersection of Benton and Buchanan Counties to Black order to qualify or remain qualified for

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participation in the National Flood These proposed BFEs and modified Consideration. An environmental Insurance Program (NFIP). In addition, BFEs, together with the floodplain impact assessment has not been these elevations, once finalized, will be management criteria required by 44 CFR prepared. used by insurance agents, and others to 60.3, are the minimum that are required. Regulatory Flexibility Act. As flood calculate appropriate flood insurance They should not be construed to mean elevation determinations are not within premium rates for new buildings and that the community must change any the scope of the Regulatory Flexibility the contents in those buildings. existing ordinances that are more Act, 5 U.S.C. 601–612, a regulatory DATES: Comments are to be submitted stringent in their floodplain flexibility analysis is not required. on or before November 10, 2008. management requirements. The Executive Order 12866, Regulatory ADDRESSES: The corresponding community may at any time enact Planning and Review. This proposed preliminary Flood Insurance Rate Map stricter requirements of its own, or rule is not a significant regulatory action (FIRM) for the proposed BFEs for each pursuant to policies established by other under the criteria of section 3(f) of community are available for inspection Federal, State, or regional entities. Executive Order 12866, as amended. at the community’s map repository. The These proposed elevations are used to Executive Order 13132, Federalism. respective addresses are listed in the meet the floodplain management This proposed rule involves no policies table below. requirements of the NFIP and are also that have federalism implications under You may submit comments, identified used to calculate the appropriate flood Executive Order 13132. by Docket No. FEMA–B–7796, to insurance premium rates for new Executive Order 12988, Civil Justice William R. Blanton, Jr., Chief, buildings built after these elevations are Reform. This proposed rule meets the Engineering Management Branch, made final, and for the contents in these applicable standards of Executive Order Mitigation Directorate, Federal buildings. 12988. Emergency Management Agency, 500 C Comments on any aspect of the Flood Street, SW., Washington, DC 20472, Insurance Study and FIRM, other than List of Subjects in 44 CFR Part 67 (202) 646–3151, or (e-mail) the proposed BFEs, will be considered. Administrative practice and [email protected]. A letter acknowledging receipt of any procedure, Flood insurance, Reporting comments will not be sent. and recordkeeping requirements. FOR FURTHER INFORMATION CONTACT: Administrative Procedure Act William R. Blanton, Jr., Chief, Statement. This matter is not a Accordingly, 44 CFR part 67 is Engineering Management Branch, rulemaking governed by the proposed to be amended as follows: Mitigation Directorate, Federal Administrative Procedure Act (APA), 5 PART 67—[AMENDED] Emergency Management Agency, 500 C U.S.C. 553. FEMA publishes flood Street, SW., Washington, DC 20472, elevation determinations for notice and 1. The authority citation for part 67 (202) 646–3151 or (e-mail) comment; however, they are governed continues to read as follows: [email protected]. by the Flood Disaster Protection Act of Authority: 42 U.S.C. 4001 et seq.; SUPPLEMENTARY INFORMATION: The 1973, 42 U.S.C. 4105, and the National Reorganization Plan No. 3 of 1978, 3 CFR, Federal Emergency Management Agency Flood Insurance Act of 1968, 42 U.S.C. 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, (FEMA) proposes to make 4001 et seq., and do not fall under the 3 CFR, 1979 Comp., p. 376. determinations of BFEs and modified APA. BFEs for each community listed below, National Environmental Policy Act. § 67.4 [Amended] in accordance with section 110 of the This proposed rule is categorically 2. The tables published under the Flood Disaster Protection Act of 1973, excluded from the requirements of 44 authority of § 67.4 are proposed to be 42 U.S.C. 4104, and 44 CFR 67.4(a). CFR part 10, Environmental amended as follows:

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

Hutchinson County, South Dakota, and Incorporated Areas

James River ...... Approximately 50 feet upstream of Maxwell Road ...... None +1189 Unincorporated Areas of Hutchinson County, Approximately 2,600 feet downstream of 269th Street None +1210 Town of Olivet.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Town of Olivet Maps are available for inspection at P.O. Box 490, Parkston, SD 57366. Unincorporated Areas of Hutchinson County Maps are available for inspection at PO Box 490, Parkston, SD 57366.

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(Catalog of Federal Domestic Assistance No. at the community’s map repository. The rulemaking governed by the 97.022, ‘‘Flood Insurance.’’) respective addresses are listed in the Administrative Procedure Act (APA), 5 Dated: July 25, 2008. table below. U.S.C. 553. FEMA publishes flood Edward L. Connor, You may submit comments, identified elevation determinations for notice and Deputy Assistant Administrator for by Docket No. FEMA–B–7798, to comment; however, they are governed Insurance, Department of Homeland Security, William R. Blanton, Jr., Chief, by the Flood Disaster Protection Act of Federal Emergency Management Agency. Engineering Management Branch, 1973, 42 U.S.C. 4105, and the National [FR Doc. E8–18528 Filed 8–11–08; 8:45 am] Mitigation Directorate, Federal Flood Insurance Act of 1968, 42 U.S.C. Emergency Management Agency, 500 C BILLING CODE 9110–12–P 4001 et seq., and do not fall under the Street, SW., Washington, DC 20472, APA. (202) 646–3151, or (e-mail) National Environmental Policy Act. DEPARTMENT OF HOMELAND [email protected]. This proposed rule is categorically SECURITY FOR FURTHER INFORMATION CONTACT: excluded from the requirements of 44 William R. Blanton, Jr., Chief, CFR part 10, Environmental Federal Emergency Management Engineering Management Branch, Consideration. An environmental Agency Mitigation Directorate, Federal impact assessment has not been Emergency Management Agency, 500 C prepared. 44 CFR Part 67 Street, SW., Washington, DC 20472, Regulatory Flexibility Act. As flood [Docket No. FEMA–B–7798] (202) 646–3151 or (e-mail) elevation determinations are not within [email protected]. the scope of the Regulatory Flexibility Proposed Flood Elevation SUPPLEMENTARY INFORMATION: The Act, 5 U.S.C. 601–612, a regulatory Determinations Federal Emergency Management Agency flexibility analysis is not required. Executive Order 12866, Regulatory AGENCY: Federal Emergency (FEMA) proposes to make Planning and Review. This proposed Management Agency, DHS. determinations of BFEs and modified BFEs for each community listed below, rule is not a significant regulatory action ACTION: Proposed rule. in accordance with section 110 of the under the criteria of section 3(f) of SUMMARY: Comments are requested on Flood Disaster Protection Act of 1973, Executive Order 12866, as amended. the proposed Base (1 percent annual- 42 U.S.C. 4104, and 44 CFR 67.4(a). Executive Order 13132, Federalism. chance) Flood Elevations (BFEs) and These proposed BFEs and modified This proposed rule involves no policies proposed BFE modifications for the BFEs, together with the floodplain that have federalism implications under communities listed in the table below. management criteria required by 44 CFR Executive Order 13132. The purpose of this notice is to seek 60.3, are the minimum that are required. Executive Order 12988, Civil Justice general information and comment They should not be construed to mean Reform. This proposed rule meets the regarding the proposed regulatory flood that the community must change any applicable standards of Executive Order elevations for the reach described by the existing ordinances that are more 12988. stringent in their floodplain downstream and upstream locations in List of Subjects in 44 CFR Part 67 the table below. The BFEs and modified management requirements. The BFEs are a part of the floodplain community may at any time enact Administrative practice and management measures that the stricter requirements of its own, or procedure, Flood insurance, Reporting community is required either to adopt pursuant to policies established by other and recordkeeping requirements. Federal, State, or regional entities. or show evidence of having in effect in Accordingly, 44 CFR part 67 is These proposed elevations are used to order to qualify or remain qualified for proposed to be amended as follows: meet the floodplain management participation in the National Flood requirements of the NFIP and are also Insurance Program (NFIP). In addition, PART 67—[AMENDED] used to calculate the appropriate flood these elevations, once finalized, will be insurance premium rates for new 1. The authority citation for part 67 used by insurance agents, and others to buildings built after these elevations are continues to read as follows: calculate appropriate flood insurance made final, and for the contents in these premium rates for new buildings and Authority: 42 U.S.C. 4001 et seq.; buildings. the contents in those buildings. Reorganization Plan No. 3 of 1978, 3 CFR, Comments on any aspect of the Flood 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, DATES: Comments are to be submitted Insurance Study and FIRM, other than 3 CFR, 1979 Comp., p. 376. on or before November 10, 2008. the proposed BFEs, will be considered. ADDRESSES: The corresponding A letter acknowledging receipt of any § 67.4 [Amended] preliminary Flood Insurance Rate Map comments will not be sent. 2. The tables published under the (FIRM) for the proposed BFEs for each Administrative Procedure Act authority of § 67.4 are proposed to be community are available for inspection Statement. This matter is not a amended as follows:

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

Town of Boxborough, Massachusetts

Massachusetts ...... Town of Boxborough Guggins Brook ...... Approximately 1,000 feet upstream of con- +206 +207 fluence with Inch Brook.

*National Geodetic Vertical Datum.

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

+ North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Town of Boxborough Maps are available for inspection at the Town of Boxborough, 29 Middle Road, Boxborough, MA.

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

Effective Modified

Morgan County, Illinois, and Incorporated Areas

Illinois River ...... From the Scott/Morgan County Border; Smith Lake +446 +447 Unincorporated Areas of Road extended. Morgan County, Village of Meredosia. To the Cass/Morgan County Border; Morgan Cass +447 +448 County Line Road. Mauvaise Terre Creek ...... From approximately Michigan Avenue extended ...... None +595 Village of S. Jacksonville. To approximately 50 feet downstream of Vandalia None +595 Road; approximately 60 feet upstream of Country Club Road. Town Brook ...... From Massey Lane ...... None +603 Unincorporated Areas of Morgan County. To the limit of Detailed Study; approximately 650 feet None +603 upstream of Massey Lane.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Unincorporated Areas of Morgan County Maps are available for inspection at Morgan County Regional Planning Commission, 345 West State Street, Jacksonville, IL 62650. Village of Meredosia Maps are available for inspection at Meredosia Village Hall, 315 Main Street, Meredosia, IL 62665. Village of S. Jacksonville Maps are available for inspection at South Jacksonville Village Hall, 301 Dewey Street, South Jacksonville, IL 62650.

Scott County, Illinois, and Incorporated Areas

Illinois River...... From river mile 67.0, approximately 500 feet up- +446 +447 Unincorporated Areas of stream of the confluence with Coon Run. Scott County. To the Morgan/Scott county boundary at river mile +446 +447 68.0—approximately Smith Lake Road extended.

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

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

ADDRESSES Unincorporated Areas of Scott County Maps are available for inspection at Scott County Courthouse, 35 East Market Street, Winchester, IL 62694.

(Catalog of Federal Domestic Assistance No. at the community’s map repository. The rulemaking governed by the 97.022, ‘‘Flood Insurance.’’) respective addresses are listed in the Administrative Procedure Act (APA), 5 Dated: July 25, 2008. table below. U.S.C. 553. FEMA publishes flood Edward L. Connor, You may submit comments, identified elevation determinations for notice and Deputy Assistant Administrator for by Docket No. FEMA–B–7799, to comment; however, they are governed Insurance, Department of Homeland Security, William R. Blanton, Jr., Chief, by the Flood Disaster Protection Act of Federal Emergency Management Agency. Engineering Management Branch, 1973, 42 U.S.C. 4105, and the National [FR Doc. E8–18526 Filed 8–11–08; 8:45 am] Mitigation Directorate, Federal Flood Insurance Act of 1968, 42 U.S.C. Emergency Management Agency, 500 C BILLING CODE 9110–12–P 4001 et seq., and do not fall under the Street, SW., Washington, DC 20472, APA. (202) 646–3151, or (e-mail) National Environmental Policy Act. DEPARTMENT OF HOMELAND [email protected]. This proposed rule is categorically SECURITY FOR FURTHER INFORMATION CONTACT: excluded from the requirements of 44 William R. Blanton, Jr., Chief, CFR part 10, Environmental Federal Emergency Management Engineering Management Branch, Consideration. An environmental Agency Mitigation Directorate, Federal impact assessment has not been Emergency Management Agency, 500 C prepared. 44 CFR Part 67 Street, SW., Washington, DC 20472, Regulatory Flexibility Act. As flood [Docket No. FEMA–B–7799] (202) 646–3151 or (e-mail) elevation determinations are not within [email protected]. the scope of the Regulatory Flexibility Proposed Flood Elevation SUPPLEMENTARY INFORMATION: The Act, 5 U.S.C. 601–612, a regulatory Determinations Federal Emergency Management Agency flexibility analysis is not required. (FEMA) proposes to make Executive Order 12866, Regulatory AGENCY: Federal Emergency Planning and Review. This proposed Management Agency, DHS. determinations of BFEs and modified BFEs for each community listed below, rule is not a significant regulatory action ACTION: Proposed rule. in accordance with section 110 of the under the criteria of section 3(f) of Executive Order 12866, as amended. SUMMARY: Comments are requested on Flood Disaster Protection Act of 1973, the proposed Base (1 percent annual- 42 U.S.C. 4104, and 44 CFR 67.4(a). Executive Order 13132, Federalism. chance) Flood Elevations (BFEs) and These proposed BFEs and modified This proposed rule involves no policies proposed BFE modifications for the BFEs, together with the floodplain that have federalism implications under communities listed in the table below. management criteria required by 44 CFR Executive Order 13132. The purpose of this notice is to seek 60.3, are the minimum that are required. Executive Order 12988, Civil Justice general information and comment They should not be construed to mean Reform. This proposed rule meets the regarding the proposed regulatory flood that the community must change any applicable standards of Executive Order elevations for the reach described by the existing ordinances that are more 12988. stringent in their floodplain downstream and upstream locations in List of Subjects in 44 CFR Part 67 the table below. The BFEs and modified management requirements. The BFEs are a part of the floodplain community may at any time enact Administrative practice and management measures that the stricter requirements of its own, or procedure, Flood insurance, Reporting community is required either to adopt pursuant to policies established by other and recordkeeping requirements. Federal, State, or regional entities. or show evidence of having in effect in Accordingly, 44 CFR part 67 is These proposed elevations are used to order to qualify or remain qualified for proposed to be amended as follows: participation in the National Flood meet the floodplain management Insurance Program (NFIP). In addition, requirements of the NFIP and are also PART 67—[AMENDED] these elevations, once finalized, will be used to calculate the appropriate flood 1. The authority citation for part 67 used by insurance agents, and others to insurance premium rates for new continues to read as follows: calculate appropriate flood insurance buildings built after these elevations are premium rates for new buildings and made final, and for the contents in these Authority: 42 U.S.C. 4001 et seq.; the contents in those buildings. buildings. Reorganization Plan No. 3 of 1978, 3 CFR, Comments on any aspect of the Flood 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, DATES: Comments are to be submitted Insurance Study and FIRM, other than 3 CFR, 1979 Comp., p. 376. on or before November 10, 2008. the proposed BFEs, will be considered. ADDRESSES: The corresponding A letter acknowledging receipt of any § 67.4 [Amended] preliminary Flood Insurance Rate Map comments will not be sent. 2. The tables published under the (FIRM) for the proposed BFEs for each Administrative Procedure Act authority of § 67.4 are proposed to be community are available for inspection Statement. This matter is not a amended as follows:

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

St. Tammany Parish, Louisiana, and Incorporated Areas

Abita Creek...... Approximately 2,960 feet downstream from con- None +46 Unincorporated Areas of fluence with Abita Creek Tributary 1. St. Tammany Parish. Approximately 45 feet downstream from intersection None +116 with Churchill Downs Dr. Abita Creek Tributary 1 ...... From confluence with Abita Creek ...... None +48 Unincorporated Areas of St. Tammany Parish. To 1 mile upstream of confluence with Abita Creek .... None +51 Abita River Tributary 1 ...... From confluence with Abita River ...... None +23 Unincorporated Areas of St. Tammany Parish. Approximately 1,077 feet from intersection with State None +28 Highway 36. Bayou Chinchuba ...... Approximately 7,285 feet downstream from intersec- None +12 Unincorporated Areas of tion with Interstate 190. St. Tammany Parish, Town of Mandeville. Approximately 6,560 feet downstream from intersec- None +26 tion with Lotus Rd./Henry Meiners Rd. Bayou Lacombe ...... Approximately 182 feet upstream from intersection None +10 Unincorporated Areas of with Interstate 190. St. Tammany Parish. Approximately 2,993 feet upstream from intersection None +40 with State Highway 36. Bayou Lacombe Tributary 1 From confluence with Bayou Lacombe ...... None +11 Unincorporated Areas of St. Tammany Parish. At intersection with N. Pontchartrain Dr ...... None +20 Bayou Lacombe Tributary 2 From confluence of Bayou Lacombe ...... None +16 Unincorporated Areas of St. Tammany Parish. Approximately 50 feet upstream of intersection with None +19 Fish Hatchery Road. Bayou Lacombe Tributary 4 From confluence with Bayou Lacombe ...... None +21 Unincorporated Areas of St. Tammany Parish. Approximately 143 feet downstream from intersection None +25 with Fish Hatchery Road. Bayou Lacombe Tributary 5 From confluence with Bayou Lacombe ...... None +26 Unincorporated Areas of St. Tammany Parish. Approximately 6,789 feet upstream from intersection None +36 with Beaver Ball Rd. Bayou Lacombe Tributary 6 From confluence with Bayou Lacombe ...... None +34 Unincorporated Areas of St. Tammany Parish. Approximately 7,560 feet upstream from intersection None +44 with Hickory Highway. Bayou Liberty ...... Approximately 4,328 feet downstream fro intersection None +10 Unincorporated Areas of with Tammany Trace Bike Trail. St. Tammany Parish, City of Slidell. Approximately 105 feet downstream from intersection None +36 with Horse Shoe Island Road. Bayou Liberty Tributary 3 ..... From confluence with Bayou Liberty ...... None +17 Unincorporated Areas of St. Tammany Parish, City of Slidell. Approximately 930 feet upstream from intersection None +24 with Belair Blvd. Bayou Paquet ...... Approximately 2,584 feet downstream from intersec- None +11 Unincorporated Areas of tion with Park Drive/Park Avenue. St. Tammany Parish. Approximately 182 feet downstream from intersection None +14 with Tammany Trace Bike Trail. Bayou Tete L’Ours ...... Approximately 8,905 feet from confluence with +9 +11 Unincorporated Areas of Tchefuncte River. St. Tammany Parish. Approximately 100 feet downstream from intersection +16 +15 with Thackery St. Bayou de Zaire ...... Approximately 443 feet downstream from intersection None +11 Unincorporated Areas of with Dummy Line Rd. St. Tammany Parish. Approximately 4,019 feet upstream from intersection None +19 with Galatas Rd. Bedico Creek ...... Approximately 11,000 feet downstream from intersec- None +48 Unincorporated Areas of tion with Jim Willie Rd. St. Tammany Parish. Approximately 2,128 feet upstream from intersection None +59 with Jim Willie Rd. Bedico Creek Tributary 1 ...... Approximately 63 feet upstream from intersection with None +41 Unincorporated Areas of Gottschaulk Rd. St. Tammany Parish.

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

At the intersection with Hoover Rd ...... None +50 Bedico Creek Tributary 2 ...... From confluence with Bedico Creek ...... None +47 Unincorporated Areas of St. Tammany Parish. Approximately 3,010 feet upstream from confluence None +50 with Bedico Creek. Big Branch Bayou ...... Approximately 225 feet upstream from intersection None +22 Unincorporated Areas of with Interstate 12. St. Tammany Parish. Approximately 7,922 feet upstream from intersection None +27 with N. Dixie Ranch Rd. Big Branch Marsh Tributary 1 Approximately 93 feet upstream from intersection with None +11 Unincorporated Areas of Tammany Trace Bike Trail. St. Tammany Parish. Approximately 6,776 feet upstream from intersection None +22 with Lynwood Rd. Black River ...... Approximately 215 feet downstream from intersection None +11 Unincorporated Areas of with Old Ponchatoula Highway. St. Tammany Parish. Approximately 3,163 feet upstream from intersection None +23 with Brewster Rd. Black River Tributary 1 ...... From confluence with Black River ...... None +11 Unincorporated Areas of St. Tammany Parish. Approximately 180 feet upstream from intersection None +17 with Perriloux Rd. Black River Tributary 1 From confluence with Black River Tributary 1 ...... None +13 Unincorporated Areas of Unnamed Tributary. St. Tammany Parish. Approximately 1,205 feet upstream from intersection None +16 with Oak Park Dr. Blue Swamp Tributary 1 ...... Approximately 3,427 feet downstream from intersec- None +32 Unincorporated Areas of tion with Tammany Trace Bike Trail. St. Tammany Parish. Approximately 2,560 feet upstream from intersection None +42 with North Collins Boulevard. Bogue Chitto River ...... From confluence of Simmons Creek ...... None +65 Unincorporated Areas of St. Tammany Parish, Village of Sun. Approximately 6,024 feet upstream from confluence None +86 with Sandy Slough. Bogue Falaya Tributary 1 ..... From confluence with Bogue Falaya ...... None +18 Unincorporated Areas of St. Tammany Parish, City of Covington. Approximately 286 feet upstream from intersection None +29 with Joseph Rd. Cane Bayou ...... Approximately 844 feet downstream from intersection None +10 Unincorporated Areas of with Tammany Trace Bike Trail. St. Tammany Parish. Approximately 1155 feet upstream from intersection None +24 with Log Cabin Rd. Cane Bayou Tributary 1 ...... From confluence with Cane Bayou ...... None +10 Unincorporated Areas of St. Tammany Parish. Approximately 4,756 feet upstream from intersection None +11 with Area 3 Group Camp Road. Cane Bayou Tributary 2 ...... From confluence with Cane Bayou ...... None +14 Unincorporated Areas of St. Tammany Parish. At the intersection with Log Cabin Rd ...... None +27 Coon Fork ...... From confluence with Abita Creek ...... None +71 Unincorporated Areas of St. Tammany Parish. Approximately 7,776 feet upstream from confluence None +106 with Abita Creek. Crooked Bayou ...... From confluence with Old River ...... None +71 Unincorporated Areas of St. Tammany Parish. To confluence of Nichols Creek ...... None +74 Cypress Bayou ...... Approximately 88 feet downstream from the intersec- +12 +13 Unincorporated Areas of tion with U.S. Highway 190. St. Tammany Parish. Approximately 1,760 feet upstream from intersection None +29 with Firetower Road. Double Branch ...... Approximately 745 feet upstream from confluence None +56 Unincorporated Areas of with Mule Bay. St. Tammany Parish. Approximately 8,199 feet upstream from intersection None +85 with State Route 435. East Bedico Creek...... Approximately 5,317 feet downstream from con- None +17 Unincorporated Areas of fluence with Fox Branch. St. Tammany Parish. Approximately 3,385 feet upstream from intersection None +38 with N. Collins Blvd.

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

East Bedico Creek Tributary Approximately 797 feet North of Adrienne St. (Parish None +17 Unincorporated Areas of 1. boundary, no other references). St. Tammany Parish. Approximately 1,414 feet Southwest of Lavigne Rd./ None +21 Approximately 5,057 feet from Parish boundary. East Bedico Creek Tributary Approximately 2,469 feet upstream from confluence None +25 Unincorporated Areas of 2. with East Bedico Creek. St. Tammany Parish. Approximately 1,378 feet upstream from intersection None +37 with N. Collins Blvd. East Bedico Creek Tributary From confluence with East Bedico Creek ...... None +26 Unincorporated Areas of 3. St. Tammany Parish. Approximately 63 feet downstream from intersection None +47 with State Route 1077. East Bedico Creek Tributary From confluence with East Bedico Creek Tributary 3 None +38 Unincorporated Areas of 3 Unnamed Tributary. St. Tammany Parish. Approximately 9,372 feet upstream from confluence None +49 with East Bedico Creek Tributary 3. English Branch Tributary 1 ... From confluence with English Branch ...... None +44 Unincorporated Areas of St. Tammany Parish. Approximately 7,212 feet upstream from confluence None +50 with English Branch. Fox Branch ...... From confluence with East Bedico Creek ...... None +20 Unincorporated Areas of St. Tammany Parish. Approximately 3,319 feet upstream from intersection None +25 with Perriloux Road. French Branch ...... At intersection with Interstate Route 10 ...... None +17 Unincorporated Areas of St. Tammany Parish, City of Slidell, Town of Pearl River. Approximately 443 feet upstream from intersection None +26 with Highway Department Road. Gum Bayou Tributary...... Approximately 450 feet upstream from intersection None +14 Unincorporated Areas of with Interstate 59. St. Tammany Parish. Approximately 710 feet upstream from intersection None +30 with Hudson Rd. Gum Creek ...... At the intersection with State Route 36 ...... None +41 Unincorporated Areas of St. Tammany Parish. Approximately 4,638 feet upstream from intersection None +42 with East Archie Singletary Road. Holden’s Creek ...... At intersection with State Route 16 ...... None +66 Village of Sun. Approximately 544 feet upstream from intersection None +94 with Benson Rd. Horse Branch Tributary 1 ..... Approximately 710 feet upstream of Horse Branch None +31 Unincorporated Areas of Road intersection. St. Tammany Parish. Approximately 4,450 feet upstream of Lake Ramsey None +59 Road intersection. Horse Branch Tributary 2..... Approximately 1,000 feet downstream of Horse None +36 Unincorporated Areas of Branch Road. St. Tammany Parish. Approximately 250 feet upstream of Lake Ramsey None +49 Road intersection. Horse Branch Tributary 2 Approximately 320 feet downstream of Lake Ramsey None +38 Unincorporated Areas of Unnamed Tributary. Road intersection. St. Tammany Parish. Approximately 4,121 feet upstream of Lake Ramsey None +47 Road. House Creek ...... Confluence with Bogue Chitto River ...... None +92 Unincorporated Areas of St. Tammany Parish. Approximately 130 feet upstream of La Tung Road .... None +138 LA 36 North Tributary ...... Approximately 233 feet downstream of Tammany None +24 Town of Abita Springs. Trace Bike Trail. Approximately 4,800 feet upstream of Danny Park None +32 Drive intersection. Lake Pontchartrain ...... Base Flood Elevation changes ranging from 10 to 16 +9–13 +10–16 Town of Madisonville, feet in the form of Coastal AE/VE zones have been Town of Mandeville, City made. of Slidell, Unincor- porated Areas of St. Tammany Parish. Lateral B ...... Approximately 50 feet upstream of State Route 437 None +27 Unincorporated Areas of (North Lee Road). St. Tammany Parish. Approximately 680 feet upstream of Airport Road None +37 intersection.

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

Lateral B Tributary 1 ...... Confluence with Lateral B ...... None +28 Unincorporated Areas of St. Tammany Parish. Approximately 240 feet upstream of Springwood Drive None +31 intersection. Little Brushy Branch ...... Confluence with Pearl River Canal ...... None +50 Unincorporated Areas of St. Tammany Parish. Approximately 600 feet upstream of Jim Williams None +82 Road intersection. Little Creek ...... Approximately 75 feet upstream of Strain Road inter- None +29 Unincorporated Areas of section. St. Tammany Parish. Approximately 7,223 feet upstream of Strain Road None +31 intersection. Little Gum Creek ...... Confluence with Gum Creek ...... None +24 Town of Pearl River. Approximately 2,260 feet upstream of Easy Street None +35 intersection. Long Branch ...... Confluence with Abita River ...... None +29 Town of Abita Springs, Un- incorporated Areas of St. Tammany Parish. Approximately 1,100 feet upstream of Cleland Road None +94 intersection. Long Branch Tributary ...... Confluence with Long Branch ...... None +30 Unincorporated Areas of St. Tammany Parish. Approximately 3,735 feet upstream of Tarpon Springs None +41 Drive intersection. Long Branch Tributary 2 ...... Confluence with Long Branch ...... None +39 Unincorporated Areas of St. Tammany Parish, Town of Abita Springs. Approximately 5,150 feet upstream of Longleaf Drive None +58 intersection. Mayhaw Branch ...... Confluence with Bayou Chinchuba ...... None +15 Unincorporated Areas of St. Tammany Parish. Approximately 1,500 feet upstream of State Route 59 None +22 intersection. Mile Branch Tributary 1 ...... Confluence with Mile Branch ...... None +24 Unincorporated Areas of St. Tammany Parish, City of Covington. Approximately 485 feet downstream of M P Planche None +42 Road. Mill Creek ...... Confluence with Bogue Chitto River ...... None +68 Unincorporated Areas of St. Tammany Parish. Approximately 40 feet downstream of Dad Penton None +108 Road intersection. Mill Creek Tributary 1 ...... Confluence with Mill Creek ...... None +86 Unincorporated Areas of St. Tammany Parish. Approximately 245 feet downstream of Blue Heron None +137 Road. Moses Branch ...... Confluence with Talisheek Creek ...... None +45 Unincorporated Areas of St. Tammany Parish. Approximately 3,371 feet upstream of Ogise Richard- None +65 son Road. Mule Bay ...... Confluence with English Branch ...... None +51 Unincorporated Areas of St. Tammany Parish. Approximately 3,030 feet downstream of State Route None +67 435 intersection. Nichols Creek ...... Confluence with Crooked Bayou ...... None +71 Unincorporated Areas of St. Tammany Parish. Approximately 1,500 feet upstream of State Route 16 None +90 intersection. Old River ...... Approximately 1,000 feet downstream of confluence None +64 Unincorporated Areas of with Holden’s Creek. St. Tammany Parish, Village of Sun. Confluence of Bogue Chitto River ...... None +75 Parc du Lac ...... Confluence with Bayou Chinchuba ...... None +12 Unincorporated Areas of St. Tammany Parish, Town of Mandeville. Approximately 230 feet downstream of U.S. Highway None +12 190 intersection. Pearl River ...... Approximately 9 miles downstream of State Route 59 None +13 Unincorporated Areas of St. Tammany Parish.

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

Louisiana /Mississippi State Line ...... None +61 Pearl River Canal ...... Confluence with West Pearl River ...... None +28 Unincorporated Areas of St. Tammany Parish. Approximately 9,900 feet from Lock #3 Rd ...... None +61 Ponchitolawa Creek ...... Confluence with Tchefuncte River ...... +9 +10 Unincorporated Areas of St. Tammany Parish. Approximately 3,730 upstream of Jeffrie Street inter- None +33 section. Ponchitolawa Creek Tributary Approximately 690 feet upstream of confluence with None +30 Unincorporated Areas of 2. Ponchitolawa Creek. St. Tammany Parish. Approximately 5,700 feet upstream of Marion Street None +33 intersection. Pound Branch ...... Confluence with Talisheek Creek ...... None +67 Unincorporated Areas of St. Tammany Parish. Approximately 368 feet downstream of Dillard Road .. None +84 Pound Branch Tributary 1 ..... From confluence with Pound Branch ...... None +71 Unincorporated Areas of St. Tammany Parish. Approximately 1,650 feet upstream of confluence with None +75 Pound Branch Tributary 1. Simmons Creek ...... Confluence with Bogue Chitto River ...... None +65 Unincorporated Areas of St. Tammany Parish. Approximately 3,312 feet upstream of Confluence None +123 with Simmons Creek Tributary 1. Simmons Creek Tributary 1 .. Confluence with Simmons Creek ...... None +113 Unincorporated Areas of St. Tammany Parish. Approximately 312 feet upstream of Turkey Ridge None +163 Road intersection. Soap & Tallow Branch ...... Approximately 1,650 feet downstream of North White None +22 Unincorporated Areas of Chapel Road intersection. St. Tammany Parish. Approximately 70 feet downstream of Goslee Road None +31 intersection. Soap & Tallow Branch Tribu- Confluence with Soap & Tallow Branch ...... None +21 Unincorporated Areas of tary 1. St. Tammany Parish. Approximately 5,899 feet upstream of confluence with None +25 Turnpike Rd. Soap & Tallow Branch Tribu- Confluence with Soap & Tallow Branch Tributary 1 .... None +23 Unincorporated Areas of tary 1 Unnamed Tributary. St. Tammany Parish. Approximately 5,446 feet upstream of confluence with None +26 Soap & Tallow Branch Tributary 1. Southwind Branch ...... Intersection with Tammany Trace Bike Trail/Railroad None +29 Unincorporated Areas of St. Tammany Parish. Approximately 450 feet upstream of Hickory Highway None +35 intersection. Spanish Fork ...... Confluence with Abita Creek ...... None +69 Unincorporated Areas of St. Tammany Parish. Approximately 6,577 feet upstream of confluence with None +118 Abita Creek. Stratman Branch ...... Confluence with Tenmile Branch ...... None +65 Unincorporated Areas of St. Tammany Parish. Approximately 4,468 feet upstream of confluence with None +75 Tenmile Branch. Talisheek Creek ...... Confluence with Pearl River Canal ...... None +44 Unincorporated Areas of St. Tammany Parish. Confluence of Pound Branch ...... None +68 Talisheek Creek Tributary 1 Confluence with Talisheek Creek ...... None +51 Unincorporated Areas of St. Tammany Parish. Approximately 6,275 feet upstream of confluence with None +63 Talisheek Creek. Tchefuncte River Tributary 1 Confluence with Tchefuncte River ...... None +11 Unincorporated Areas of St. Tammany Parish. Approximately 165 feet downstream of State Route None +20 190. Tchefuncte River Tributary 2 Confluence with Tchefuncte River ...... None +13 Unincorporated Areas of St. Tammany Parish. Approximately 5,200 feet upstream of Tyler Street None +17 intersection. Tchefuncte River Tributary 3 Confluence with Tchefuncte River ...... None +17 City of Covington. Approximately 370 feet upstream of West 21st Street None +28 intersection.

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

Tenmile Branch ...... Confluence with Abita Creek ...... None +57 Unincorporated Areas of St. Tammany Parish. Approximately 1,700 feet upstream of State Route 21 None +127 intersection. Timber Branch ...... Confluence with Tchefuncte River ...... None +15 Unincorporated Areas of St. Tammany Parish. Approximately 3,100 feet upstream of Lake Placid None +22 Drive intersection. Tributary Canal ...... Approximately 100 feet upstream of Infantry Drive None +17 Unincorporated Areas of intersection. St. Tammany Parish. Approximately 3,640 feet upstream of intersection None +21 with Igloo Rd. Unnamed Creek 8 ...... Approximately 600 feet downstream of State Route +10 +11 Unincorporated Areas of 22 intersection. St. Tammany Parish. Approximately 3,350 feet upstream of State Route 22 None +17 intersection. Upper Bayou ...... From confluence with Bayou Chinchuba ...... None +16 Unincorporated Areas of St. Tammany Parish. Approximately 1,600 feet upstream of intersection None +28 with Tammany Trace Bike trail. Waterhole Branch ...... Confluence with Talisheek Creek ...... None +68 Unincorporated Areas of St. Tammany Parish. Approximately 1,100 feet downstream of Railroad Av- None +83 enue intersection. West Pearl River ...... Approximately 4,300 feet upstream of Interstate 10 None +12 Unincorporated Areas of intersection. St. Tammany Parish. Confluence with Pearl Canal ...... None +28 Wright’s Creek ...... Confluence with Bogue Chitto River ...... +60 +62 Village of Sun. Approximately 500 feet upstream of Kings Road inter- None +84 section.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Covington Maps are available for inspection at 609 North Columbia, Covington, LA 70433. City of Slidell Maps are available for inspection at 2056 Second St., Slidell, LA 70459. Town of Abita Springs Maps are available for inspection at 22161 Level St., Abita Springs, LA 70420. Town of Madisonville Maps are available for inspection at 403 St. Francis St., Madisonville, LA 70447. Town of Mandeville Maps are available for inspection at 3101 E. Causeway Approach, Mandeville, LA 70448. Town of Pearl River Maps are available for inspection at 39460 Willis Alley, Pearl River, LA 70452. Unincorporated Areas of St. Tammany Parish Maps are available for inspection at 21490 Koop Dr., Mandeville, LA 70471. Village of Folsom Maps are available for inspection at 84321 Railroad Ave., Folsom, LA 70437. Village of Sun Maps are available for inspection at 30285 Lock 3 Rd., Sun, LA 70463.

Chippewa County, Wisconsin, and Incorporated Areas

Chippewa River ...... Just upstream of the Jim Falls Dam Powerhouse ...... +961 +955 Unincorporated Areas of Chippewa County, City of Cornell. Just downstream of the Cornell Dam ...... +981 +980

* National Geodetic Vertical Datum.

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

+ North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Cornell Maps are available for inspection at City Hall, 222 Main Street, Cornell, WI 54732. Unincorporated Areas of Chippewa County Maps are available for inspection at Clerk’s Office, 711 North Bridge Street, Room 109, Chippewa Falls, WI 54729.

(Catalog of Federal Domestic Assistance No. DATES: Comments must be received by Avenue, SE., Washington, DC 20590 97.022, ‘‘Flood Insurance.’’) August 26, 2008. Comments received ([email protected] or 202–493–6044). Dated: August 4, 2008. after that date will be considered to the SUPPLEMENTARY INFORMATION: extent possible without incurring David I. Maurstad, Electronic Access and Filing Federal Insurance Administrator of the additional expense or delay. National Flood Insurance Program, ADDRESSES: Comments should reference You may submit or retrieve comments Department of Homeland Security, Federal Docket No. FRA–2008–0061 and may be online through http:// Emergency Management Agency. submitted the following ways: www.regulations.gov, which is available [FR Doc. E8–18529 Filed 8–11–08; 8:45 am] • E-Gov Web site: http:// 24 hours each day, 365 days each year. BILLING CODE 9110–12–P www.regulations.gov. This Web site Electronic submission and retrieval help allows the public to enter comments on and guidelines are available under the any Federal Register notice issued by help section of the Web site. An electronic copy of this document any agency. Follow the instructions for DEPARTMENT OF TRANSPORTATION may also be downloaded from Office of submitting comments. Federal Railroad Administration • the Federal Register’s home page at Fax: 1–202–493–2251. http://www.archives.gov/federal_register • Mail: DOT Docket Management 49 CFR Part 260 and the Government Printing Office’s System: U.S. Department of Web page at http://www.gpoaccess.gov. Transportation, Docket Operations, M– [Docket No. FRA–2008–0061] 30, West Building Ground Floor, Room Issued in Washington, DC on August 7, 2008. RIN 2130–AB91 W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590–0001. Joseph H. Boardman, Railroad Rehabilitation and • Hand Delivery: DOT Docket Administrator. Improvement Financing Program Management System; West Building [FR Doc. E8–18710 Filed 8–8–08; 12:00 pm] Ground Floor, Room W12–140, 1200 BILLING CODE 4910–06–P AGENCY: Federal Railroad New Jersey Avenue, SE., Washington, Administration (FRA), Department of DC 20590–0001 between 9 a.m. and 5 Transportation (DOT). p.m., Monday through Friday, except DEPARTMENT OF THE INTERIOR ACTION: Notice of proposed rulemaking Federal holidays. (NRPM); extension of comment period. Instructions: You should identify the Fish and Wildlife Service docket ID, FRA–2008–0061, at the SUMMARY: On June 9, 2008, FRA beginning of your comments. If you 50 CFR Part 17 published a Notice of Proposed submit your comments by mail, submit Rulemaking (NPRM) in the Federal [FWS–R1–ES–2007–0006; 92210–1117– two copies. To receive confirmation that 0000–B4] Register (73 FR 32515) proposing FRA received your comments, include a amending the eligibility and application RIN 1018–AU93 self-addressed stamped postcard. form and content criteria of the Railroad Internet users may submit comments at Rehabilitation and Improvement Endangered and Threatened Wildlife http://www.regulations.gov. Financing (RRIF) Program to ensure the and Plants; Revised Proposed long-term sustainability of the program, Note: Comments are posted without Designation of Critical Habitat for 12 promote competition in the railroad changes or edits to http:// Species of Picture-wing Flies From the industry, and reduce the risk of default www.regulations.gov, including any personal Hawaiian Islands for applicants and the Government. Due information provided. There is a privacy statement published on http:// AGENCY: Fish and Wildlife Service, to an administrative error, a Preliminary www.regulations.gov. Interior. Regulatory Evaluation (Evaluation) was ACTION: Proposed rule; reopening of not included in the docket. This notice FOR FURTHER INFORMATION CONTACT: John comment period, notice of availability announces an extension of the comment Kern, Attorney-Advisor, Office of the of draft economic analysis, and period until August 26, 2008 to allow Chief Counsel, Federal Railroad amended required determinations. for consideration of the Evaluation. Administration, 1200 New Jersey

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SUMMARY: We, the U.S. Fish and (72 FR 67428), the June 2008 DEA of (11) Economic data on the Wildlife Service (Service), announce the Critical Habitat Designation for the incremental costs of designating any reopening of the comment period on the Hawaiian Picture-wing Flies, and this particular area as critical habitat. revised proposed designation of critical document, including the amended (12) Information on any quantifiable habitat for 12 species of Hawaiian required determinations provided in economic or other potential benefits of picture-wing flies (Drosophila aglaia, D. this document. We will consider the proposed designation of critical differens, D. hemipeza, D. heteroneura, information and recommendations from habitat. Factors which may be D. montgomeryi, D. mulli, D. all interested parties. We are considered under the potential benefits musaphilia, D. neoclavisetae, D. obatai, particularly interested in comments of critical habitat designation may D. ochrobasis, D. substenoptera, and D. concerning: include, but are not limited to, aesthetic tarphytrichia) under the Endangered (1) The reasons why we should or considerations, recreational use, Species Act of 1973, as amended (Act). should not designate habitat as critical biodiversity, aquatic resources, intrinsic We also announce the availability of a habitat under section 4 of the Act (16 values, and benefits to local draft economic analysis (DEA) and an U.S.C. 1531 et seq.), including whether communities. amended required determinations the benefit of designation would (13) Any foreseeable economic, section of the proposal. We are outweigh threats to the species caused national security, or other relevant reopening the comment period to allow by the designation, such that the impacts that may result from the all interested parties an opportunity to designation of critical habitat is proposed designation, and in particular, comment simultaneously on the revised prudent; any impacts on small entities, and the proposed rule, the associated DEA, and (2) Specific information on: benefits of including or excluding areas the amended required determinations (a) The amount and distribution of that exhibit these impacts. Other section. If you submitted comments habitat for the 12 Hawaiian picture-wing impacts in addition to economic effects previously, you do not need to resubmit fly species; that may be considered in the them because we have already (b) What areas occupied at the time of designation of critical habitat may incorporated them into the public listing contain features essential for the include, but are not limited to, social record and will fully consider them in conservation of the species we should factors, ecological factors, and impacts preparation of the final rule. include in the designation and why, and on local communities. DATES: We will consider comments (c) Which areas not occupied at the (14) Whether the benefits of excluding received or postmarked on or before time of listing are essential to the any particular area from critical habitat September 11, 2008. conservation of the species and why. outweigh the benefits of including that ADDRESSES: You may submit comments (3) Land use designations and current area as critical habitat under section by one of the following methods: or planned activities in the subject areas 4(b)(2) of the Act, after considering the • Federal eRulemaking Portal: http:// and their possible impacts on the potential impacts and benefits of the www.regulations.gov. Follow the proposed critical habitat. proposed critical habitat designation. instructions for submitting comments. (4) Information on the extent to which (15) Whether we could improve or • U.S. mail or hand-delivery: Public any State and local environmental modify our approach to designating Comments Processing, Attn: RIN 1018– protection measures we reference in the critical habitat to provide for greater AV91; Division of Policy and Directives DEA may have been adopted largely as public participation and understanding, Management; U.S. Fish and Wildlife a result of the species’ listing. or to better accommodate public Service; 4401 N. Fairfax Drive, Suite (5) Information on whether the DEA concerns and comments. 222; Arlington, VA 22203. identifies all State and local costs and If you submitted comments or We will not accept e-mail or faxes. We benefits attributable to the proposed information during the initial comment will post all comments on http:// critical habitat designation, and period from November 28, 2007, to www.regulations.gov. This generally information on any costs and benefits January 28, 2008, on the proposed rule means that we will post any personal that we have overlooked. (72 FR 67427), please do not resubmit information you provide us (see the (6) Information on whether the DEA them. We will incorporate them into the ‘‘Public Comments’’ section below for makes appropriate assumptions public record as part of this comment more information). regarding current practices and any period, and we will fully consider them FOR FURTHER INFORMATION CONTACT: regulatory changes that are likely to in preparation of our final Patrick Leonard, Field Supervisor, occur if we designate critical habitat as determination. Our final determination Pacific Islands Fish and Wildlife Office, currently proposed. concerning revised proposed critical 300 Ala Moana Boulevard, Room 3–122, (7) Information on whether the DEA habitat will take into consideration all P.O. Box 50088, Honolulu, HI 96850; identifies all costs and benefits that written comments and any additional telephone 808–792–9400; facsimile could result from the designation. information we receive during both 808–792–9581. If you use a (8) Information on whether the DEA comment periods. On the basis of public telecommunications device for the deaf correctly assesses the effect on regional comments, we may, during the (TDD), call the Federal Information costs or benefits associated with any development of our final determination, Relay Service (FIRS) at 800–877–8339. land use controls that may result from find that areas proposed are not SUPPLEMENTARY INFORMATION: the proposed designation. essential, and are appropriate for (9) The extent to which the exclusion under section 4(b)(2) of the Public Comments description in the DEA of economic Act, or are not appropriate for We will accept written comments and impacts to public land management and exclusion. information during this reopened other activities is complete and You may submit your comments and comment period on our revised accurate. materials concerning our proposed rule, proposed designation of critical habitat (10) Information on areas that the the associated DEA, and our amended for the 12 Hawaiian picture-wing fly critical habitat designation could required determinations by one of the species that was published in the potentially impact to a disproportionate methods listed in the ADDRESSES Federal Register on November 28, 2007 degree. section. We will not consider comments

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sent by e-mail or fax or to an address not Federal actions concerning the 12 The purpose of the DEA is to identify listed in the ADDRESSES section. species of Hawaiian picture-wing flies and analyze the potential economic If you submit a comment via http:// for which we are proposing to designate impacts associated with the proposed www.regulations.gov, your entire critical habitat, refer to the November critical habitat designation for the 12 comment—including any personal 28, 2007, proposed revised designation Hawaiian picture-wing fly species. The identifying information—will be posted of critical habitat and the final listing DEA quantifies the economic impacts of on the Web site. If you submit a rule published in the Federal Register all potential conservation efforts for the hardcopy comment that includes on May 9, 2006 (71 FR 26835). 12 Hawaiian picture-wing fly species; personal identifying information, you It is our intent to discuss only those some of these costs will likely be may request at the top of your document topics directly relevant to the proposed incurred regardless of whether we that we withhold this information from designation of critical habitat in this designate critical habitat. The economic public review. However, we cannot notice. For more information on the impact of the proposed critical habitat guarantee that we will be able to do so. taxonomy and biology of the 12 species designation is analyzed by comparing We will post all hardcopy comments on of Hawaiian picture-wing flies, refer to two types of impacts: (1) Baseline http://www.regulations.gov. the final listing rule published in the impacts are those that would occur with Comments and materials we receive, Federal Register on May 9, 2006 (71 FR or without designation of critical as well as supporting documentation we 26835), and the revised proposed habitat, and (2) incremental impacts are used in preparing this notice, will be critical habitat rule published in the those that would occur only with available for public inspection on http:// Federal Register on November 28, 2007 critical habitat designation. Baseline www.regulations.gov, or by (72 FR 67428). impacts represent the costs incurred appointment, during normal business Section 3 of the Act defines critical regardless of whether critical habitat is hours, at the U.S. Fish and Wildlife habitat as: (1) The specific areas within designated. Incremental impacts Service, Pacific Islands Fish and the geographical area occupied by a represent the costs incurred specifically Wildlife Office (see FOR FURTHER species, at the time it is listed in with the designation of critical habitat INFORMATION CONTACT). accordance with the provisions of for the 12 Hawaiian picture-wing fly You may obtain copies of the section 4 of the Act, on which are found species. In other words, the incremental proposed rule and DEA by mail from the those physical or biological features (a) costs are those attributable solely to the Pacific Islands Fish and Wildlife Office essential to the conservation of the designation of critical habitat for the (see FOR FURTHER INFORMATION species, and (b) that may require special picture-wing flies that are above and CONTACT), by visiting the Federal management considerations or beyond the baseline costs; these are the eRulemaking Portal at protection; and (2) specific areas outside costs we may consider in the final http://www.regulations.gov, or on our the geographical area occupied by a designation of critical habitat. The Web site at http://www.fws.gov/ species at the time it is listed in analysis looks retrospectively at pacificislands. accordance with the provisions of baseline impacts incurred since the 12 section 4 of the Act, upon a Background Hawaiian picture-wing fly species were determination that such areas are listed, and forecasts both baseline and Under the terms of a settlement essential for the conservation of the incremental impacts likely to occur after agreement approved by the U.S. District species. If the proposed rule is made the proposed critical habitat is finalized. Court for the District of Hawaii on final, section 7 of the Act will prohibit The DEA provides estimated costs of the August 31, 2005 (CBD v. Allen, CV–05– the destruction or adverse modification foreseeable potential economic impacts 274–HA), we were to (1) make a final of critical habitat by any activity of the proposed critical habitat listing decision for the 12 picture-wing funded, authorized, or carried out by flies by May 6, 2006; (2) propose to any Federal agency. Federal agencies designation for the 12 Hawaiian picture- designate critical habitat by September proposing actions that may affect areas wing fly species from 2009 through 15, 2006; and (3) finalize a critical designated as critical habitat must 2028. habitat rule by April 17, 2007. A joint consult with us on the effects of their The draft economic analysis also stipulation was approved by the Court proposed actions, pursuant to section addresses how potential economic on April 18, 2007, to allow additional 7(a)(2) of the Act. impacts are likely to be distributed, time to reconsider the proposed rule in including an assessment of any local or light of comments received to the Draft Economic Analysis regional impacts of habitat conservation August 15, 2006, proposed designation Section 4(b)(2) of the Act requires that and the potential effects of conservation of approximately 18 acres as critical we designate or revise critical habitat activities on government agencies, habitat for 11 of the 12 species of based upon the best scientific and private businesses, and individuals. Hawaiian picture-wing flies (71 FR commercial data available, after taking Decision-makers can use the 46944), and to provide an opportunity into consideration the economic impact, information from the final economic for additional public comment. Under impact on national security, or any assessment to assess whether the effects the terms of the extension, we were other relevant impact of specifying any of the revised designation might unduly required to submit a proposed critical particular area as critical habitat. We burden a particular group or economic habitat rule to the Federal Register by have prepared a DEA of the proposed sector. The draft economic analysis also November 15, 2007, and a final critical revised critical habitat designation looks retrospectively at costs that have habitat rule by November 15, 2008. based on our November 28, 2007, been incurred since May 9, 2006, the On November 28, 2007, we published proposed rule to designate critical date we listed the 12 Hawaiian picture- a revised proposed designation of habitat for 12 species of Hawaiian wing fly species under the Act (71 FR approximately 9,238 acres (ac) (3,738 picture-wing flies. We request comment 26835), and considers those costs that hectares (ha)) as critical habitat in four on the accuracy of our methodology for may occur in the 20 years following the counties (City and County of Honolulu, distinguishing baseline and incremental designation of critical habitat. Because Hawaii, Maui, and Kauai), in Hawaii in costs, the assumptions underlying it, the draft economic analysis considers the Federal Register (72 FR 67427). For and alternate methodologies that may the potential economic effects of all additional information on previous merit consideration. actions relating to the conservation of

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the 12 Hawaiian picture-wing fly the DEA to be $5,345,730 at a 3 percent species or threatened species—costs species, including costs associated with discount rate, and $4,305,470 at a 7 associated with such actions are sections 4, 7, and 10 of the Act and percent discount rate. considered baseline costs. Once an area those attributable to the revised The DEA estimates that the is designated as critical habitat, designation of critical habitat, it may annualized post-designation proposed actions that have a Federal overestimate the potential economic incremental costs for the activities nexus in this area will also require impacts of the critical habitat described below during the period 2009 consultation and potential revision to designation. to 2028 may range from $44,733 using ensure that the action does not result in The analysis quantifies economic a 3 percent discount rate to $46,916 the destruction or adverse modification impacts of picture-wing fly critical using a 7 percent discount rate. If we of designated critical habitat. Costs habitat designation associated primarily determine that these costs would occur associated with these actions are with the following activities: (1) as a result of critical habitat designation, considered incremental costs. The DEA Preservation and watershed they can be considered in our analysis explains that incremental section 7 management in all but the Pit Crater of whether the benefits of including an consultation that takes place as a result unit on the Big Island; (2) game area as critical habitat outweigh the of critical habitat designation may fall management and public recreational benefits of excluding the area. The into one of three categories: (1) hunting in most of the units where land activity having the highest incremental Additional effort to address adverse is owned by the State; (3) potential for cost ranking is preservation and modification in a consultation that also future development on about 3 acres watershed management, with an involves jeopardy; (2) re-initiation of a (1.2 hectares) of the Pit Crater unit on annualized value of approximately previously concluded consultation to the Big Island; (4) harvesting of $23,969 using a 3 percent discount rate address adverse modification; and (3) commercial timber from portions of the to $25,568 using a 7 percent discount new consultation resulting entirely from Stainback Forest and Waiakea Forest rate. The second highest cost reflects a critical habitat designation (i.e., where a units; and (6) section 7 consultation possible opportunity loss of harvesting proposed action may affect unoccupied administrative costs. trees in the Stainback Forest and critical habitat). The DEA estimates that The total pre-designation baseline Waiakea Forest units, resulting in an there would be three project-level costs during the period from 2006 to annualized value of approximately informal consultations related to 2008 in the area proposed for critical $12,693 using a 3 percent discount rate Federal grants that would need to be habitat designation are estimated by the to $12,176 using a 7 percent discount reinitiated in 2009 to address picture- DEA to range from $750,130 using a 3 rate. wing fly critical habitat. There would percent discount rate to $808,100 using There may also be post-designation also be one programmatic consultation a 7 percent discount rate. Because these incremental costs of $68,590 using a 3 that would need to be reinitiated in costs are projected to occur whether percent discount rate to $56,000 using a 2009 related to the Hawai’i Volcano critical habitat is designated or not, they 7 percent discount rate from 2009–2028, National Park management plan, and cannot be considered in the Service’s related to future section 7 consultations subsequent programmatic consultations determination of whether the benefits of for preservation and watershed every five years. The DEA indicates that including an area as critical habitat management activities. All or nearly all since these consultations would be for outweigh the benefits of excluding the of the post-designation incremental preservation and watershed area. These costs are related to costs would be borne by Federal and management activities, no or only preservation and watershed State agencies, although a portion of the minimal project modifications would be management activities, and all or nearly preservation and watershed anticipated. all of the pre-designation baseline costs management costs would be borne by a We are soliciting data and comments have been or will be borne by Federal few private landowners. The combined from the public on the DEA, as well as and State agencies. A portion of the post-designation incremental cost for all on all aspects of the proposed rule and preservation and watershed activities is projected to be $685,450 our amended required determinations. management costs has been borne by a using a 3 percent discount rate, and We may revise the proposed rule or its few private landowners. $531,780 using a 7 percent discount supporting documents to incorporate or The annualized post-designation rate. address information we receive during baseline costs during the period 2009 to Only the incremental costs of this comment period. In particular, we 2028 for preservation and water designating critical habitat, over and may exclude an area from critical management activities are estimated to above the costs associated with species habitat if we determine that the benefits range from $348,845 using a 3 percent protection under the Act more of excluding the area outweigh the discount rate to $379,753 using a 7 generally, may be considered in benefits of including the area as critical percent discount rate. Because these designating critical habitat. Therefore, habitat, provided the exclusion will not costs are projected to occur whether the methodology for distinguishing result in the extinction of the species. critical habitat is designated or not, they these two categories of costs is would not be considered in the important. This is particularly true in Proposed Exclusions Under 4(b)(2) of Service’s determination of whether the the current case, where approximately the Act benefits of including an area as critical 90 percent of the total costs of species Under section 4(b)(2) of the Act, we habitat outweigh the benefits of conservation over the next 20 years are may exclude an area from critical excluding the area. All or nearly all of projected to be baseline costs, and 10 habitat if we determine that the benefits the post-designation baseline costs percent are projected to be incremental of such exclusion outweigh the benefits would be borne by Federal and State costs associated with the critical habitat of including that particular area as agencies, although a portion of the designation. critical habitat, unless failure to preservation and watershed In the absence of critical habitat, designate that specific area as critical management costs would be borne by a Federal agencies must ensure that any habitat will result in the extinction of few private landowners. The combined actions they authorize, fund, or carry the species. We may exclude an area post-designation baseline cost for these out are not likely to jeopardize the from designated critical habitat based on conservation activities is estimated by continued existence of any endangered economic impacts, national security, or

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any other relevant impact. Under of rare species within the watershed. absence of critical habitat designation, section 4(b)(2) of the Act, we must Specific management actions to address these conservation recommendations consider all relevant impacts, including feral ungulates include the construction would still be included within the economic impacts. For example, we of fences surrounding 10 management PKWMA invasive species control consider whether there are landowners units and removal of ungulates within program. Accordingly, we believe that that have developed conservation plans the PKWMA. few additional regulatory benefits for the area, or whether there are The nonnative plant control program would be derived by including the MLP conservation partnerships that would be within PKWMA focuses on weeds that lands within the area designated as encouraged by designation of, or modify habitat, prioritizing weeds critical habitat for Drosophila exclusion of lands from, critical habitat. according to the degree of threat to neoclavisetae beyond those native ecosystems, and preventing the We also consider any social impacts that conservation benefits already being introduction of new weeds. The weed might occur because of the designation. achieved through the implementation of During the development of a final control program includes mapping and the PKWMA Watershed Management designation, we will consider economic monitoring along established transects Plan (WMP). and other relevant impacts, including and manual/mechanical control. Natural additional conservation plans that may resource monitoring and research There have been no section 7 be available, with regard to potential address the need to track biological and consultations regarding Drosophila exclusion from the final critical habitat physical resources of the PKWMA, and neoclavisetae or its host plants with the designation under section 4(b)(2) of the evaluate changes to these resources in PKWMA to date. The DEA anticipates Act. order to guide management programs. that there would be two informal In preparing this notice, we have Vegetation is monitored through consultations associated with projects to determined that voluntary conservation permanent photographic points, remove non-native species over the next efforts by private landowners are vital nonnative species are monitored along 13 years. It also predicts that no formal for the conservation and recovery of the permanent transects, and rare, endemic, consultations would be likely to occur 12 Hawaiian picture-wing fly species. and indigenous species are monitored. over the 20-year timeframe of the As one example, significant progress has Logistical and other support for analysis. The two informal section 7 been made in habitat restoration on approved research projects, interagency consultations anticipated by the DEA Maui Land and Pineapple Company’s cooperative agreements, and remote would take place based on the species (MLP) lands within the Puu Kukui survey trips within the watershed are presence in the area. Accordingly, Watershed Management Area also provided. section 7 consultation under the (PKWMA), located in the West Maui At this time, we are evaluating the jeopardy standard would be required for Mountains. The proposed 584-acre (237- sufficiency of protection that the ha) critical habitat unit boundary for conservation activities being conducted Federal activities that may affect D. Drosophila neoclavisetae (Puu Kukui by the MLP are providing for the 12 neoclavisetae, regardless of critical Unit 1) falls completely within the picture-wing flies and features essential habitat designation. We do not foresee PKWMA. Since 1988, the MLP has for their conservation on their lands any additional consultations beyond proactively managed their 450 acres (450 acres (182 ha)) that fall within the those anticipated by the DEA, and (182 hectares (ha)) within the PKWMA 584-acre (237-ha) proposed critical predict that the section 7 consultation and is currently in its 15th year of habitat unit (Puu Kukui Unit 1). process for critical habitat would be contract with the State of Hawaii’s Therefore, we are specifically soliciting unlikely to result in additional Natural Area Partnership (NAP) public comments on the possible protections for the species. Program to preserve the native exclusion of the MLP lands within Consequently, there would be little biodiversity of the company’s proposed Puu Kukui Unit 1 under regulatory benefit of designating critical conservation lands. At just over 8,600 section 4(b)(2) of the Act. habitat on the MLP lands within Puu Kukui Unit 1. acres (3,483 ha), the PKWMA is the Benefits of Inclusion largest privately owned preserve in the The final listing rule for the 12 The benefits of including lands in State. picture-wing flies (71 FR 26835) In 1993, the MLP became the first critical habitat can be regulatory, educational, or promote the recovery of acknowledged the importance of this private landowner participant in the area to the overall conservation of NAP program. They are pursuing four species. The principal regulatory benefit Drosophila neoclavisetae (Service 2006). management programs stipulated in of designating critical habitat in this The MLP is aware of the areas where D. their Long Range Management Plan that area would be that Federal actions neoclavisetae occurs on their property, emphasizes reducing nonnative species affecting D. neoclavisetae would require that immediately threaten the consultation under section 7 of the Act. and is already implementing management area (Maui Land and Consultation would ensure that a conservation actions to benefit the Pineapple Company 1999). The primary proposed action does not result in the species (MLP 2008, p. 2). We therefore management goals within PKWMA are destruction or adverse modification of believe that any additional educational to: (1) Eliminate ungulate activity in all critical habitat. The most likely Federal benefits resulting from the designation Puu Kukui management units; (2) nexus would be associated with Service of critical habitat on these lands would reduce the range of habitat-modifying funding for management activities that be minimal. The designation of critical weeds and prevent introduction of target invasive species removal, and the habitat may provide benefits to the nonnative plants; (3) reduce the likely outcome of a section 7 recovery of a species, however, in this negative impacts of non-native consultation would be conservation case the MLP is already committed to invertebrates and small animals; (4) recommendations to avoid stands of implementing conservation actions on monitor and track biological and Cyanea kunthiana and Cyanea their lands under the existing watershed physical resources in the watershed in macrostegia ssp. macrostegia when management plan (WMP), and any order to improve management applying herbicides, or to use backpack additional benefits to the recovery of understanding of the watershed’s sprayers to specifically target herbicide this species beyond those already being resources; and (5) prevent the extinction application. However, even in the realized would be limited.

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Benefits of Exclusion landowners with a positive incentive to Endangered Species Act shall be The MLP has a history of entering into undertake voluntary conservation deemed endangered or threatened under conservation agreements with Federal activities on their lands, particularly the State law, and that it is unlawful and State agencies and other private where there is no regulatory under the State law (with some organizations on their lands. These requirement to implement such actions. exceptions) to ’’take’’ such species, or to possess, sell, carry or transport them. agreements further their mission of Weighing Benefits of Exclusion and The statutory protections provided practicing prudent stewardship of their Benefits of Inclusion land and water resources to ensure the under State law provide additional We believe the proactive management assurances that exclusion of the MLP protection of rare and endangered plant of Drosophila neoclavisetae habitat and animal species, and water resources lands from critical habitat designation provided under the Maui Land and would not result in extinction of crucial to the community. The Pineapple Company Watershed Drosophila neoclavisetae. continued implementation of the WMP Management Plan provides significant In summary, there may be few by the MLP will benefit Drosophila benefits to this species. In contrast, the regulatory, educational, or recovery neoclavisetae through actions that benefits of including their lands as benefits from the exclusion of the MLP manage invasive species and restore critical habitat would likely be minor, lands from critical habitat designation. native species habitat. The WMP since there have been no section 7 On the other hand, there may be greater provides a significant conservation consultations in the area since the conservation benefits that would result benefit to D. neoclavisetae’s host plant species was listed in 2006. If the MLP from the exclusion of these lands, which populations in the area, and we have a lands within the proposed Puu Kukui— include the implementation of reasonable expectation that the Unit 1 were to be excluded from critical affirmative actions for controlling strategies and measures will be habitat designation, the Puu Kukui invasive species, protecting host plant effective. WMA plan would continue to provide habitat, monitoring of native species, We believe that Drosophila conservation benefits to the species and restoration activities. Accordingly, neoclavisetae is benefiting substantially through the ongoing implementation of we are requesting public comments on from the MLP’s proactive management strategies and measures that are whether the benefits of excluding this actions, which include reducing consistent with currently accepted area from critical habitat designation ungulate browsing and habitat principles of conservation biology. would outweigh the benefits of its conversion, competition with nonnative inclusion, and thus whether the MLP weeds, and the risk of fire. These Will Exclusion Result in Extinction of the Species? lands should be excluded under section management actions also include the 4(b)(2) of the Act. reintroduction of currently extirpated We believe that the exclusion of the native species into restored habitats. MLP lands within the proposed Puu Required Determinations—Amended The exclusion of the MLP lands from Kukui—Unit 1 from the final In our November 28, 2007, proposed the proposed Puu Kukui—Unit 1 would designation of critical habitat would not critical habitat rule (72 FR 67428), we allow us to continue working with this result in the extinction of the species. said that we would defer our landowner in a spirit of cooperation and The continued implementation of their determination of compliance with partnership. The MLP management plan ongoing management programs will several statutes and Executive Orders acknowledges a shared interest in provide comparable or greater net until the information concerning promoting healthy ecosystems and in conservation benefits than those that potential economic impacts of the protecting populations and habitat of D. would result from critical habitat designation and potential effects on neoclavisetae. Since the area has been designation. These management landowners and stakeholders became actively managed as a preserve since programs provide tangible conservation available in the DEA. In this document 1988, there is a reasonable expectation benefits that reduce the likelihood of we affirm the information in our that the conservation management extinction for D. neoclavisetae, and proposed rule concerning Executive strategies and actions will continue to increase the likelihood of its recovery. Order (E.O.) 13132, E.O. 12988, the be implemented for the benefit of D. In addition, there are no known threats Paperwork Reduction Act, and the neoclavisetae’s habitat in the in the PKWMA associated with Federal President’s memorandum of April 29, foreseeable future. Imposing an actions requiring section 7 consultation, 1994, ‘‘Government-to-Government additional layer of section 7 so extinction of the species as a Relations with Native American Tribal consultation by designating critical consequence of not designating critical Governments’’ (59 FR 22951). However, habitat could undermine our existing habitat would be unlikely. Further, based on the DEA, we revise our conservation partnership with the MLP because the 450 ac (182 ha)) of the required determinations concerning and remove their incentive to accept the MLP’s lands we are considering E.O. 12866, the Regulatory Flexibility additional time and expense of excluding from critical habitat Act, E.O. 13211 (Energy, Supply, management planning. We believe that designation are occupied by D. Distribution, and Use), the Unfunded the designation of critical habitat would neoclavisetae, section 7 consultation Mandates Reform Act, and E.O. 12630 strain the existing proactive working would be required even in the absence (Takings). relationship we share with the MLP, of critical habitat designation, and any and may hinder future cooperative Federal actions that may affect the Regulatory Planning and Review conservation projects. species would be evaluated under the The Office of Management and Budget Excluding the MLP lands from critical jeopardy standard of section 7 of the (OMB) has determined that this rule is habitat designation would acknowledge Act, which provides assurances that the not significant and has not reviewed their positive contribution to species would not become extinct. this rule under Executive Order 12866 conservation on Maui. It would also In addition, § 195D–4 of the Hawaii (E.O. 12866). OMB bases its reduce the cost of additional section 7 Revised Statutes, Endangered species determination upon the following four consultation, which we believe would and threatened species, stipulates that criteria: be unnecessary. We are hopeful that this species determined to be endangered or (a) Whether the rule will have an recognition would provide other threatened under the Federal annual effect of $100 million or more on

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the economy or adversely affect an impact is meant to apply to a typical agencies are not considered small economic sector, productivity, jobs, the small business firm’s business entities, and State governments are not environment, or other units of the operations. considered small government government. To determine if the proposed jurisdictions for purposes of the (b) Whether the rule will create designation of critical habitat for the 12 Regulatory Flexibility Act (RFA) and inconsistencies with other Federal Hawaiian picture-wing fly species Small Business Regulatory Enforcement agencies’ actions. would affect a substantial number of Fairness Act (SBREFA). (c) Whether the rule will materially small entities, we considered the affect entitlements, grants, user fees, number of small entities affected within The Board of Water Supply of the City loan programs, or the rights and particular types of economic activities. and County of Honolulu may experience obligations of their recipients. In order to determine whether it is incremental costs for conservation on its (d) Whether the rule raises novel legal appropriate for our agency to certify that land in the Makaha Valley and Mt. or policy issues. this rule would not have a significant Ka‘ala units. However, the RFA/ Regulatory Flexibility Act (5 U.S.C. 601 economic impact on a substantial SBREFA defines small governmental et seq.) number of small entities, we considered jurisdiction as the government of a city, each industry or category individually. county, town, school district, or special Under the Regulatory Flexibility Act In estimating the numbers of small district with a population of less than (RFA) (5 U.S.C. 601 et seq. ), as entities potentially affected, we also 50,000. Accordingly, the City and amended by the Small Business considered whether their activities have County of Honolulu is not considered a Regulatory Enforcement Fairness Act (5 any Federal involvement; some kinds of small government jurisdiction. U.S.C. 802(2)) (SBREFA), whenever an activities are unlikely to have any Nonprofit organizations such as agency is required to publish a notice of Federal involvement. The designation of rulemaking for any proposed or final critical habitat will not affect activities Kamehameha Schools, the Nature rule, it must prepare and make available that do not have any Federal Conservancy of Hawai‘i (TNCH), the for public comment a regulatory involvement; designation of critical Queen Emma Foundation, and flexibility analysis that describes the habitat affects activities conducted, Watershed Partnerships could effect of the rule on small entities (i.e., funded, permitted, or authorized by experience incremental costs associated small businesses, small organizations, Federal agencies. with (1) the loss of property value for 3 and small government jurisdictions). If we finalize this proposed critical acres of land in the Pit Crater unit; (2) However, no regulatory flexibility habitat designation, Federal agencies conservation projects on managed lands analysis is required if the head of the must consult with us under section 7 of including the Pu‘u Kolekole, Pu‘u agency certifies the rule will not have a the Act if their activities may affect Kukui, Palikea, Pu‘u Kaua, and Kalua‘a significant economic impact on a designated critical habitat. Gulch units; (3) conservation projects on substantial number of small entities. Consultations to avoid the destruction land in the Kohala Mountains West Based on our DEA of the proposed or adverse modification of critical unit; and (4) conservation projects in the revised designation, we provide our habitat would be incorporated into the Wailupe, Pu‘u Kolekoke, Pu‘u Kukui, analysis for determining whether the existing consultation process. Kohala Mountains East, and Kohala proposed rule would result in a Chapter 4 of the DEA evaluates the Mountains west respectively. However, significant economic impact on a potential economic effects of the none of these nonprofit organizations substantial number of small entities. proposed revised designation on small According to the Small Business are considered ‘‘small organizations’’ for entities, based on the estimated purposes of the RFA/SBREFA. Administration (SBA), small entities incremental impacts associated with the include small organizations, such as proposed rulemaking. The screening The James Campbell Co. LLC, Maui independent nonprofit organizations; analysis is based on the estimated Land and Pineapple Company, Inc., and small governmental jurisdictions, impacts associated with the proposed Moloka‘i Ranch are private companies including school boards and city and rulemaking as described in chapters 3 that could experience incremental town governments that serve fewer than and 4 and Appendix C of the DEA. The impacts associated with critical habitat 50,000 residents; and small businesses analysis evaluates the potential for designation, however, none of these (13 CFR 121.201). Small businesses economic impacts related to several businesses are considered to be small include manufacturing and mining categories, including: (1) Preservation businesses for purposes of the RFA/ concerns with fewer than 500 and watershed management, (2) the SBREFA. In this regard, the DEA employees, wholesale trade entities purchase of Honouliuli Preserve, (3) concludes that none of the incremental with fewer than 100 employees, retail game management, (4) timber harvest, economic impacts associated with and service businesses with less than $5 (5) property values, and (6) designating critical habitat would be million in annual sales, general and administrative costs associated with expected to fall on small entities. heavy construction businesses with less section 7 consultation. than $27.5 million in annual business, Incremental economic impacts In summary, we have considered special trade contractors doing less than associated with section 7 consultations whether the proposed critical habitat $11.5 million in annual business, and would fall on the U.S. Fish and Wildlife designation would result in a significant agricultural businesses with annual Service, U.S. Army Corps of Engineers, economic impact on a substantial sales less than $750,000. To determine National Park Service, and Hawai‘i number of small entities, and do not if potential economic impacts to these Department of Lands and Natural anticipate any substantial impacts on small entities are significant, we Resources. The Hawai‘i Department of any small entities. We therefore certify considered the types of activities that Lands and Natural Resources may also that, if promulgated, the proposed might trigger regulatory impacts under experience an incremental economic revised designation would not have a this proposed critical habitat impact associated with the opportunity significant economic impact on a designation as well as types of project loss of not selling mature trees from a substantial number of small entities. modifications that may result. In portion of the Waiakea Timber Therefore, an initial regulatory general, the term significant economic Management Area. However, Federal flexibility analysis is not required.

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Executive Order 13211—Energy Supply, The designation of critical habitat Authority Distribution, and Use does not impose a legally binding duty The authority for this action is the On May 18, 2001, the President issued on non-Federal government entities or Endangered Species Act of 1973, as E.O. 13211 on regulations that private parties. Under the Act, the only amended (16 U.S.C. 1531 et seq.). significantly affect energy supply, regulatory effect is that Federal agencies must ensure that their actions do not Dated: August 4, 2008. distribution, and use. E.O. 13211 David M. Verhey, requires agencies to prepare Statements destroy or adversely modify critical habitat under section 7. Non-Federal Acting Assistant Secretary for Fish and of Energy Effects when undertaking Wildlife and Parks. certain actions. OMB’s guidance for entities that receive Federal funding, [FR Doc. E8–18519 Filed 8–11–08; 8:45 am] implementing this Executive Order assistance, permits, or otherwise require outlines nine outcomes that may approval or authorization from a Federal BILLING CODE 4310–55–P constitute ‘‘a significant adverse effect’’ agency for an action, may be indirectly impacted by the designation of critical when compared to no regulatory action. DEPARTMENT OF THE INTERIOR The DEA finds none of these criteria habitat. However, the legally binding duty to avoid destruction or adverse relevant to this analysis (Chapter 4 of Fish and Wildlife Service the DEA). Thus, based on information in modification of critical habitat rests squarely on the Federal agency. the DEA, we do not expect conservation 50 CFR Part 17 activities within proposed critical Furthermore, to the extent that non- habitat for the 12 Hawaiian picture-wing Federal entities are indirectly impacted [FWS–R1–ES–2008–0073; 14420–1113– 0000–C5] fly species to lead to energy-related because they receive Federal assistance impacts. As such, we do not expect the or participate in a voluntary Federal aid program, the Unfunded Mandates Endangered and Threatened Wildlife proposed designation of critical habitat and Plants; 90-Day Finding on a to significantly affect energy supplies, Reform Act would not apply; nor would critical habitat shift the costs of the large Petition To Remove the Bliss Rapids distribution, or use, and a Statement of Snail (Taylorconcha serpenticola) Energy Effects is not required. entitlement programs listed above on to State governments. From the List of Endangered and Threatened Wildlife; Notice of Unfunded Mandates Reform Act (2 (b) We do not believe that the Document Availability. U.S.C. 1501 et seq.) proposed designation will significantly In accordance with the Unfunded or uniquely affect small governments AGENCY: Fish and Wildlife Service, Mandates Reform Act (2 U.S.C. 1501), because it will not produce a Federal Interior. we make the following findings: mandate of $100 million or greater in ACTION: Notice of document availability. (a) The rule will not produce a any year, that is, it is not a ‘‘significant Federal mandate. In general, a Federal regulatory action’’ under the Unfunded SUMMARY: We, the U.S. Fish and mandate is a provision in legislation, Mandates Reform Act. The proposed Wildlife Service (Service), announce the statute, or regulation that would impose designation of critical habitat imposes availability of new information that may an enforceable duty upon State, local, or no obligations on State or local impact our status review for the Bliss tribal governments, or the private sector, governments. The SBA does not Rapids snail (Taylorconcha and includes both ‘‘Federal consider the Federal Government to be serpenticola). This information has intergovernmental mandates’’ and a small governmental jurisdiction or become available since the close of the ‘‘Federal private sector mandates.’’ entity. Consequently, we do not believe comment period on our 90-day finding These terms are defined in 2 U.S.C. that the revised critical habitat (72 FR 31250) on a petition to remove 658(5)–(7). ‘‘Federal intergovernmental designation would significantly or the Bliss Rapids snail from the Federal mandate’’ includes a regulation that uniquely affect small government List of Endangered and Threatened ‘‘would impose an enforceable duty entities. As such, a Small Government Wildlife, pursuant to the Endangered upon State, local, or tribal Agency Plan is not required. Species Act of 1973, as amended (Act). Interested members of the public are governments,’’ with two exceptions. It Executive Order 12630—Takings excludes ‘‘a condition of Federal invited to submit comments on this new assistance.’’ It also excludes ‘‘a duty In accordance with E.O. 12630 information as it applies to the listing arising from participation in a voluntary (‘‘Government Actions and Interference status of the Bliss Rapids snail. Federal program,’’ unless the regulation with Constitutionally Protected Private DATES: To ensure consideration in the ‘‘relates to a then-existing Federal Property Rights’’), we have analyzed the 12-month finding on this petition, program under which $500,000,000 or potential takings implications of comments and information should be more is provided annually to State, proposing critical habitat for the 12 submitted to us by August 27, 2008. local, and tribal governments under Hawaiian picture-wing fly species in a ADDRESSES: You may submit comments entitlement authority,’’ if the provision takings implications assessment. The by one of the following methods: would ‘‘increase the stringency of takings implications assessment • Federal eRulemaking Portal: http:// conditions of assistance’’ or ‘‘place caps concludes that the proposed designation www.regulations.gov. Follow the upon, or otherwise decrease, the Federal of critical habitat for the 12 Hawaiian instructions for submitting comments. Government’s responsibility to provide picture-wing fly species does not pose • U.S. mail or hand-delivery: Public funding’’ and the State, local, or tribal significant takings implications for Comments Processing, Attn: Docket governments ‘‘lack authority’’ to adjust lands within or affected by the proposed FWS–R1–ES–2008–0073; Division of accordingly. ‘‘Federal private sector designation. Policy and Directives Management; U.S. mandate’’ includes a regulation that Authors Fish and Wildlife Service; 4401 N. ‘‘would impose an enforceable duty Fairfax Drive, Suite 222; Arlington, VA upon the private sector, except as (i) a The primary authors of this notice are 22203. condition of Federal assistance; or (ii) a the staff of the Endangered Species We will not accept e-mail or faxes. We duty arising from participation in a Program, Pacific Region, U.S. Fish and will post all comments on: http:// voluntary Federal program.’’ Wildlife Service. www.regulations.gov. This generally

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means that we will post any personal information includes a draft status identifying information—will be posted information you provide us (see below review for the Bliss Rapid Snail (Draft on the Web site. If your submission is for more information). Status Review), prepared in February made via a hardcopy that includes FOR FURTHER INFORMATION CONTACT: 2008; peer reviews of the Draft Status personal identifying information, you Jeffery L. Foss, Field Supervisor, U.S. Review; a manuscript examining the may request at the top of your document Fish and Wildlife, Service Snake River genetic structure of Bliss Rapids snail that we withhold this information from Fish and Wildlife Office, by mail at populations; and documentation from a public review. However, we cannot 1387 S. Vinnell Way, Room 368, Boise, recent expert panel convened to assess guarantee that we will be able to do so. ID 83709; by telephone at 208/378– the status of the Bliss Rapids snail. We will post all hardcopy submissions 5243; by facsimile at 208/378–5262; or Comments particularly are sought on http://www.regulations.gov. by electronic mail at: concerning: Comments and materials we receive, [email protected]. (1) Information and data in the Draft as well as supporting documentation we Status Review; SUPPLEMENTARY INFORMATION: used in preparing this petition finding, (2) Peer review comments on the Draft will be available for public inspection Background Status Review; on http://www.regulations.gov, or by On December 26, 2006, we received a (3) The relevance of the new genetic appointment, during normal business petition filed by the State of Idaho and information to the listing status of the hours at the U.S. Fish and Wildlife the Idaho Power Company to remove Bliss Rapids snail; Service Snake River Fish and Wildlife the Bliss Rapids snail from the Federal (4) Information and data used by the Office, 1387 S. Vinnell Way, Room 368, List of Endangered and Threatened expert panel; and, Boise, ID 83709; by telephone at 208/ Wildlife in accordance with the (5) The expert panel’s discussion of 378–5243. provisions of section 4 of the Act. threats to the Bliss Rapids snail and On June 6, 2007, we published a ongoing conservation actions or Author regulatory actions that address these substantial 90-day finding on the The primary authors of this notice are threats. petition to remove the Bliss Rapids snail staff of the Snake River Fish and These materials are available for from the List of Endangered and Wildlife Office, U.S. Fish and Wildlife review at the following Web sites: Threatened Wildlife (72 FR 31250), Service. initiated a status review, and opened a http://www.regulations.gov. 60-day public comment period. http://www.fws.gov/idaho/Index.cfm. Authority Subsequent to the public comment If you wish to comment, you may The authority for this action is the period, new information has become submit your comments and materials Endangered Species Act of 1973, as available that is relevant to our status concerning this new information related amended (16 U.S.C. 1531 et seq.). review. To ensure that the status review to the petition finding by one of the Dated: July 24, 2008. is complete and based on the best methods listed in the ADDRESSES available scientific information, we are section. Kenneth Stansell, soliciting information on this new If you submit information via http:// Acting Director, Fish and Wildlife Service. information as it relates to the listing www.regulations.gov, your entire [FR Doc. E8–18310 Filed 8–11–08; 8:45 am] status of the Bliss Rapids snail. The new submission—including your personal BILLING CODE 4310–55–P

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Notices Federal Register Vol. 73, No. 156

Tuesday, August 12, 2008

This section of the FEDERAL REGISTER that the proposed action is not a major Title: Marine Mammal Health and contains documents other than rules or federal action significantly affecting the Stranding Response Program Survey for proposed rules that are applicable to the quality of the human environment. Stranding Network Participants. public. Notices of hearings and investigations, Thus, a Finding of No Significant OMB Control Number: None. committee meetings, agency decisions and Impact (FONSI) was made. Form Number(s): None. rulings, delegations of authority, filing of Type of Request: Regular submission. FOR FURTHER INFORMATION CONTACT: petitions and applications and agency Burden Hours: 294. statements of organization and functions are Stephen K. Chick, State Conservationist, Number of Respondents: 294. examples of documents appearing in this U.S. Department of Agriculture, Natural section. Average Hours per Response: 1. Resources Conservation Service, Federal Needs and Uses: The National Marine Building, Room 152, 100 Centennial Fisheries Service’s (NMFS) Marine Mall North, Lincoln, Nebraska 68508– DEPARTMENT OF AGRICULTURE Mammal Health and Stranding 3866; telephone (402) 437–5300. Response Program will conduct program Natural Resources Conservation SUPPLEMENTARY INFORMATION: The evaluations of the six NMFS regional Service sponsoring local organization concurs stranding networks: Northeast, with this determination and agrees with Southeast, Southwest, Northwest, Environmental Assessment; carrying forward the proposed project. Alaska, and Pacific Islands Regions. A Rehabilitation of Grade Stabilization Structure W–3 does not meet NRCS survey will be used to gather data from Structure W–3, Papillion Creek safety and performance standards for a a cross-section of stranding network Watershed, Washington County, NE High Hazard Class structure. The participants in each region. The data proposed action is to rehabilitate will be collected regarding performance, AGENCY: Natural Resources Structure W–3 to current NRCS High organizational structure, objectives, and Conservation Service, USDA. Hazard Class requirements and extend needs of the program. The information ACTION: Notice of Availability, Finding its life for 90 years. The following will be used to prioritize and discuss of No Significant Impact. actions are proposed: The existing issues of concern and assist with future program management and planning. SUMMARY: The Natural Resources principal spillway would be removed Affected Public: Not-for-profit Conservation Service (NRCS) has and replaced, the auxiliary spillway institutions. prepared an Environmental Assessment would be raised and an additional auxiliary spillway would be Frequency: One-time only. in compliance with the National Respondent’s Obligation: Voluntary. Environmental Policy Act (NEPA), as constructed, and the top of dam would be raised to increase storage capacity. OMB Desk Officer: David Rostker, amended. Pursuant to the implementing (202) 395–3897. regulations for NEPA (40 CFR parts Information regarding this finding Copies of the above information 1500–1508); the USDA Departmental may be obtained at the contact collection proposal can be obtained by Policy for the NEPA (7 CFR part 1b); the information listed above. No calling or writing Diana Hynek, Natural Resources Conservation Service administrative action on Departmental Paperwork Clearance Regulations (7 CFR part 650); and the implementation of the proposed funding Officer, (202) 482–0266, Department of Natural Resources Conservation Service action will be taken until 30 days after Commerce, Room 6625, 14th and policy (General Manual Title 190, Part the date of this publication in the Constitution Avenue, NW., Washington, 410); the Natural Resources Federal Register. DC 20230 (or via the Internet at Conservation Service gives notice that Signed in Lincoln, Nebraska on July 17, [email protected]). an environmental impact statement is 2008. Written comments and not being prepared for the rehabilitation Stephen K. Chick, recommendations for the proposed of grade stabilization Structure W3 in State Conservationist. information collection should be sent Papillion Creek Watershed, Washington [FR Doc. E8–18533 Filed 8–11–08; 8:45 am] within 30 days of publication of this County, Nebraska. The Environmental BILLING CODE 3410–16–P notice to David Rostker, OMB Desk Assessment was developed in Officer, FAX number (202) 395–7285, or coordination with the sponsoring local [email protected] . organization (Papio-Missouri River Dated: August 7, 2008. Natural Resources District) for a DEPARTMENT OF COMMERCE federally assisted action to address Gwellnar Banks, grade stabilization and incidental flood Submission for OMB Review; Management Analyst, Office of the Chief control prevention in the Papillion Comment Request Information Officer. Creek Watershed and the status of grade [FR Doc. E8–18552 Filed 8–11–08; 8:45 am] stabilization Structure W–3. Upon The Department of Commerce will BILLING CODE 3510–22–P consideration of the affected submit to the Office of Management and environment, alternatives, Budget (OMB) for clearance the environmental consequences, and following proposal for collection of DEPARTMENT OF COMMERCE information under the provisions of the comments and coordination with Submission for OMB Review; Paperwork Reduction Act (44 U.S.C. concerned public and agencies, the Comment Request State Conservationist for NRCS, Chapter 35). Nebraska found that based on the Agency: National Oceanic and The Department of Commerce will significance and context and intensity Atmospheric Administration (NOAA). submit to the Office of Management and

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Budget (OMB) for clearance the Dated: August 7, 2008. receipt is October 14, 2008. Rebuttal following proposal for collection of Gwellnar Banks, comments in response to material information under the provisions of the Management Analyst, Office of the Chief submitted during the foregoing period Paperwork Reduction Act (44 U.S.C. Information Officer. may be submitted during the subsequent Chapter 35). [FR Doc. E8–18553 Filed 8–11–08; 8:45 am] 15-day period (to October 27, 2008). Agency: Bureau of Industry and BILLING CODE 3510–33–P A copy of the application and Security (BIS). accompanying exhibits will be available Title: Competitive Enhancement for public inspection at the Office of the Needs Assessment Survey Program. DEPARTMENT OF COMMERCE Chief Executive, Butte–Silver Bow OMB Control Number: 0694–0083. Courthouse, 155 West Granite Street, Form Number(s): None. Foreign–Trade Zones Board Butte, Montana 59701; and, Office of the Type of Request: Regular submission. (Docket 43–2008) Executive Secretary, Foreign–Trade Burden Hours: 2,400. Zones Board, Room 2111, U.S. Number of Respondents: 2,400. Proposed Foreign–Trade Zone, Butte– Department of Commerce, 1401 Average Hours per Response: 1. Silver Bow, Montana, Application and Constitution Avenue, NW, Washington, Needs and Uses: The Defense Public Hearing DC 20230. Production Act of 1950, as amended, For further information, contact and Executive Order 12919, authorizes An application has been submitted to Kathleen Boyce at the Secretary of Commerce to assess the the Foreign–Trade Zones Board (the [email protected] or (202) capabilities of the defense industrial Board) by the City and County of Butte– 482–1346. base to support the national defense and Silver Bow, Montana, to establish a to develop policy alternatives to general–purpose foreign–trade zone at a Dated: August 5, 2008. improve the international site in Butte, Montana, adjacent to the Andrew McGilvray, competitiveness of specific domestic Butte–Silver Bow CBP port of entry. The Executive Secretary. industries and their abilities to meet application was submitted pursuant to [FR Doc. E8–18623 Filed 8–11–08; 8:45 am] defense program needs. The information the provisions of the FTZ Act, as BILLING CODE 3510–DS–S collected from this voluntary survey amended (19 U.S.C. 81a–81u), and the will be used to assist small and regulations of the Board (15 CFR Part medium-sized firms in defense 400). It was formally filed on August 4, DEPARTMENT OF COMMERCE transition and in gaining access to 2008. The applicant is authorized to advanced technologies and make the proposal under Montana Code International Trade Administration manufacturing processes available from Sections 30–15–101 through 103. Proposed Information Collection; Federal Laboratories. The goal is to The proposed zone would consist of Comment Request; Survey of improve regions of the country one site covering 1,545 acres in Butte– International Air Travelers adversely affected by cutbacks in Silver Bow, Montana and is within a defense spending and military base Tax Increment Financing Industrial AGENCY: International Trade closures. While the previous survey District located at 119041 German Gulch Administration, Commerce. focused primarily on those small Road, Butte, Montana. The site is owned ACTION: Notice. businesses that were impacted by by the City and County of Butte–Silver defense downsizing, it became apparent Bow, the Port of Montana Authority, SUMMARY: The Department of that non-defense dependent firms could REC Advanced Silicon Materials LLC, Commerce, as part of its continuing also benefit from the variety of services and Pioneer Concrete & Fuel, Inc. effort to reduce paperwork and offered. Therefore, the latest survey The application indicates a need for respondent burden, invites the general includes firms who manufacture zone services in Butte–Silver Bow, public and other Federal agencies to products for non-defense end-uses, Montana. Several firms have indicated take this opportunity to comment on including NASA programs. an interest in using zone procedures for proposed and/or continuing information Affected Public: Business and other warehousing/distribution activities for a collections, as required by the for-profit organizations. variety of products. Specific Paperwork Reduction Act of 1995. Frequency: Annually. manufacturing approvals are not being DATES: Written comments must be Respondent’s Obligation: Voluntary. sought at this time. Requests would be submitted on or before October 14, OMB Desk Officer: David Rostker, made to the Board on a case–by-case 2008. (202) 395–3897. basis. Copies of the above information In accordance with the Board’s ADDRESSES: Direct all written comments collection proposal can be obtained by regulations, Kathleen Boyce of the FTZ to Diana Hynek, Departmental calling or writing Diana Hynek, staff is designated examiner to Paperwork Clearance Officer, Departmental Paperwork Clearance investigate the application and report to Department of Commerce, Room 6625, Officer, (202) 482–0266, Department of the Board. 14th and Constitution Avenue, NW., Commerce, Room 6625, 14th and As part of the investigation, the Washington, DC 20230 (or via the Constitution Avenue, NW., Washington, Commerce examiner will hold a public Internet at [email protected]). DC 20230 (or via the Internet at hearing on September 11, 2008 at 1:00 FOR FURTHER INFORMATION CONTACT: [email protected]). pm, in the Council Chambers, Room Requests for additional information or Written comments and 312, Butte–Silver Bow Courthouse, 155 copies of the information collection recommendations for the proposed West Granite St., Butte, MT 59701. instrument and instructions should be information collection should be sent Public comment on the application is directed to Richard Champley or Ron within 30 days of publication of this invited from interested parties. Erdmann, Office of Travel & Tourism notice to David Rostker, OMB Desk Submissions (original and 3 copies) Industries (OTTI), ITA, Phone: (202) Officer, FAX number (202) 395–7285 or shall be addressed to the Board’s 482–0140, and fax: (202) 482–2887, E- via the Internet at Executive Secretary at the address listed Mail: [email protected] [email protected] . below. The closing period for their or [email protected].

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SUPPLEMENTARY INFORMATION: IV. Request for Comments results of CCR and intent to reinstate the antidumping duty order. See Certain I. Abstract Comments are invited on: (a) Whether the proposed collection of information Pasta from Italy: Notice of Preliminary The ‘‘Survey of International Air is necessary for the proper performance Results of Antidumping Duty Changed Travelers’’ program, administered by the of the functions of the agency, including Circumstances Review and Intent to Office of Travel and Tourism Industries whether the information shall have Reinstate the Antidumping Duty Order, (OTTI) of the International Trade practical utility; (b) the accuracy of the 73 FR 9769 (February 22, 2008). The Administration provides the sole source agency’s estimate of the burden final results are currently due no later data required to: (1) Estimate (including hours and cost) of the than August 5, 2008. international travel and passenger fare proposed collection of information; (c) Extension of Time Limit for Preliminary exports, imports and the trade balance ways to enhance the quality, utility, and Results for the United States; (2) support the clarity of the information to be Under 19 CFR 351.216(e), the U.S. Department of Commerce (DOC), collected; and (d) ways to minimize the Department will issue the final results Bureau of Economic Analysis’ (BEA) burden of the collection of information of a changed CCR within 270 days after mandate to collect, analyze and report on respondents, including through the the date on which the Department information used to calculate the Gross use of automated collection techniques initiates the changed circumstances Domestic Product (GDP) and (3) Travel or other forms of information review. Currently, the final results of the and Tourism Satellite Account for the technology. United States. Comments submitted in response to antidumping duty CCR, which cover The Survey program contains the core this notice will be summarized and/or Pasta Lensi S.r.L. (Lensi), a producer/ data that is analyzed and communicated included in the request for OMB exporter of pasta from Italy, and by OTTI with other government approval of this information collection; American Italian Pasta Company (AIPC), agencies, associations and businesses they also will become a matter of public Lensi’s corporate parent and importer of that share the same objective of record. subject merchandise produced by Lensi, increasing U.S. international travel are due by August 5, 2008. Lensi and Dated: August 7, 2008. exports. The Survey assists OTTI in AIPC have requested that the assessing the economic impact of Gwellnar Banks, Department meet with their international travel on state and local Management Analyst, Office of the Chief representatives on August 11, 2008, economies, providing visitation Information Officer. which is after the current deadline of estimates, and identifying traveler and [FR Doc. E8–18551 Filed 8–11–08; 8:45 am] the final results of the CCR. Due to the trip characteristics. The DOC assists BILLING CODE 3510–DR–P Department’s decision to accommodate travel industry enterprises to increase the request of Lensi and AIPC and in international travel and passenger fare accordance with 19 CFR 351.302(b), we DEPARTMENT OF COMMERCE exports for the country as well as are extending the due date of the final results of by 60 days. Therefore, the outbound travel on U.S. carriers. The International Trade Administration Survey program provides the only final results of the CCR are now due no available estimates of nonresident (A–475–818) later than October 6, 2008.1 visitation to the states and cities within This notice is issued and published in Certain Pasta from Italy: Notice of the U.S., as well as U.S. resident travel accordance with sections 751(b) and Extension of Final Results of abroad. U.S. and foreign flag airlines 777(i) of the Tariff Act of 1930, as Antidumping Duty Changed that voluntarily participate in the amended. Circumstances Review Survey program enable the collection. Dated: August 5, 2008. AGENCY: Import Administration, Gary Taverman, II. Method of Collection International Trade Administration, Acting Deputy Assistant Secretaryfor Import The survey will be collected by: (1) Department of Commerce. Administration. the flight attendant during the flight, or EFFECTIVE DATE: August 12, 2008. [FR Doc. E8–18624 Filed 8–11–08; 8:45 am] (2) the sub-contractor ‘‘interviewer’’ in FOR FURTHER INFORMATION CONTACT: Eric BILLING CODE 3510–DS–S the pre-flight departure gate area. B. Greynolds, AD/CVD Operations, International passengers will be Office 3, Import Administration, prompted to complete/submit the International Trade Administration, DEPARTMENT OF COMMERCE survey after making flight arrangements U.S. Department of Commerce, Room National Institute of Standards and via a booking engine (i.e., Worldspan) or 4014, 14th Street and Constitution Ave., Technology an airline Internet site. NW, Washington, DC 20230, telephone: III. Data (202) 482–6071. Announcing a Meeting of the SUPPLEMENTARY INFORMATION: OMB Control Number: 0625–0227. Information Security and Privacy Form Number(s): None. Background Advisory Board Type of Review: Regular submission. On November 19, 2007, the AGENCY: National Institute of Standards Affected Public: Individuals or Department of Commerce (the and Technology, Commerce. households. Department) published its notice of ACTION: Notice of meeting. Estimated Number of Respondents: initiation of antidumping duty changed 99,400. circumstances review. See Certain Pasta SUMMARY: Pursuant to the Federal Estimated Time per Response: 15 from Italy: Notice of Initiation of Advisory Committee Act, 5 U.S.C. App., minutes. Antidumping Duty Changed notice is hereby given that the Estimated Total Annual Burden Circumstances Review, 72 FR 65010 Hours: 24,850. 1 Day 60 falls on a Saturday. Therefore, we are (November 19, 2007) (Initiation). On extending the due date of final results to the Estimated Total Annual Cost to February 22, 2008, the Department following business day, which is Monday, October Public: $0. published its notice of preliminary 6, 2008.

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Information Security and Privacy to contact the Board Secretariat at the deadline is September 2, 2008. Please Advisory Board (ISPAB) will meet telephone number indicated above. In note registration and admittance Thursday, September 4, 2008, from 8:30 addition, written statements are invited instructions and other additional a.m. until 5 p.m., and Friday, September and may be submitted to the Board at information under the SUPPLEMENTARY 5, 2008 from 8 a.m. until 4:30 p.m. All any time. Written statements should be INFORMATION section of this notice. sessions will be open to the public. The directed to the ISPAB Secretariat, DATES: The workshop will be held on Advisory Board was established by the Information Technology Laboratory, 100 September 9–11, 2008, from 8:30 a.m. Computer Security Act of 1987 (Pub. L. Bureau Drive, Stop 8930, National until 5 p.m. PT. 100–235) and amended by the Federal Institute of Standards and Technology, ADDRESSES: The roundtable will be held Information Security Management Act Gaithersburg, MD 20899–8930. in the conference room of Twisted Pair of 2002 (Pub. L. 107–347) to advise the Approximately 15 seats will be available Communications, 3131 Elliott Ave., Secretary of Commerce and the Director for the public and media. Suite 200, Seattle, WA 98121. of NIST on security and privacy issues Dated: August 5, 2008. FOR FURTHER INFORMATION CONTACT: pertaining to federal computer systems. James M. Turner, Details regarding the Board’s activities Dereck Orr, (303) 497–5400, e-mail: Deputy Director. are available at http://csrc.nist.gov/ [email protected]. The mailing groups/SMA/ispab/index.html/. [FR Doc. E8–18620 Filed 8–11–08; 8:45 am] address is 325 Broadway, Mail Stop BILLING CODE 3510–13–P DATES: The meeting will be held on ITS.P, Boulder, CO 80305. Information September 4, 2008 from 8:30 a.m. until regarding OLES can be viewed at http://www.eeel.nist.gov/oles/. 5 p.m. and September 5, 2008, from 8 DEPARTMENT OF COMMERCE a.m. until 4:30 p.m. Information regarding DHS/OIC can be viewed at http:// ADDRESSES: The meeting will take place National Institute of Standards and www.safecomprogram.gov. Information at George Washington University Cafritz Technology regarding ITS can be viewed at http:// Conference Center 800 21st Street, NW., www.its.bldrdoc.gov. Room 405, Washington, DC on Public Safety Voice Over Internet September 4–5, 2008. Protocol (VoIP) Public Workshop for SUPPLEMENTARY INFORMATION: In Organizations Interested in Utilization FOR FURTHER INFORMATION CONTACT: Ms. response to a request from the U.S. of VoIP for Communication Between Pauline Bowen, Board Secretariat, Department of Homeland Security Public Safety Personnel Information Technology Laboratory, (DHS), Science and Technology Directorate (S&T), Command, Control National Institute of Standards and AGENCY: National Institute of Standards Technology, 100 Bureau Drive, Stop and Technology, Department of and Interoperability Division (CCI), 8930, Gaithersburg, MD 20899–8930, Commerce. Office of Interoperability and Compatibility (OIC), the NIST Office of telephone: (301) 975–2938. ACTION: Notice of Public Workshop. Law Enforcement Standards (OLES) is SUPPLEMENTARY INFORMATION: SUMMARY: The Office of Law developing protocol implementation Agenda Enforcement Standards (OLES), in profiles for VoIP communications —Welcome and Overview cooperation with the Department of between public safety personnel. —NIST Computer Security Division Homeland Security’s Office of The request from OIC germinated Overview Interoperability and Compatibility from practitioner-raised issues related to —FISMA (DHS/OIC) and representatives of the VoIP-enabled solutions being marketed —DHS Cyber Security Center Activities public safety community, will hold a to the public safety community as an Brief public working group on September 9– ‘‘interoperability solution,’’ yet these —Industry Security Officers Best 11, 2008, at Twisted Pair solutions will not interoperate with Practices Panel Communications in Seattle, VoIP-enabled solutions from other —Privacy Technology Report Washington. The purpose of the first manufacturers making the same claim. —Trusted Internet Connection Panel two days of the meeting (September 9– The proper way to address this situation —Cyber Initiative and Relationship to 10, 2008) is to bring manufacturers is to develop a protocol implementation Civilian Agency Security together to establish voice over IP (VoIP) profile (or set of profiles) that contains —Privacy Impact (Einstein) connectivity between radio the minimum standards, parameters and —Board discussion on transition letter communication system bridging values necessary to ensure that for old and new administration (NIST devices. The purpose of the last day of solutions developed by independent Director and OMB Director) the working group (September 11, 2008) organizations will interoperate with —ISPAB Work Plan Discussion is to bring practitioners and industry each other. This roundtable discussion —Security and Privacy Professional together to discuss the development of is intended to lead to the development Workforce Issues Discussion an enhanced implementation profile for of a protocol implementation profile for Note that agenda items may change VoIP between radio system bridging VoIP-enabled radio system bridging without notice because of possible solutions. The results of this and solutions. unexpected schedule conflicts of subsequent roundtable discussions will Anyone wishing to attend this presenters. The final agenda will be be used in the development of specific meeting must register by close of posted on the Web site indicated above. implementation profiles for VoIP usage business September 2, 2008, in order to Public Participation: The Board in public-safety owned systems. attend. Please submit your name, time agenda will include a period of time, There is no charge for the roundtable; of arrival, e-mail address and phone not to exceed thirty minutes, for oral however, because of meeting room number to Ms. Stacey Breitberg and she comments and questions from the restrictions, advance registration is will provide you with logistics public (Friday, September 5, 2008 at 3– mandatory and limited to three information for the meeting. Ms. 3:30 p.m.). Each speaker will be limited representatives from any one Breitberg’s e-mail address is to five minutes. Members of the public organization. There will be no on-site, [email protected] and her who are interested in speaking are asked same-day registration. The registration phone number is (206) 812–2367.

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All attendees are required to submit public and requesting interested parties ACTION: Notice of closure— their name, time of arrival, e-mail to apply for the available seats. administrative appeal decision record. address and phone number to Ms. II. Method of Collection Breitberg. SUMMARY: This announcement provides An application form and guidelines notice that the decision record has been Dated: August 5, 2008. closed for an administrative appeal filed James M. Turner, for a narrative submission must be submitted to the sanctuary manager. with the Department of Commerce by Deputy Director. Submissions may be made Mr. G. Walter Swain. [FR Doc. E8–18618 Filed 8–11–08; 8:45 am] electronically. DATES: The decision record for the BILLING CODE 3510–13–P administrative appeal of Mr. G. Walter III. Data Swain was closed on August 12, 2008. OMB Control Number: 0648–0397. ADDRESSES: Materials from the appeal DEPARTMENT OF COMMERCE Form Number: None. record are available at the Internet site National Oceanic and Atmospheric Type of Review: Regular submission. http://www.ogc.doc.gov/czma.htm and Administration Affected Public: Individuals or at the Office of the General Counsel for households; business or other for-profit Ocean Services, National Oceanic and Proposed Information Collection; organizations; not-for-profit institutions. Atmospheric Administration, U.S. Comment Request; Application Form Estimated Number of Respondents: Department of Commerce, 1305 East- for Membership on a National Marine 500. West Highway, Silver Spring, MD Sanctuary Advisory Council Estimated Time Per Response: 1 hour. 20910. FOR FURTHER INFORMATION CONTACT: AGENCY: National Oceanic and Estimated Total Annual Burden Thomas Street, Attorney-Advisor, Atmospheric Administration (NOAA), Hours: 500 hours. NOAA Office of General Counsel for Commerce. Estimated Total Annual Cost to Public: $0. Ocean Services, via e-mail at ACTION: Notice. [email protected], or at 301–713– IV. Request for Comments SUMMARY: The Department of 7390. Commerce, as part of its continuing Comments are invited on: (a) Whether SUPPLEMENTARY INFORMATION: On effort to reduce paperwork and the proposed collection of information February 4, 2008, Mr. G. Walter Swain respondent burden, invites the general is necessary for the proper performance filed notice of an appeal with the public and other Federal agencies to of the functions of the agency, including Secretary of Commerce (Secretary), take this opportunity to comment on whether the information shall have pursuant to the Coastal Zone proposed and/or continuing information practical utility; (b) the accuracy of the Management Act of 1972 (CZMA), 16 collections, as required by the agency’s estimate of the burden U.S.C. 1451 et seq., and implementing Paperwork Reduction Act of 1995. (including hours and cost) of the regulations found at 15 CFR Part 930, DATES: Written comments must be proposed collection of information; (c) Subpart H. Mr. Swain appealed an submitted on or before October 14, ways to enhance the quality, utility, and objection by the State of Delaware in the 2008. clarity of the information to be proposed construction of a marina and collected; and (d) ways to minimize the associated structures at the confluence ADDRESSES: Direct all written comments burden of the collection of information of Cedar Creek and Mispillion River, in to Diana Hynek, Departmental on respondents, including through the Milford, Delaware. Paperwork Clearance Officer, use of automated collection techniques Mr. Swain requested that the Department of Commerce, Room 6625, or other forms of information Secretary override Delaware’s objection 14th and Constitution Avenue, NW., technology. based upon an alleged threshold Washington, DC 20230 (or via the Comments submitted in response to deficiency in the objection and on the Internet at [email protected]). this notice will be summarized and/or grounds that the project is consistent FOR FURTHER INFORMATION CONTACT: included in the request for OMB with the objectives of the CZMA or Requests for additional information or approval of this information collection; otherwise necessary in the interest of copies of the information collection they also will become a matter of public national security. Decisions for CZMA instrument and instructions should be record. administrative appeals are based on directed to Karen M. Brubeck, 206–842– information contained in a decision 6084 or [email protected]. Dated: August 7, 2008. record. Under the CZMA, the decision Gwellnar Banks, SUPPLEMENTARY INFORMATION: record must close no later than 220 days Management Analyst, Office of the Chief after notice of the appeal was first I. Abstract Information Officer. published in the Federal Register. See Section 315 of the National Marine [FR Doc. E8–18550 Filed 8–11–08; 8:45 am] 16 U.S.C. 1465; 15 CFR 930.130. The Sanctuaries Act (16 U.S.C. 1445a) BILLING CODE 3510–NK–P CZMA requires that a notice be allows the Secretary of Commerce to published in the Federal Register establish one or more advisory councils indicating the date on which the to provide advice to the Secretary DEPARTMENT OF COMMERCE decision record has been closed. See 16 regarding the designation and National Oceanic and Atmospheric U.S.C. 1465(b); 15 CFR 930.130. management of national marine Administration Consistent with this deadline, the Swain sanctuaries. The councils are appeal decision record was closed on individually chartered for each Federal Consistency Appeal by Mr. G. August 12, 2008. No further sanctuary to meet the needs of the Walter Swain information, briefs or comments will be sanctuary. Once a council has been considered in deciding this appeal. chartered, the sanctuary manager starts AGENCY: National Oceanic and Additional information about the a process to recruit members for that Atmospheric Administration (NOAA), Swain appeal and the CZMA appeals Council by providing notice to the Department of Commerce (Commerce). process is available from the

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Department of Commerce CZMA marine mammals (50 CFR part 216), the Federal Register in accordance with the appeals Web site: http:// Endangered Species Act of 1973, as terms of 16 CFR 1118.20(e). Published www.ogc.doc.gov/czma.htm. amended (ESA; 16 U.S.C. 1531 et seq.), below is a provisionally accepted (Federal Domestic Assistance Catalog No. and the regulations governing the Settlement Agreement with A & R 11.419 Coastal Zone Management Program taking, importing, and exporting of Knitwear, Inc., containing a civil Assistance.) endangered and threatened species (50 penalty of $35,000.00. Dated: August 7, 2008. CFR parts 222–226). DATES: Any interested person may ask The permit amendment extended the Joel La Bissonniere, the Commission not to accept this duration of the permit to allow conduct agreement or otherwise comment on its Assistant General Counsel for Ocean Services. of three additional annual field seasons, contents by filing a written request with [FR Doc. E8–18658 Filed 8–11–08; 8:45 am] and modified the protocols for playback the Office of the Secretary by August 27, BILLING CODE 3510–08–P experiments as requested by the permit 2008. holder. The amended permit authorizes ADDRESSES: Persons wishing to research involving temporary DEPARTMENT OF COMMERCE comment on this Settlement Agreement attachment of scientific instruments should send written comments to the National Oceanic and Atmospheric (digital archival recording tags), photo- Comment 08-C0016, Office of the Administration identification, and exposure to Secretary, Consumer Product Safety controlled levels of natural and Commission, 4330 East West Highway, RIN 0648–XG81 anthropogenic underwater sounds, Room 502, Bethesda, Maryland 20814– including signals simulating mid- Marine Mammals; File No. 1121–1900 4408. frequency sonar. Sloughed skin samples FOR FURTHER INFORMATION CONTACT: AGENCY: National Marine Fisheries collected from the detached instrument Dennis C. Kacoyanis, Trial Attorney, Service (NMFS), National Oceanic and would be imported into the U.S. for Legal Division, Office of Compliance Atmospheric Administration (NOAA), analysis. The permit is valid through and Field Operations, Consumer Commerce. January 1, 2011. Product Safety Commission, 4330 East ACTION: Notice; issuance of permit In compliance with the National West Highway, Bethesda, Maryland amendment. Environmental Policy Act of 1969 (42 20814–4408; telephone (301) 504–7587. U.S.C. 4321 et seq.), a supplemental SUPPLEMENTARY INFORMATION: The text of SUMMARY: Notice is hereby given that environmental assessment was prepared the Agreement and Order appears NOAA Fisheries Office of Science and analyzing the effects of the permitted below. Technology (Principal Investigator: Dr. activities. After a Finding of No Brandon Southall), Silver Spring, MD, Significant Impact, the determination August 5, 2008. has been issued an amendment to was made that it was not necessary to Todd A. Stevenson, Permit No. 1121–1900 to conduct prepare an environmental impact Secretary. research on marine mammals. statement. United States of America ADDRESSES: The permit amendment and Issuance of this permit, as required by related documents are available for the ESA, was based on a finding that Consumer Product Safety Commission review upon written request or by such permit: (1) was applied for in good In the Matter of A & R Knitwear, Inc., CPSC appointment in the following office(s): faith; (2) will not operate to the Docket No. 08–C0016 Permits, Conservation and Education disadvantage of such endangered Settlement Agreement Division, Office of Protected Resources, species; and (3) is consistent with the NMFS, 1315 East-West Highway, Room purposes and policies set forth in 1. In accordance with 16 CFR 1118.20, A 13705, Silver Spring, MD 20910; phone section 2 of the ESA. & R Knitwear, Inc. (‘‘A & R’’) and the staff (‘‘Staff’’) of the United States Consumer (301)713–2289; fax (301)427–2521; Dated: August 6, 2008. Product Safety Commission (‘‘Commission’’) http://www.nmfs.noaa.gov/pr/permits/ P. Michael Payne, enter into this Settlement Agreement review.htm; and Chief, Permits, Conservation and Education (‘‘Agreement’’). The Agreement and the Southeast Region, NMFS, 263 13th Division, Office of Protected Resources, incorporated attached Order (‘‘Order’’) settle Avenue South, Saint Petersburg, Florida National Marine Fisheries Service. the Staff’s allegations set forth below. 33701; phone (727)824–5312; fax [FR Doc. E8–18617 Filed 8–11–08; 8:45 am] Parties (727)824–5309. BILLING CODE 3510–22–S 2. The Commission is an independent FOR FURTHER INFORMATION CONTACT: federal regulatory agency established Tammy Adams or Jolie Harrison, pursuant to, and responsible for the (301)713–2289. CONSUMER PRODUCT SAFETY enforcement of, the Consumer Product Safety SUPPLEMENTARY INFORMATION: On April COMMISSION Act, 15 U.S.C. 2051–2084 (‘‘CPSA’’). 2, 2008, notice was published in the 3. A & R is a corporation organized and Federal Register (73 FR 17957) that a (CPSC Docket No. 08-COO 16) existing under the laws of New York, with its principal offices located in New York, NY. At request for an amendment to Scientific A & R Knitwear, Inc., Provisional all times relevant hereto, A & R imported and Research Permit No. 1121–1900 to take Acceptance of a Settlement Agreement sold apparel. beaked whales (Ziphius cavirostris and and Order Mesoplodon spp.) and other odontocete Staff Allegations species had been submitted by the AGENCY: Consumer Product Safety 4. In 2007, A & R imported and sold to a above-named institution (permit Commission. nationwide retailer at least 5,214 Personal Identity V-neck sweaters with hood and neck holder). The requested permit ACTION: Notice. amendment has been issued under the drawstrings (‘‘Drawstring Sweaters’’). 5. The nationwide retailer sold the authority of the Marine Mammal SUMMARY: It is the policy of the Drawstring Sweaters to consumers. Protection Act of 1972, as amended (16 Commission to publish settlements 6. The Drawstring Sweaters are ‘‘consumer U.S.C. 1361 et seq.), the regulations which it provisionally accepts under the product[s],’’ and, at all times relevant hereto, governing the taking and importing of Consumer Product Safety Act in the A & R was a ‘‘manufacturer’’ of those

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consumer products, which were ‘‘distributed 20, 15 U.S.C. 2069, this failure subjected A 23. In settlement of the Staff’s allegations, in commerce,’’ as those terms are defined in & R to civil penalties. A & R shall pay a civil penalty in the amount CPSA sections 3(a)(1), (4), (11), and (12), 15 of thirty-five thousand dollars ($35,000.00) U.S.C. 2052(a)(1), (4), (11), and (12). A & R Response within twenty (20) calendar days of service 7. In February 1996, the Staff issued the 15. A & R denies the Staff’s allegations of the Commission’s final Order accepting Guidelines for Drawstrings on Children’s above, including, but not limited to, the the Agreement. The payment shall be by Upper Outerwear (‘‘Guidelines’’) to help allegations that A & R failed to immediately check payable to the order of the United prevent children from strangling or inform the Commission about the Drawstring States Treasury. entangling on neck and waist drawstrings. Sweaters as required by CPSA sections 24. Upon provisional acceptance of the The Guidelines state that drawstrings can 15(b)(2) and (3), 15 U.S.C. 2064(b)(2) and (3), Agreement, the Agreement shall be placed on cause, and have caused, injuries and deaths or otherwise violated the CPSA or FHSA. the public record and published in the when they catch on items such as playground 16. A & R specifically denies that A & R Federal Register in accordance with the equipment, bus doors, or cribs. In the violated the CPSA or the FHSA and that the procedures set forth in 16 CFR 1118.20(e). In Guidelines, the Staff recommends that there Drawstring Sweaters contained a defect that accordance with 16 CFR 1118.20(f), if the be no hood and neck drawstrings in could create a substantial product hazard or Commission does not receive any written children’s upper outerwear sized 2T to 12. created an unreasonable risk of serious injury request not to accept the Agreement within 8. In June 1997, ASTM adopted a voluntary or death. A & R denies that it violated the fifteen (15) calendar days, the Agreement standard, ASTM F1816–97, that incorporated reporting requirements of CPSA section shall be deemed finally accepted on the the Guidelines. The Guidelines state that 15(b), 15 U.S.C. 2064(b). sixteenth (16th) calendar day after the date it firms should be aware of the hazards and 17. A & R received no reports of incidents is published in the Federal Register. should be sure garments they sell conform to or injury related to the Drawstring Sweaters, 25. Upon the Commission’s final the voluntary standard. and A & R was unaware of both the acceptance of the Agreement and issuance of 9. On May 19, 2006, the Commission Guidelines and the May 2006 letter posted on the final Order, A & R knowingly, posted on its Web site a letter from the the Commission’s Web site stating that the voluntarily, and completely waives any Commission’s Director of the Office of staff of the Commission’s Office of rights it may have regarding the Staff’s Compliance to manufacturers, importers, and Compliance considers children’s upper allegations to the following: (1) An retailers of children’s upper outerwear. The outerwear with drawstrings at the head or administrative or judicial hearing; (2) judicial letter urges them to make certain that all neck area to be defective and to present a review or other challenge or contest of the children’s upper outerwear sold in the substantial risk of injury to young children. validity of the Order or of the Commission’s United States complies with ASTM F1816– Accordingly, A & R denies that any alleged actions; (3) a determination by the 97. The letter states that the Staff considers violation of the CPSA or FHSA occurred Commission of whether A & R failed to children’s upper outerwear with drawstrings ‘‘knowingly’’ as defined in CPSA section comply with the CPSA and its underlying at the hood or neck area to be defective and 20(d), 15 U.S.C. 2069(d). regulations; (4) a statement of findings of fact to present a substantial risk of injury to 18. Between November 2006 and June and conclusions of law; and (5) any claims young children under Federal Hazardous 2008, the CPSC posted on its Web site at least under the Equal Access to Justice Act. Substances Act (‘‘FHSA’’) section 15(c), 15 twenty-two recall announcements involving 26. The Commission may publicize the U.S.C. 1274(c). The letter also notes the children’s drawstring garments. These terms of the Agreement and the Order. CPSA’s section 15(b) reporting requirements. twenty-two recall announcements referenced 27. The Agreement and the Order shall 10. The Commission was not informed of and linked electronically to the Guidelines. apply to, and be binding upon, A & R and any incidents or injuries from the Drawstring The Guidelines, which are entitled in part each of its successors and assigns. Sweaters. ‘‘Recommended Guidelines,’’ state that the 28. The Commission issues the Order 11. A & R’s distribution in commerce of the ‘‘CPSC’s drawstring guidelines do not under the provisions of the CPSA, and Drawstring Sweaters did not meet the represent a standard or mandatory violation of the Order may subject A & R to Guidelines or ASTM F1816–97, failed to requirement set by the agency.’’ Accordingly, appropriate legal action. comport with the Staff’s May 2006 defect at the time A & R imported and sold the 29. The Agreement may be used in notice, and posed a strangulation hazard to Drawstring Sweaters, the Commission had interpreting the Order. Understandings, children. not provided adequate notice that civil agreements, representations, or 12. On December 6, 2007, the Commission penalties could arise from A & R’s conduct. interpretations apart from those contained in and the nationwide retailer announced a 19. As soon as A & R was alerted by the the Agreement and the Order may not be recall of the Drawstring Sweaters, informing retailer about safety concerns with the used to vary or contradict their terms. The consumers that they should immediately drawstrings in the Drawstring Sweaters, it Agreement shall not be waived, amended, remove the drawstrings to eliminate the undertook efforts to have the drawstrings modified, or otherwise altered without hazard. removed from the garments. In addition, A & written agreement thereto executed by the 13. A & R had presumed and actual R fully cooperated with the retailer and the party against whom such waiver, knowledge that the Drawstring Sweaters Commission in connection with the amendment, modification, or alteration is distributed in commerce posed a December 2007 recall of the Drawstring sought to be enforced. strangulation hazard and presented a Sweaters, which resulted in A & R’s removal 30. If any provision of the Agreement and substantial risk of injury to children under of the drawstrings from 2,332 Drawstring the Order is held to be illegal, invalid, or FHSA section 15(c)(1), 15 U.S.C. 1274(c)(l). A Sweaters in the possession of A & R. unenforceable under present or future laws & R had obtained information that reasonably 20. A & R has entered into the Agreement effective during the terms of the Agreement supported the conclusion that the Drawstring for settlement purposes only, and has made and the Order, such provision shall be fully Sweaters contained a defect that could create a business decision to avoid additional severable. The balance of the Agreement and a substantial product hazard or that they expenses and distractions related to further the Order shall remain in full force and created an unreasonable risk of serious injury administrative procedures and litigation. The effect, unless the Commission and A & R or death. CPSA sections 15(b)(2) and (3), 15 Agreement and Order do not constitute and agree that severing the provision materially U.S.C. 2064(b)(2) and (3), required A & R to are not evidence of any fault or wrongdoing affects the purpose of the Agreement and the immediately inform the Commission of the on the part of A & R. Order. defect and risk. 31. Pursuant to section 6(d) of the Interim 14. A & R knowingly failed to immediately Agreement of the Parties Delegation of Authority ordered by the inform the Commission about the Drawstring 21. Under the CPSA, the Commission has Commission on February 1, 2008, the Sweaters as required by CPSA sections jurisdiction over this matter and over A & R. Commission delegated to the Assistant 15(b)(2) and (3), 15 U.S.C. 2064(b)(2) and (3), 22. The parties enter into the Agreement Executive Director for Compliance and Field and as the term ‘‘knowingly’’ is defined in for settlement purposes only. The Agreement Operations the authority to act, with the CPSA section 20(d), 15 U.S.C. 2069(d). This does not constitute an admission by A & R, concurrence of the General Counsel, for the failure violated CPSA section 19(a)(4), 15 or a determination by the Commission, that Commission under 16 CFR 1118.20 with U.S.C. 2068(a)(4). Pursuant to CPSA section A & R has knowingly violated the CPSA. respect to Staff allegations that any person or

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firm violated 15 U.S.C. 2068, where the total CONSUMER PRODUCT SAFETY 3. AJB is a corporation organized and amount of the settlement involves no more COMMISSION existing under the laws of New York, with its than $100,000. principal offices located in New York, New [CPSC Docket No. 08–C0013] York. At all times relevant hereto, AJB sold A & R Knitwear, Inc. apparel. Dated: 7/21/08. AJ Blue LLC, Provisional Acceptance Staff Allegations By: /s/ David Rosenbluth, of a Settlement Agreement and Order David Rosenbluth, 4. On July 11, 2007, AJB imported 13,728 AGENCY: Consumer Product Safety President, A & R Knitwear, Inc., 530 7th Apollo Active Wear girls’ hooded jackets with drawstrings at the hood (‘‘Jackets’’). On Avenue, Suite 901, New York, NY 10018. Commission. ACTION: Notice. August 17, 2007, AJB sold and/or distributed Dated: 7/25/08. in commerce the Jackets. By: /s/ Michael T. Cone, SUMMARY: It is the policy of the 5. A nationwide retailer sold the Jackets to Michael T. Cone, Esquire, Commission to publish settlements consumers. Neville Peterson, LLP 17 State Street, 19th which it provisionally accepts under the 6. The Jackets are ‘‘consumer product[s],’’ Floor, New York, NY 10004, Attorney for A Consumer Product Safety Act in the and, at all times relevant hereto, AJB was a & R Knitwear, Inc. Federal Register in accordance with the ‘‘manufacturer’’ of those consumer products, which were ‘‘distributed in commerce,’’ as U.S. Consumer Product Safety Commission terms of 16 CFR 1118.20(e). Published those terms are defined in CPSA sections Staff below is a provisionally-accepted 3(a)(1), (4), (11), and (12), 15 U.S.C. J. Gibson Mullan, Settlement Agreement with AJ Blue 2052(a)(1), (4), (11), and (12). Assistant Executive Director, Office of LLC, containing a civil penalty of 7. In February 1996, the Staff issued the Compliance and Field Operations. $40,000.00. Guidelines for Drawstrings on Children’s Ronald G. Yelenik, DATES: Any interested person may ask Upper Outerwear (‘‘Guidelines’’) to help prevent children from strangling or Acting Director, Legal Division, Office of the Commission not to accept this Compliance and Field Operations. entangling on neck and waist drawstrings. agreement or otherwise comment on its The Guidelines state that drawstrings can Dated: 7/31/08. contents by filing a written request with cause, and have caused, injuries and deaths By: /s/ Dennis C. Kacoyams, the Office of the Secretary by August 27, when they catch on items such as playground Dennis C. Kacoyams, 2008. equipment, bus doors, or cribs. In the Trial Attorney, Legal Division, Office of ADDRESSES: Persons wishing to Guidelines, the Staff recommends that there Compliance and Field Operations. comment on this Settlement Agreement be no hood and neck drawstrings in children’s upper outerwear sized 2T to 12. United States of America should send written comments to 8. In June 1997, ASTM adopted a voluntary Comment 08–C0013, Office of the Consumer Product Safety Commission standard, ASTM F1816–97, that incorporated Secretary, Consumer Product Safety the Guidelines. The Guidelines state that In the Matter of A & R Knitwear, Inc., CPSC Commission, 4330 East West Highway, firms should be aware of the hazards and Docket No. 08–C16 Room 502, Bethesda, Maryland 20814– should be sure garments they sell conform to Order 4408. the voluntary standard. 9. On May 19, 2006, the Commission Upon consideration of the Settlement FOR FURTHER INFORMATION CONTACT: Seth posted on its Web site a letter from the Agreement entered into between A & R B. Popkin, Trial Attorney, Legal Division, Office of Compliance and Commission’s Director of the Office of Knitwear, Inc. (‘‘A & R’’) and the U.S. Compliance to manufacturers, importers, and Consumer Product Safety Commission Field Operations, Consumer Product retailers of children’s upper outerwear. The (‘‘Commission’’) staff, and the Commission Safety Commission, 4330 East West letter urges them to make certain that all having jurisdiction over the subject matter Highway, Bethesda, Maryland 20814– children’s upper outerwear sold in the and over A & R, and pursuant to the authority 4408; telephone (301) 504–7612. United States complies with ASTM F1816– delegated in section 6(d) of the Interim SUPPLEMENTARY INFORMATION: The text of 97. The letter states that the Staff considers Delegation of Authority ordered by the the Agreement and Order appears children’s upper outerwear with drawstrings Commission on February 1, 2008, and it below. at the hood or neck area to be defective and appearing that the Settlement Agreement and to present a substantial risk of injury to the Order are in the public interest, it is Dated: August 5, 2008. young children under Federal Hazardous Ordered, that the Settlement Agreement be, Todd A. Stevenson, Substances Act (‘‘FHSA’’) section 15(c), 15 and hereby is, accepted; and it is Further Secretary. U.S.C. 1274(c). The letter also notes the ordered, that A & R shall pay a civil penalty CPSA’s section 15(b) reporting requirements. in the amount of thirty-five thousand dollars United States of America 10. AJB informed the Commission that ($35,000.00) within twenty (20) calendar Consumer Product Safety Commission there had been no incidents or injuries from days of service of the Commission’s final the Jackets. In the Matter of AJ Blue LLC, CPSC Docket Order accepting the Agreement. The payment 11. AJB’s distribution in commerce of the No. 08–C0013. shall be made by check payable to the order Jackets did not meet the Guidelines or ASTM of the United States Treasury. Upon the Settlement Agreement F1816–97, failed to comport with the Staff’s failure of A & R to make the foregoing 1. In accordance with 16 CFR 1118.20, AJ May 2006 defect notice, and posed a payment when due, interest on the unpaid Blue LLC, d/b/a Apollo Jeans (‘‘AJB’’) and the strangulation hazard to children. amount shall accrue and be paid by A & R staff (‘‘Staff’’) of the United States Consumer 12. On January 31, 2008, the Commission at the federal legal rate of interest set forth Product Safety Commission (‘‘Commission’’) and AJB announced a recall of the Jackets. at 28 U.S.C. 1961(a) and (b). enter into this Settlement Agreement 13. AJB had presumed and actual (‘‘Agreement’’). The Agreement and the knowledge that the Jackets distributed in Provisionally accepted and provisional incorporated attached Order (‘‘Order’’) settle commerce posed a strangulation hazard and Order issued on the 4th day of August, 2008. the Staff’s allegations set forth below. presented a substantial risk of injury to By Order of the Commission. children under FHSA section 15 (c)(1), 15 Todd A. Stevenson, Parties U.S.C. 1274(c)(1). AJB had obtained Secretary, U.S. Consumer Product Safety 2. The Commission is an independent information that reasonably supported the Commission. federal regulatory agency established conclusion that the Jackets contained a defect pursuant to, and responsible for the that could create a substantial product hazard [FR Doc. E8–18403 Filed 8–11–08; 8:45 am] enforcement of, the Consumer Product Safety or that they created an unreasonable risk of BILLING CODE 6355–01–M Act, 15 U.S.C. 2051–2084 (‘‘CPSA’’). serious injury or death. CPSA sections

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15(b)(2) and (3), 15 U.S.C. 2064(b)(2) and (3), written agreement thereto executed by the legal rate of interest set forth at 28 U.S.C. required AJB to immediately inform the party against whom such waiver, 1961(a) and (b). Commission of the defect and risk. amendment, modification, or alteration is Provisionally accepted and provisional 14. AJB knowingly failed to immediately sought to be enforced. Order issued on the 4th day of August, 2008. 25. If any provision of the Agreement and inform the Commission about the Jackets as By Order of the Commission. required by CPSA sections 15(b)(2) and (3), the Order is held to be illegal, invalid, or 15 U.S.C. 2064(b)(2) and (3), and as the term unenforceable under present or future laws Todd A. Stevenson, ‘‘knowingly’’ is defined in CPSA section effective during the terms of the Agreement Secretary, U.S. Consumer Product Safety 20(d), 15 U.S.C. 2069(d). This failure violated and the Order, such provision shall be fully Commission. CPSA section 19(a)(4), 15 U.S.C. 2068(a)(4). severable. The balance of the Agreement and [FR Doc. E8–18397 Filed 8–11–08; 8:45 am] Pursuant to CPSA section 20, 15 U.S.C. 2069, the Order shall remain in full force and BILLING CODE 6355–01–M this failure subjected AJB to civil penalties. effect, unless the Commission and AJB agree that severing the provision materially affects AJB’s Response the purpose of the Agreement and the Order. 15. AJB denies the Staff’s allegations above 26. Pursuant to section 6(d) of the Interim CONSUMER PRODUCT SAFETY that AJB knowingly violated the CPSA. Delegation of Authority ordered by the COMMISSION Commission on February 1, 2008, the Agreement of the Parties Commission delegated to the Assistant (CPSC Docket No. 08–C0018) 16. Under the CPSA, the Commission has Executive Director for Compliance and Field jurisdiction over this matter and over AJB. Operations the authority to act, with the Cobmex, Inc., Provisional Acceptance 17. The parties enter into the Agreement concurrence of the General Counsel, for the of a Settlement Agreement and Order for settlement purposes only. The Agreement Commission under 16 C.F.R. § 1118.20 with does not constitute an admission by AJB, or respect to Staff allegations that any person or AGENCY: Consumer Product Safety a determination by the Commission, that AJB firm violated 15 U.S.C. 2068, where the total Commission has knowingly violated the CPSA. amount of the settlement involves no more 18. In settlement of the Staff’s allegations, than $100,000. ACTION: Notice AJB shall pay a civil penalty in the amount AJ Blue LLC. SUMMARY: It is the policy of the of forty thousand dollars ($40,000.00) within Dated: 6–25–08. twenty (20) calendar days of service of the Commission to publish settlements Commission’s final Order accepting the By: Edward Alfaks, which it provisionally accepts under the Agreement. The payment shall be by check President, AJ Blue LLC, 1407 Broadway, Suite Consumer Product Safety Act in the 2004, New York, NY 10018. payable to the order of the United States Federal Register in accordance with the Treasury. U.S. Consumer Product Safety Commission terms of 16 CFR 1118.20(e). Published Staff. 19. Upon provisional acceptance of the below is a provisionally accepted Agreement, the Agreement shall be placed on J. Gibson Mullan, Settlement Agreement with Cobmex, the public record and published in the Assistant Executive Director, Office of Federal Register in accordance with the Compliance and Field Operations. Inc., containing a civil penalty of $25,000.00. procedures set forth in 16 CFR 1118.20(e). In Ronald G. Yelenik, accordance with 16 CFR 1118.20(f), if the Acting Director, Legal Division, Office of DATES: Any interested person may ask Commission does not receive any written Compliance and Field Operations. the Commission not to accept this request not to accept the Agreement within Dated: 7–7–08. agreement or otherwise comment on its fifteen (15) calendar days, the Agreement shall be deemed finally accepted on the By: Seth B. Popkin, contents by filing a written request with sixteenth (16th) calendar day after the date it Trial Attorney, Legal Division, Office of the Office of the Secretary by (insert is published in the Federal Register. Compliance and Field Operations. date that is 15 calendar days from 20. Upon the Commission’s final United States of America publication date). acceptance of the Agreement and issuance of ADDRESSES: Consumer Product Safety Commission Persons wishing to the final Order, AJB knowingly, voluntarily, comment on this Settlement Agreement and completely waives any rights it may have In the Matter of AJ Blue LLC., CPSC Docket should send written comments to the in this matter to the following: (1) An No. 08–C0013. administrative or judicial hearing; (2) judicial Comment 08-C0018, Office of the review or other challenge or contest of the Order Secretary, Consumer Product Safety validity of the Order or of the Commission’s Upon consideration of the Settlement Commission, 4330 East West Highway, actions; (3) a determination by the Agreement entered into between AJ Blue Room 502, Bethesda, Maryland 20814– Commission of whether AJB failed to comply LLC, d/b/a Apollo Jeans (‘‘AJB’’) and the U.S. 4408. with the CPSA and its underlying Consumer Product Safety Commission FOR FURTHER INFORMATION CONTACT: regulations; (4) a statement of findings of fact (‘‘Commission’’) staff, and the Commission and conclusions of law; and (5) any claims having jurisdiction over the subject matter Dennis C. Kacoyanis, Trial Attorney, under the Equal Access to Justice Act. and over AJB, and pursuant to the authority Legal Division, Office of Compliance 21. The Commission may publicize the delegated in section 6(d) of the Interim and Field Operations, Consumer terms of the Agreement and the Order. Delegation of Authority ordered by the Product Safety Commission, 4330 East 22. The Agreement and the Order shall Commission on February 1, 2008, and it West Highway, Bethesda, Maryland apply to, and be binding upon, AJB and each appearing that the Settlement Agreement and 20814–4408; telephone (301) 504–7587. of its successors and assigns. the Order are in the public interest, it is SUPPLEMENTARY INFORMATION: The text of 23. The Commission issues the Order ordered, that the Settlement Agreement be, under the provisions of the CPSA, and and hereby is, accepted; and it is further the Agreement and Order appears violation of the Order may subject AJB to ordered, that AJB shall pay a civil penalty in below. appropriate legal action. the amount of forty thousand dollars August 5, 2008 24. The Agreement may be used in ($40,000.00) within twenty (20) calendar Todd A. Stevenson interpreting the Order. Understandings, days of service of the Commission’s final Secretary agreements, representations, or Order accepting the Agreement. The payment interpretations apart from those contained in shall be made by check payable to the order United States of America the Agreement and the Order may not be of the United States Treasury. Upon the used to vary or contradict their terms. The failure of AJB to make the foregoing payment Consumer Product Safety Commission Agreement shall not be waived, amended, when due, interest on the unpaid amount In the Matter of Cobmex, Inc., CPSC Docket modified, or otherwise altered without shall accrue and be paid by AJB at the federal No. 08–C0018.

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Settlement Agreement comport with the Staff’s May 2006 defect the final Order, Cobmex knowingly, 1. In accordance with 16 CFR 1118.20, notice, and posed a strangulation hazard to voluntarily, and completely waives any Cobmex, Inc. (‘‘Cobmex’’) and the staff children. rights it may have regarding the Staff’s (‘‘Staff’’) of the United States Consumer 12. On March 8, 2007, the Commission and allegations to the following: (1) an Product Safety Commission (‘‘Commission’’) Cobmex announced a recall of the Drawstring administrative or judicial hearing; (2) judicial enter into this Settlement Agreement Jackets, informing consumers that they review or other challenge or contest of the (‘‘Agreement’’). The Agreement and the should immediately remove the drawstrings validity of the Order or of the Commission’s incorporated attached Order (‘‘Order’’) settle to eliminate the hazard. actions; (3) a determination by the the Staffs allegations set forth below. 13. Cobmex had presumed and actual Commission of whether Cobmex failed to knowledge that the Drawstring Jackets comply with the CPSA and its underlying Parties distributed in commerce posed a regulations; (4) a statement of findings of fact 2. The Commission is an independent strangulation hazard and presented a and conclusions of law; and (5) any claims federal regulatory agency established substantial risk of injury to children under under the Equal Access to Justice Act. pursuant to, and responsible for the FHSA section 15(c)(l), 15 U.S.C. 1274(c)(1). 21. The Commission may publicize the enforcement of, the Consumer Product Safety Cobmex had obtained information that terms of the Agreement and the Order. Act, 15 U.S.C. 2051–2084 (‘‘CPSA’’). reasonably supported the conclusion that the 22. The Agreement and the Order shall 3. Cobmex is a corporation organized and Drawstring Jackets contained a defect that apply to, and be binding upon, Cobmex and existing under the laws of California, with its could create a substantial product hazard or each of its successors and assigns. principal offices located in Lakewood, CA. At that they created an unreasonable risk of 23. The Commission issues the Order all times relevant hereto, Cobmex imported serious injury or death. CPSA sections under the provisions of the CPSA, and and sold apparel. 15(b)(2) and (3), 15 U.S.C. 2064(b)(2) and (3), violation of the Order may subject Cobmex to required Cobmex to immediately inform the appropriate legal action. Staff Allegations Commission of the defect and risk. 24. The Agreement may be used in 4. Between January 2006 and March 2007, 14. Cobmex knowingly failed to interpreting the Order. Understandings, Cobmex imported and/or sold to retailers at immediately inform the Commission about agreements, representations, or interpretations apart from those contained in least 30,020 youth jackets with drawstrings the Drawstring Jackets as required by CPSA the Agreement and the Order may not be (‘‘Drawstring Jackets’’) sections 15(b)(2) and (3), 15 U.S.C. 2064(b)(2) used to vary or contradict their terms. The 5. Retailers sold the Drawstring Jackets to and (3), and as the term ‘‘knowingly’’ is Agreement shall not be waived, amended, consumers. defined in CPSA section 20(d), 15 U.S.C. modified, or otherwise altered without 6. The Drawstring Jackets are ‘‘consumer 2069(d). This failure violated CPSA section 1 written agreement thereto executed by the product[s],’’ and, at all times relevant hereto, 9(a)(4), 15 U.S.C. 2068(a)(4). Pursuant to party against whom such waiver, Cobmex was a ‘‘manufacturer’’ of those CPSA section 20, 15 U.S.C. 2069, this failure amendment, modification, or alteration is consumer products, which were ‘‘distributed subjected Cobmex to civil penalties. in commerce,’’ as those terms are defined in sought to be enforced. CPSA sections 3(a)(l), (4), (11), and (12), 15 Cobmex Response 25. If any provision of the Agreement and the Order is held to be illegal, invalid, or U.S.C. 2052(a)(1), (4), (11), and (12). 15. Cobmex denies the Staff’s allegations unenforceable under present or future laws 7. In February 1996, the Staff issued the above that Cobmex knowingly violated the effective during the terms of the Agreement Guidelines for Drawstrings on Children’s CPSA. Upper Outerwear (‘‘Guidelines’’) to help and the Order, such provision shall be fully prevent children from strangling or Agreement of the Parties severable. The balance of the Agreement and entangling on neck and waist drawstrings. 16. Under the CPSA, the Commission has the Order shall remain in full force and The Guidelines state that drawstrings can jurisdiction over this matter and over effect, unless the Commission and Cobmex cause, and have caused, injuries and deaths Cobmex. agree that severing the provision materially when they catch on items such as playground 17. The parties enter into the Agreement affects the purpose of the Agreement and the Order. equipment, bus doors, or cribs. In the for settlement purposes only. The Agreement 26. Pursuant to section 6(d) of the Interim Guidelines, the Staff recommends that there does not constitute an admission by Cobmex, Delegation of Authority ordered by the be no hood and neck drawstrings in or a determination by the Commission, that Commission on February 1, 2008, the children’s upper outerwear sized 2T to 12. Cobmex has knowingly violated the CPSA. Commission delegated to the Assistant 8. In June 1997, ASTM adopted a voluntary 18. In settlement of the Staff’s allegations, Executive Director for Compliance and Field standard, ASTM F1816–97, that incorporated Cobmex shall pay a civil penalty in the Operations the authority to act, with the the Guidelines. The Guidelines state that amount of twenty-five thousand dollars concurrence of the General Counsel, for the firms should be aware of the hazards and ($25,000.00) in two (2) installments as Commission under 16 CFR 1118.20 with should be sure garments they sell conform to follows: The first installment payment of respect to Staff allegations that any person or the voluntary standard. $10,000 shall be paid within twenty (20) firm violated 15 U.S.C. 2068, where the total 9. On May 19, 2006, the Commission calendar days of service of the Commission’s amount of the settlement involves no more posted on its website a letter from the final Order accepting the Agreement; the than $100,000. Commission’s Director of the Office of second installment payment of $15,000 shall Compliance to manufacturers, importers, and be paid within one (1) year of service of the Cobmex, Inc. retailers of children’s upper outerwear. The Commission’s final Order accepting the Dated: 5–29–08. letter urges them to make certain that all Agreement. Each installment payment shall By: Scott Schwartz, children’s upper outerwear sold in the be by check payable to the order of the President and Chief Executive Officer, United States complies with ASTM F1816– United States Treasury. Cobmex, Inc., 3673 Industry Avenue, Unit 97. The letter states that the Staff considers 19. Upon provisional acceptance of the 106, Lakewood, CA 90058. children’s upper outerwear with drawstrings Agreement, the Agreement shall be placed on U.S. Consumer Product Safety Commission at the hood or neck area to be defective and the public record and published in the Staff. to present a substantial risk of injury to Federal Register in accordance with the J. Gibson Mullan, young children under Federal Hazardous procedures set forth in 16 CFR 1118.20(e). In Assistant Executive Director, Office of Substances Act (‘‘FHSA’’) section 15(c), 15 accordance with 16 CFR 1118.20(f), if the Compliance and Field Operations. U.S.C. 1274(c). The letter also notes the Commission does not receive any written CPSA’s section 15(b) reporting requirements. request not to accept the Agreement within Ronald G. Yelenik, 10. Cobmex reported to the Commission fifteen (15) calendar days, the Agreement Acting Director, Legal Division, Office of that there had been no incidents or injuries shall be deemed finally accepted on the Compliance and Field Operations. from the Drawstring Jackets. sixteenth (16th) calendar day after the date it Dated: 5/30/08. 11. Cobmex’s distribution in commerce of is published in the Federal Register. By: Dennis C. Kacoyanis, the Drawstring Jackets did not meet the 20. Upon the Commission’s final Trial Attorney, Legal Division, Office of Guidelines or ASTM F1816–97, failed to acceptance of the Agreement and issuance of Compliance and Field Operations.

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United States of America agreement or otherwise comment on its prevent children from strangling or entangling on neck and waist drawstrings. Consumer Product Safety Commission contents by filing a written request with the Office of the Secretary by August 27, The Guidelines state that drawstrings can In the Matter of Cobmex, Inc., CPSC Docket 2008. cause, and have caused, injuries and deaths No. 08–C0018. when they catch on items such as playground ADDRESSES: Persons wishing to equipment, bus doors, or cribs. In the Order comment on this Settlement Agreement Guidelines, the Staff recommends that there Upon consideration of the Settlement should send written comments to be no hood and neck drawstrings in Agreement entered into between Cobmex, Comment 08–COO 15, Office of the children’s upper outerwear sized 2T to 12. Inc. (‘‘Cobmex’’) and the U.S. Consumer Secretary, Consumer Product Safety 8. In June 1997, ASTM adopted a voluntary Product Safety Commission (‘‘Commission’’) Commission, 4330 East West Highway, standard, ASTM F1816–97, that incorporated staff, and the Commission having jurisdiction the Guidelines. The Guidelines state that over the subject matter and over Cobmex, and Room 502, Bethesda, Maryland 20814– 4408. firms should be aware of the hazards and pursuant to the authority delegated in section should be sure garments they sell conform to 6(d) of the Interim Delegation of Authority FOR FURTHER INFORMATION CONTACT: Seth the voluntary standard. ordered by the Commission on February 1, B. Popkin, Trial Attorney, Legal 9. On May 19, 2006, the Commission 2008, and it appearing that the Settlement Division, Office of Compliance and posted on its Web site a letter from the Agreement and the Order are in the public Field Operations, Consumer Product Commission’s Director of the Office of interest, it is ordered, that the Settlement Safety Commission, 4330 East West Compliance to manufacturers, importers, and Agreement be, and hereby is, accepted; and Highway, Bethesda, Maryland 20814– retailers of children’s upper outerwear. The it is further ordered, that Cobmex shall pay 4408; telephone (301) 504–7612. letter urges them to make certain that all a civil penalty in the amount of twenty five children’s upper outerwear sold in the thousand dollars ($25,000.00) in two (2) SUPPLEMENTARY INFORMATION: The text of United States complies with ASTM F1816– installments as follows: The first installment the Agreement and Order appears 97. The letter states that the Staff considers payment of $10,000 shall be paid within below. children’s upper outerwear with drawstrings twenty (20) calendar days of service of the August 5, 2008. at the hood or neck area to be defective and Commission’s final Order accepting the to present a substantial risk of injury to Todd A. Stevenson, Agreement; the second installment payment young children under Federal Hazardous of $15,000 shall be paid within one (1) year Secretary. Substances Act (‘‘FHSA’’) section 15(c), 15 of service of the Commission’s final Order United States of America U.S.C. 1274(c). The letter also notes the accepting the Agreement. Each installment CPSA’s section 15(b) reporting requirements. payment shall be made by check payable to Consumer Product Safety Commission 10. Liberty informed the Commission that, the order of the United States Treasury. Upon In the Matter of Liberty Apparel Co., Inc., to the best of Liberty’s knowledge, there had the failure of Cobmex to make the foregoing CPSC Docket No. 08–C15. been no incidents or injuries from the payments when due, interest on the unpaid Sweatshirts. amount shall accrue and be paid by Cobmex Settlement Agreement 11. Liberty’s distribution in commerce of at the federal legal rate of interest set forth 1. In accordance with 16 CFR 1118.20, the Sweatshirts did not meet the Guidelines at 28 U.S.C. 1961 (a) and (b). Liberty Apparel Co., Inc. (‘‘Liberty’’) and the or ASTM F1816–97, failed to comport with Provisionally accepted and provisional staff (‘‘Staff’’) of the United States Consumer the Staff’s May 2006 defect notice, and posed Order issued on the 4th day of August, 2008. Product Safety Commission (‘‘Commission’’) a strangulation hazard to children. By Order of the Commission. enter into this Settlement Agreement 12. On December 21, 2007, the (‘‘Agreement’’). The Agreement and the Commission and Liberty announced a recall Todd A. Stevenson, incorporated attached Order (‘‘Order’’) settle of the Sweatshirts. Secretary, U.S. Consumer Product Safety the Staff’s allegations set forth below. 13. Liberty had presumed and actual Commission. knowledge that the Sweatshirts distributed in Parties [FR Doc. E8–18395 Filed 08–11–08; 8:45 am] commerce posed a strangulation hazard and BILLING CODE 6355–01–M 2. The Commission is an independent presented a substantial risk of injury to Federal regulatory agency established children under FHSA section 15(c)(1), 15 pursuant to, and responsible for the U.S.C. 1274(c)(1). Liberty had obtained CONSUMER PRODUCT SAFETY enforcement of, the Consumer Product Safety information that reasonably supported the Act, 15 U.S.C. 2051–2084 (‘‘CPSA’’). COMMISSION conclusion that the Sweatshirts contained a 3. Liberty is a corporation organized and defect that could create a substantial product [CPSC Docket No. 08–COO 15] existing under the laws of New York, with its hazard or that they created an unreasonable principal offices located in New York, New risk of serious injury or death. CPSA sections Liberty Apparel Co., Inc.; Provisional York. At all times relevant hereto, Liberty 15(b)(2) and (3), 15 U.S.C. 2064(b)(2) and (3), Acceptance of a Settlement Agreement sold apparel. required Liberty to immediately inform the and Order Staff Allegations Commission of the defect and risk. 14. Liberty knowingly failed to AGENCY: Consumer Product Safety 4. In August 2007, Liberty imported 12,228 immediately inform the Commission about Commission. Jewel girls’ hooded sweatshirts with the Sweatshirts as required by CPSA sections drawstrings at the hood (‘‘Sweatshirts’’). 15(b)(2) and (3), 15 U.S.C. 2064(b)(2) and (3), ACTION: Notice. From August to October 2007, Liberty sold and as the term ‘‘knowingly’’ is defined in and/or distributed in commerce the CPSA section 20(d), 15 U.S.C. 2069(d). This SUMMARY: It is the policy of the Sweatshirts. Commission to publish settlements failure violated CPSA section 19(a)(4), 15 5. Retailers sold the Sweatshirts to U.S.C. 2068(a)(4). Pursuant to CPSA section which it provisionally accepts under the consumers. 20, 15 U.S.C. 2069, this failure subjected Consumer Product Safety Act in the 6. The Sweatshirts are ‘‘consumer Liberty to civil penalties. Federal Register in accordance with the product[s],’’ and, at all times relevant hereto, terms of 16 CFR 1118.20(e). Published Liberty was a ‘‘manufacturer’’ of those Liberty’s Response below is a provisionally accepted consumer products, which were ‘‘distributed 15. Liberty denies the Staff’s allegations Settlement Agreement with Liberty in commerce,’’ as those terms are defined in above that Liberty knowingly violated the Apparel Co., Inc., containing a civil CPSA sections 3(a)(1), (4), (11), and (12), 15 CPSA. U.S.C. 2052(a)(1), (4), (11), and (12). penalty of $35,000.00. 7. In February 1996, the Staff issued the Agreement of the Parties DATES: Any interested person may ask Guidelines for Drawstrings on Children’s 16. Under the CPSA, the Commission has the Commission not to accept this Upper Outerwear (‘‘Guidelines’’) to help jurisdiction over this matter and over Liberty.

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17. The parties enter into the Agreement agree that severing the provision materially Todd A. Stevenson, for settlement purposes only. The Agreement affects the purpose of the Agreement and the Secretary, U.S. Consumer Product Safety does not constitute an admission by Liberty, Order. Commission. or a determination by the Commission, that 27. Pursuant to section 6(d) of the Interim [FR Doc. E8–18402 Filed 8–11–08; 8:45 am] Liberty has knowingly violated the CPSA. Delegation of Authority ordered by the BILLING CODE 6355–01–M 18. In settlement of the Staff’s allegations, Commission on February 1, 2008, the Liberty shall pay a civil penalty in the Commission delegated to the Assistant amount of thirty-five thousand dollars Executive Director for Compliance and Field ($35,000.00) within twenty (20) calendar Operations the authority to act, with the CONSUMER PRODUCT SAFETY days of service of the Commission’s final concurrence of the General Counsel, for the COMMISSION Order accepting the Agreement. The payment Commission under 16 CFR 1118.20 with [CPSC Docket No. 08–C0014] shall be by check payable to the order of the respect to Staff allegations that any person or United States Treasury. firm violated 15 U.S.C. 2068, where the total Rebelette International Trading 19. Upon provisional acceptance of the amount of the settlement involves no more Corporation, Provisional Acceptance Agreement, the Agreement shall be placed on than 100,000. of a Settlement Agreement and Order the public record and published in the Liberty Apparel Co., Inc. Federal Register in accordance with the Dated: 7/3/08. AGENCY: Consumer Product Safety procedures set forth in 16 CFR 1118.20(e). In Commission. accordance with 16 CFR 1118.20(e)(1), if the By: Hagai Laniado, Commission does not receive any written President, Liberty Apparel Co., Inc., 1407 ACTION: Notice. request not to accept the Agreement within Broadway, Suite 1500, New York, NY fifteen (15) calendar days, the Agreement 10018. SUMMARY: It is the policy of the shall be deemed finally accepted on the Dated: 7/3/08. Commission to publish settlements sixteenth (16th) calendar day after the date it By: David Laniado, Esq., which it provisionally accepts under the is published in the Federal Register. 55 Atlantic Avenue, Lynbrook, NY 11563, Consumer Product Safety Act in the 20. Upon the Commission’s final Counsel for Liberty Apparel Co., Inc. Federal Register in accordance with the acceptance of the Agreement and issuance of U.S. Consumer Product Safety Commission terms of 16 CFR 1118.20(e). Published the final Order, Liberty knowingly, Staff. below is a provisionally accepted voluntarily, and completely waives any J. Gibson Mullan, Settlement Agreement with Rebelette rights it may have in this matter to the Assistant Executive Director, Office of International Trading Corporation, following: (1) an administrative or judicial Compliance and Field Operations. hearing; (2) judicial review or other challenge containing a civil penalty of $40,000.00. or contest of the validity of the Order or of Ronald G. Yelenik, DATES: Any interested person may ask the Commission’s actions; (3) a Acting Director, Legal Division, Office of the Commission not to accept this determination by the Commission of whether Compliance and Field Operations. agreement or otherwise comment on its Liberty failed to comply with the CPSA and Dated: 7/31/08. contents by filing a written request with its underlying regulations; (4) a statement of By: Seth B. Popkin, the Office of the Secretary by August 27, findings of fact and conclusions of law; and Trial Attorney, Legal Division, Office of 2008. (5) any claims under the Equal Access to Compliance and Field Operations. Justice Act. ADDRESSES: Persons wishing to 21. Upon issuance of, and Liberty’s United States of America comment on this Settlement Agreement should send written comments to the compliance with, the final Order, the Consumer Product Safety Commission Commission regards this matter as resolved Comment 08-C0014, Office of the and agrees not to bring a civil penalty action In the Matter of Liberty Apparel Co., Inc. Secretary, Consumer Product Safety against Liberty based upon the Staff’s CPSC Docket No. 08–COO15 Commission, 4330 East West Highway, allegations contained herein regarding the Order Room 502, Bethesda, Maryland 20814– Sweatshirts. Upon consideration of the Settlement 4408. 22. The Commission may publicize the Agreement entered into between Liberty terms of the Agreement and the Order. FOR FURTHER INFORMATION CONTACT: Seth Apparel Co., Inc. (‘‘Liberty’’) and the U.S. 23. The Agreement and the Order shall B. Popkin, Trial Attorney, Legal Consumer Product Safety Commission apply to, and be binding upon, Liberty and Division, Office of Compliance and (‘‘Commission’’) staff, and the Commission each of its successors and assigns. Field Operations, Consumer Product having jurisdiction over the subject matter 24. The Commission issues the Order and over Liberty, and pursuant to the Safety Commission, 4330 East West under the provisions of the CPSA, and authority delegated in section 6(d) of the Highway, Bethesda, Maryland 20814– violation of the Order may subject Liberty to Interim Delegation of Authority ordered by 4408; telephone (301) 504–7612. appropriate legal action. the Commission on February 1, 2008, and it SUPPLEMENTARY INFORMATION: 25. The Agreement may be used in The text of appearing that the Settlement Agreement and interpreting the Order. Understandings, the Agreement and Order appears the Order are in the public interest, it is agreements, representations, or below. ordered, that the Settlement Agreement be, interpretations apart from those contained in and hereby is, accepted; and it is further August 5, 2008. the Agreement and the Order may not be ordered, that Liberty shall pay a civil penalty Todd A. Stevenson, used to vary or contradict their terms. The in the amount of thirty-five thousand dollars Agreement shall not be waived, amended, Secretary. ($35,000.00) within twenty (20) calendar modified, or otherwise altered without days of service of the Commission’s final United States of America written agreement thereto executed by the Order accepting the Agreement. The payment party against whom such waiver, Consumer Product Safety Commission shall be made by check payable to the order amendment, modification, or alteration is In the Matter of Rebelette International of the United States Treasury. Upon the sought to be enforced. Trading Corporation, CPSC Docket No. 08– failure of Liberty to make the foregoing 26. If any provision of the Agreement and C0014. payment when due, interest on the unpaid the Order is held to be illegal, invalid, or amount shall accrue and be paid by Liberty unenforceable under present or future laws Settlement Agreement at the federal legal rate of interest set forth effective during the terms of the Agreement 1. In accordance with 16 CFR 1118.20, at 28 U.S.C. 1961(a) and (b). and the Order, such provision shall be fully Rebelette International Trading Corporation severable. The balance of the Agreement and Provisionally accepted and provisional (‘‘Rebelette’’) and the staff (‘‘Staff’’) of the the Order shall remain in full force and Order issued on the 4th day of August, 2008. United States Consumer Product Safety effect, unless the Commission and Liberty By Order of the Commission Commission (‘‘Commission’’) enter into this

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Settlement Agreement (‘‘Agreement’’). The 12. On March 5, 2008, the Commission and of law; and (5) any claims under the Equal Agreement and the incorporated attached Rebelette announced a recall of the Access to Justice Act. Order (‘‘Order’’) settle the Staff’s allegations Sweatshirts. 21. The Commission may publicize the set forth below. 13. Rebelette had presumed and actual terms of the Agreement and the Order. knowledge that the Sweatshirts distributed in Parties 22. The Agreement and the Order shall commerce posed a strangulation hazard and apply to, and be binding upon, Rebelette and 2. The Commission is an independent presented a substantial risk of injury to each of its successors and assigns. federal regulatory agency established children under FHSA section 15(c)(1), 15 23. The Commission issues the Order pursuant to, and responsible for the U.S.C. 1274(c)(1). Rebelette had obtained under the provisions of the CPSA, and information that reasonably supported the enforcement of, the Consumer Product Safety violation of the Order may subject Rebelette Act, 15 U.S.C. 2051–2084 (‘‘CPSA’’). conclusion that the Sweatshirts contained a to appropriate legal action. 3. Rebelette is a corporation organized and defect that could create a substantial product 24. The Agreement may be used in existing under the laws of California, with its hazard or that they created an unreasonable interpreting the Order. Understandings, principal offices located in South El Monte, risk of serious injury or death. CPSA sections agreements, representations, or California. At all times relevant hereto, 15(b)(2) and (3), 15 U.S.C. 2064(b)(2) and (3), Rebelette sold apparel. required Rebelette to immediately inform the interpretations apart from those contained in Commission of the defect and risk. the Agreement and the Order may not be Staff Allegations 14. Rebelette knowingly failed to used to vary or contradict their terms. The 4. From July to August, 2007, Rebelette immediately inform the Commission about Agreement shall not be waived, amended, imported 4,793 girls’ hooded sweatshirts the Sweatshirts as required by CPSA sections modified, or otherwise altered without with drawstrings through the hood 15(b)(2) and (3), 15 U.S.C. 2064(b)(2) and (3), written agreement thereto executed by the (‘‘Sweatshirts’’). From July to September, and as the term ‘‘knowingly’’ is defined in party against whom such waiver, 2007, Rebelette sold and/or distributed in CPSA section 20(d), 15 U.S.C. 2069(d). This amendment, modification, or alteration is commerce the Sweatshirts. failure violated CPSA section 19(a)(4), 15 sought to be enforced. 5. Retailers sold the Sweatshirts to U.S.C. 2068(a)(4). Pursuant to CPSA section 25. If any provision of the Agreement and consumers. 20, 15 U.S.C. 2069, this failure subjected the Order is held to be illegal, invalid, or 6. The Sweatshirts are ‘‘consumer Rebelette to civil penalties. unenforceable under present or future laws product[s],’’ and, at all times relevant hereto, Rebelette’s Response effective during the terms of the Agreement Rebelette was a ‘‘manufacturer’’ of those 15. Rebelette denies the Staff has and the Order, such provision shall be fully consumer products, which were ‘‘distributed severable. The balance of the Agreement and in commerce,’’ as those terms are defined in allegations above that Rebelette knowingly violated the CPSA. the Order shall remain in full force and CPSA sections 3(a)(1), (4), (11), and (12), 15 effect, unless the Commission and Rebelette U.S.C. 2052(a)(1), (4), (11), and (12). Agreement of the Parties agree that severing the provision materially 7. In February 1996, the Staff issued the 16. Under the CPSA, the Commission has affects the purpose of the Agreement and the Guidelines for Drawstrings on children’s jurisdiction over this matter and over Order. Upper Outerwear (‘‘Guidelines’’) to help Rebelette. 26. Pursuant to section 6(d) of the Interim prevent children from strangling or 17. The parties enter into the Agreement entangling on neck and waist drawstrings. Delegation of Authority ordered by the for settlement purposes only. The Agreement Commission on February 1, 2008, the The Guidelines state that drawstrings can does not constitute an admission by cause, and have caused, injuries and deaths Commission delegated to the Assistant Rebelette, or a determination by the Executive Director for Compliance and Field when they catch on items such as playground Commission, that Rebelette has knowingly equipment, bus doors, or cribs. In the Operations the authority to act, with the violated the CPSA. concurrence of the General Counsel, for the Guidelines, the Staff recommends that there 18. In settlement of the Staff’s allegations, Commission under 16 CFR 1118.20 with be no hood and neck drawstrings in Rebelette shall pay a civil penalty in the children’s upper outerwear sized 2T to 12. amount of forty thousand dollars respect to Staff allegations that any person or 8. In June 1997, ASTM adopted a voluntary ($40,000.00) within twenty (20) calendar firm violated 15 U.S.C. 2068, where the total standard, ASTM F1816–97, that incorporated days of service of the Commission’s final amount of the settlement involves no more the Guidelines. The Guidelines state that Order accepting the Agreement. The payment than $100,000. firms should be aware of the hazards and shall be by check payable to the order of the Rebelette International Trading Corporation. should be sure garments they sell conform to United States Treasury. Dated: 6/27/08. the voluntary standard. 19. Upon provisional acceptance of the By: Hong Chen, 9. On May 19, 2006, the Commission Agreement, the Agreement shall be placed on President, Rebelette International Trading posted on its Web site a letter from the the public record and published in the Commission’s Director of the Office of Federal Register in accordance with the Corporation, 2422 N. Strozier Avenue, Compliance to manufacturers, importers, and procedures set forth in 16 CFR 1118.20(e). In South El Monte, CA 91733. retailers of children’s upper outerwear. The accordance with 16 CFR 1118.20(f), if the Dated: 6/27/08. letter urges them to make certain that all Commission does not receive any written By: Roger C. Hsu, Esq. children’s upper outerwear sold in the request not to accept the Agreement within 201 South Lake Avenue, Suite 302, United States complies with ASTM F1816– fifteen (15) calendar days, the Agreement Pasadena, CA 91101–3023, Counsel for 97. The letter states that the Staff considers shall be deemed finally accepted on the Rebelette International Trading children’s upper outerwear with drawstrings sixteenth (16th) calendar day after the date it Corporation. at the hood or neck area to be defective and is published in the Federal Register. to present a substantial risk of injury to 20. Upon the Commission’s final U.S. Consumer Product Safety Commission young children under the Federal Hazardous acceptance of the Agreement and issuance of Staff. Substances Act (‘‘FHSA’’) section 15(c), 15 the final Order, Rebelette knowingly, J. Gibson Mullan, U.S.C. 1274(c). The letter also notes the voluntarily, and completely waives any Assistant Executive Director, Office of CPSA’s section 15(b) reporting requirements. rights it may have in this matter to the Compliance and Field Operations. 10. Rebelette informed the Commission following: (1) an administrative or judicial Ronald G. Yelenik, that there had been no incidents or injuries hearing; (2) judicial review or other challenge Acting Director, Legal Division, Office of from the Sweatshirts. or contest of the validity of the Order or of Compliance and Field Operations. 11. Rebelette’s distribution in commerce of the Commission’s actions; (3) a the Sweatshirts did not meet the Guidelines determination by the Commission of whether Dated: 7–31–08. or ASTM F1816–97, failed to comport with Rebelette failed to comply with the CPSA By: Seth B. Popkin, the Staff’s May 2006 defect notice, and posed and its underlying regulations; (4) a Trial Attorney, Legal Division, Office a strangulation hazard to children. statement of findings of fact and conclusions Compliance and Field Operations.

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United States of America ADDRESSES: Persons wishing to equipment, bus doors, or cribs. In the Guidelines, the Staff recommends that there Consumer Product Safety Commission comment on this Settlement Agreement should send written comments to the be no hood and neck drawstrings in In the Matter of Rebelette International Comment 08–C0019, Office of the children’s upper outerwear sized 2T to 12. Trading Corporation, CPSC Docket No. 08– 8. In June 1997, ASTM adopted a voluntary C0014. Secretary, Consumer Product Safety standard, ASTM F1816–97, that incorporated Commission, 4330 East West Highway, Order the Guidelines. The Guidelines state that Room 502, Bethesda, Maryland 208 firms shou1d be aware of the hazards and Upon consideration of the Settlement 144408. should be sure garments they sell conform to Agreement entered into between Rebelette the voluntary standard. FOR FURTHER INFORMATION CONTACT: International Trading Corporation 9. On May 19, 2006, the Commission (‘‘Rebelette’’) and the U.S. Consumer Product Dennis C. Kacoyanis, Trial Attorney, posted on its website a letter from the Safety Commission (‘‘Commission’’) staff, Legal Division, Office of Compliance Commission’s Director of the Office of and the Commission having jurisdiction over and Field Operations, Consumer Compliance to manufacturers, importers, and the subject matter and over Rebelette, and Product Safety Commission, 4330 East retailers of children’s upper outerwear. The pursuant to the authority delegated in section West Highway, Bethesda, Maryland 208 letter urges them to make certain that all 6(d) of the Interim Delegation of Authority 14–4408; telephone (301) 504–7587. children’s upper outerwear sold in the ordered by the Commission on February 1, United States complies with ASTM Fl816– 2008, and it appearing that the Settlement SUPPLEMENTARY INFORMATION: The text of 97. The letter states that the Staff considers Agreement and the Order are in the public the Agreement and Order appears children’s upper outerwear with drawstrings interest, it is ordered, that the Settlement below. at the hood or neck area to be defective and Agreement be, and hereby is, accepted; and to present a substantial risk of injury to it is further ordered, that Rebelette shall pay August 5, 2008 a civil penalty in the amount of forty Todd A. Stevenson, young children under Federal Hazardous thousand dollars ($40,000.00) within twenty Secretary. Substances Act (‘‘FHSA’’) section 15(c), 15 (20) calendar days of service of the U.S.C § 1274(c). The letter aLso notes the Commission’s final Order accepting the United States of America CPSA section 15(b) reporting requirements. 10. Scope indicated to the Commission that Agreement. The payment shall be made by Consumer Product Safety Commission check payable to the order of the United there had been no incidents or injuries from In the Matter of Scope Imports, Inc. States Treasury. Upon the failure of Rebelette the Drawstring Sweatshirts. CPSC Docket No. 08–C0019 to make the foregoing payment when due, 11. Scope’s distribution in commerce of the interest on the unpaid amount shall accrue Settlement Agreement Drawstring Sweatshirts did not meet the Guidelines or ASTM F1816–97, failed to and be paid by Rebelette at the federal legal 1. In accordance with 16 C.F.R. § 1118.20, rate of interest set forth at 28 U.S.C. 1961(a) comport with the Staff’s May 2006 defect Scope Imports, Inc. (‘‘Scope’’) and the staff notice, and posed a strangulation hazard to and (b). (‘‘Staff’’) of the United States Consumer Provisionally accepted and provisional children. Product Safety Commission (‘‘Commission’’) 12. On December 6, 2007, the Commission Order issued on the 4th day of August, 2008. enter into this Settlement Agreement and Scope announced a recall of the (‘‘Agreement’’). The Agreement and the By Order of the Commission. Drawstring Sweatshirts, informing consumers Todd A. Stevenson, incorporated attached Order (‘‘Order’’) settle that they should immediately remove the Secretary, U.S. Consumer Product Safety the Staff’s allegations set forth below drawstrings to eliminate the hazard. Commission. Parties 13. Scope had presumed and actual [FR Doc. E8–18396 Filed 8–11–08; 8:45 am] 2. The Commission is an independent knowledge that the Drawstring Sweatshirts BILLING CODE 6355–01–M federal regulatory agency established distributed in commerce posed a pursuant to, and responsible for the strangulation hazard and presented a enforcement of, the Consumer Product Safety substantial risk of injury to children under CONSUMER PRODUCT SAFETY Act, 15 U.S.C. §§ 2051–2084 (‘‘CPSA’’). FHSA section 15(c)(1), 15 U.S.C. § 1274(c)(1). COMMISSION 3. Scope is a corporation organized and Scope had obtained information that existing under the laws of Texas, with its reasonably supported the conclusion that the (CPSC Docket No. 08–C0019) principal offices located in Houston, TX. At Drawstring Sweatshirts contained a defect all times relevant hereto, Scope imported and that could create a substantial product hazard Scope Imports, Inc., Provisional sold apparel. or that they created an unreasonable risk of Acceptance of a Settlement Agreement serious injury or death. CPSA sections and Order Staff Allegations 15(b)(2) and (3), 15 U.S.C. § 2064(b)(2) and 4. From July 30, 2007 to August 30, 2007, (3), required Scope to immediately inform AGENCY: Consumer Product Safety Scope imported and/or sold to retailers at the Commission of the defect and risk. Commission least 95,628 boys’ hooded sweatshirts with 14. Scope knowingly failed to immediately ACTION: Notice hood and neck drawstrings (‘‘Drawstring inform the Commission about the Drawstring Sweatshirts’’). Sweatshirts as required by CPSA sections SUMMARY: It is the policy of the 5. Retailers sold the Drawstring Sweatshirts 15(b)(2) and (3), 15 U.S.C. § 2064(b)(2) ad (3), Commission to publish settlements to consumers. and as the term ‘‘knowingly’’ is defined in which it provisionally accepts under the 6. The Drawstring Sweatshirts are CPSA section 20(d), 15 U.S.C. § 2069(d). This Consumer Product Safety Act in the ‘‘consumer product[s],’’ and, at all times failure violated CPSA section 19(a)(4), 15 U.S.C. § 20(a)(4). Pursuant to CPSA section Federal Register in accordance with the relevant hereto, Scope was a ‘‘manufacturer’’ of those consumer products, which were 20. 15 U.S.C. § 2069, this failure subjected terms of 16 CFR § 1118.20(e). Published ‘‘distributed in commerce,’’ as those terms Scope to civil penalties. below is a provisionally accepted are defined in CPSA sections 3(a)(1), (4), (11), Settlement Agreement with Scope and (12), 15 U.S.C. § 2052(a)(1), (4), (11), and Scope Response Imports, Inc., containing a civil penalty (12). 15. Scope denies the Staff’s allegations set of $70,000.00. 7. In February 1996, the Staff issued the forth above, including but not limited to, any allegation that it violated any provision of the DATES: Any interested person may ask Guidelines for Drawstrings on Children’s CPSA or HSA. the Commission not to accept this Upper Outerwear (‘‘Guidelines’’) to help prevent children from strangling or 16. Scope has entered into the Agreement agreement or otherwise comment on its entangling on neck and waist drawstrings. for settlement purposes only. The Agreement contents by filing a written request with The Guidelines state that drawstrings can and Order do not constitute and are not the Office of the Secretary by August 27, cause, and have caused, injuries and deaths evidence of any fault or wrongdoing on the 2008. when they catch on items such as playground part of Scope.

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Agreement of the Parties Commission on February 1, 2008, the CONSUMER PRODUCT SAFETY 17. Under the CPSA, the Commission has Commission delegated to the Assistant COMMISSION jurisdiction over this matter and over Scope. Executive Director for Compliance and Field 18. The parties enter into the Agreement Operations the authority to act, with the (CPSC Docket No. 08–C0021) for settlement purposes only. The Agreement concurrence of the General Counsel, for the Sears Holdings Management does not constitute an admission by Scope, Commission under 16 CFR § 1118.20 with or a determination by the Commission, that respect to Staff allegations that any person or Corporation, Provisional Acceptance Scope has knowingly violated the CPSA. firm violated 15 U.S.C § 2068, where the total of a Settlement Agreement and Order 19. In settlement of the Staff’s allegations, amount of the settlement involves no more Scope shall pay a civil penalty in the amount AGENCY: Consumer Product Safety than $100,000. of seventy thousand dollars ($70,000.00) Commission. within twenty (20) calendar days of service Scope Imports, Inc. ACTION: Notice. of the Commission’s final Order accepting Dated: 6/10/08. SUMMARY: It is the policy of the the Agreement The payment shall be by By: Alan Finkelman, check payable to the order of the United Commission to publish settlements President, Scope Imports, Inc., 8020 States Treasury. Blankenship Drive, Houston, TX 77055. which it provisionally accepts under the 20. Upon provisional acceptance of the Consumer Product Safety Act in the Agreement, the Agreement shall be placed on U.S. Consumer Product Safety Commission Federal Register in accordance with the the public record and published in the Staff. Federal Register in accordance with the terms of 16 CFR § 1118.20(e). Published J. Gibson Mullan, below is a provisionally-accepted procedures set forth in 16 CFR § 1118.20(e). Assistant Executive Director, Office of In accordance with 16 CFR § 1118.20(f), if the Settlement Agreement with Sears Compliance and Field Operations. Commission does not receive any written Holdings Management Corporation, request not to accept the Agreement within Ronald G. Yelenik, containing a civil penalty of $50,000.00. Acting Director, Legal Division, Office of fifteen (15) calendar days, the Agreement DATES: Any interested person may ask shall be deemed finally accepted on the Compliance and Field Operations. the Commission not to accept this sixteenth (16th) calendar day after the date it Dated: 6/10/08. is published in the Federal Register. agreement or otherwise comment on its 21. Upon the Commission’s final By: Dennis C. Kacoyanis, contents by filing a written request with acceptance of the Agreement and issuance of Trial Attorney, Legal Division, Office of the Office of the Secretary by August 27, the final Order, Scope knowingly, Compliance and Field Operations. 2008. voluntarily, and completely waives any United States of America ADDRESSES: Persons wishing to rights it may have regarding the Staff’s comment on this Settlement Agreement allegations to the following: (1) an Consumer Product Safety Commission administrative or judicial hearing; (2) judicial should send written comments to the review or other challenge or contest of the In the Matter of Scope Imports, Inc., CPSC Comment 08–C0021, Office of the validity of the Order or of the Commission’s Docket No. 08–C0019. Secretary, Consumer Product Safety actions; (3) a determination by the Order Commission, 4330 East West Highway, Commission of whether Scope failed to Room 502, Bethesda, Maryland 20814– comply with the CPSA and its underlying Upon consideration of the Settlement 4408. regulations; (4) a statement of findings of fact Agreement entered into between Scope and conclusions of law; and (5) any claims Imports, Inc. (‘‘Scope’’) and the U.S. FOR FURTHER INFORMATION CONTACT: under the Equal Access to Justice Act. Consumer Product Safety Commission Dennis C. Kacoyanis, Trial Attorney, 22. The Commission may publicize the (‘‘Commission’’) staff, and the Commission Legal Division, Office of Compliance terms of the Agreement and the Order. having jurisdiction over the subject matter and Field Operations, Consumer 23. The Agreement and the Order shall and over Scope, and pursuant to the Product Safety Commission, 4330 East apply to, and be binding upon, Scope and authority delegated in section 6(d) of the West Highway, Bethesda, Maryland each of its successors and assigns. Interim Delegation of Authority ordered by 20814–4408; telephone (301) 504–7587. 24. The Commission issues the Order under the provisions of the CPSA, and the Commission on February 1, 2008, and it SUPPLEMENTARY INFORMATION: The text of violation of the Order may subject Scope to appearing that the Settlement Agreement and the Agreement and Order appears appropriate legal action. the Order are in the public interest, it is below. ordered, that the Settlement Agreement be, 25. The Agreement may be used in Dated: August 5, 2008. interpreting the Order. Understandings, and hereby is, accepted; and it is further agreements, representations, or ordered, that Scope shall pay a civil penalty Todd A. Stevenson, interpretations apart from those contained in in the amount of seventy thousand dollars Secretary. the Agreement and the Order may not be ($70,000.00) within twenty (20) calendar United States of America used to vary or contradict their terms. The days of service of the Commission’s final Agreement shall not be waived, amended, Order accepting the Agreement. The payment Consumer Product Safety Commission modified, or otherwise altered without shall be made by check payable to the order In the Matter of Sears Holdings Management written agreement thereto executed by the of the United States Treasury. Upon the Corporation. party against whom such waiver, CPSC Docket No. 08–C0021 amendment, modification, or altercation is failure of Scope to make the foregoing sought to be enforced. payment when due, interest on the unpaid Settlement Agreement 26. If any provision of the Agreement and amount shall accrue and be paid by Scope at 1. In accordance with 16 CFR § 1118.20, the Order is held to be illegal, invalid, or the federal legal rate of interest set forth at Sears Holdings Management Corporation unenforceable under present or future laws 28 U.S.C. § 1961(a) and (b). (‘‘Sears’’) and the staff (‘‘Staff’’) of the United effective during the terms of the Agreement Provisionally accepted and provisional States Consumer Product Safety Commission and the Order, such provision shall be fully Order issued on the 4th day of August 2008. (‘‘Commission’’) enter into this Settlement severable. The balance of the Agreement and Agreement (‘‘Agreement’’). The Agreement the Order shall remain in full force and By Order of The Commission. and the incorporated attached Order effect, unless the Commission and Scope Todd A. Stevenson, (‘‘Order’’) settle the Staffs allegations set forth agree that severing the provision materially Secretary, U.S. Consumer Product Safety below. affects the purpose of the Agreement and the Commission. Order. Parties 27. Pursuant to section 6(d) of the Interim [FR Doc. E8–18398 Filed 8–11–08; 8:45 am] 2. The Commission is an independent Delegation of Authority ordered by the BILLING CODE 6355–01–M federal regulatory agency established

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pursuant to, and responsible for the Sears had obtained information that 23. The Agreement may be used in enforcement of, the Consumer Product Safety reasonably supported the conclusion that the interpreting the Order. Understandings, Act, 15 U.S.C. §§2051–2084 (‘‘CPSA’’). Drawstring Sweaters contained a defect that agreements, representations, or 3. Sears is a corporation organized and could create a substantial product hazard or interpretations apart from those contained in existing under the laws of Delaware, with its that they created an unreasonable risk of the Agreement and the Order may not be principal offices located in Hoffman Estates, serious injury or death. CPSA sections used to vary or contradict their terms. The IL. At all times relevant hereto, Sears sold 15(b)(2) and (3), 15 U.S.C. 2064(b)(2) and (3), Agreement shall not be waived, amended, required Sears to immediately inform the apparel. modified, or otherwise altered without Commission of the defect and risk. Staff Allegations 13. Sears knowingly failed to immediately written agreement thereto executed by the 4. From September 13, 2007, to September inform the Commission about the Drawstring party against whom such waiver, 18, 2007, Sears held for sale and/or sold to Sweaters as required by CPSA sections amendment, modification, or alteration is consumers at least 5,214 Personal Identity v- 15(b)(2) and (3), 15 U.S.C. 2064(b)(2) and (3), sought to be enforced. neck sweaters with hood and neck and as the term ‘‘knowingly’’ is defined in 24. If any provision of the Agreement and drawstrings (‘‘Drawstring Sweaters’’). CPSA section 20(d), 15 U.S.C. 2069(d). This the Order is held to be illegal, invalid, or 5. The Drawstring Sweaters are ‘‘consumer failure violated CPSA section 19(a)(4), 15 unenforceable under present or future laws product[s],’’ and, at all times relevant hereto, U.S.C. 2068(a)(4). Pursuant to CPSA section effective during the terms of the Agreement Sears was a ‘‘retailer’’ of those consumer 20, 15 U.S.C. 2069, this failure subjected and the Order, such provision shall be fully products, which were ‘‘distributed in Sears to civil penalties. severable. The balance of the Agreement and commerce,’’ as those terms are defined in Sears Response the Order shall remain in full force and CPSA sections 3(a)(1), (6), (11), and (12), 15 effect, unless the Commission and Sears U.S.C. 2052(a)(l), (6), (11), and (12). 14. Sears denies the Staff’s allegations agree that severing the provision materially above that Sears knowingly violated the 6. In February 1996, the Staff issued the affects the purpose of the Agreement and the CPSA. Guidelines for Drawstrings on Children’s Order. Upper Outerwear (‘‘Guidelines’’) to help Agreement of the Parties 25. Pursuant to section 6(d) of the Interim prevent children from strangling or Delegation of Authority ordered by the entangling on drawstrings. The Guidelines 15. Under the CPSA, the Commission has jurisdiction over this matter and over Sears. Commission on February 1, 2008, the state that drawstrings can cause, and have 16. The parties enter into the Agreement Commission delegated to the Assistant caused, injuries and deaths when they catch for settlement purposes only. The Agreement Executive Director for Compliance and Field on items such as playground equipment, bus does not constitute an admission by Sears, or Operations the authority to act, with the doors, or cribs. In the Guidelines, the Staff a determination by the Commission, that concurrence of the General Counsel, for the recommends that there be no hood and neck Sears has knowingly violated the CPSA. Commission under 16 C.F.R. § 1118.20 with drawstrings in children’s upper outerwear 17. In settlement of the Staff’s allegations, respect to Staff allegations that any person or sized 2T to 12. Sears shall pay a civil penalty in the amount firm violated 15 U.S.C. § 2068, where the 7. In June 1997, ASTM adopted a voluntary of fifty thousand dollars ($50,000.00) within total amount of the settlement involves no standard, ASTM F1816–97, that incorporated twenty (20) calendar days of service of the the Guidelines. The Guidelines state that more than $100,000. Commission’s final Order accepting the SEARS HOLDINGS MANAGEMENT firms should be aware of the hazards and Agreement. The payment shall be by check should be sure garments they sell conform to CORPORATION payable to the order of the United States Dated: 7–22–08 By: the voluntary standard. Treasury. 8. On May 19, 2006, the Commission 18. Upon provisional acceptance of the Mary Tortorice posted on its Web site a letter from the Agreement, the Agreement shall be placed on Vice President and Deputy General Counsel Commission’s Director of the Office of the public record and published in the Sears Holdings Management Corporation Compliance to manufacturers, importers, and Federal Register in accordance with the 3333 Beverly Road retailers of children’s upper outerwear. The procedures set forth in 16 CFR 1118.20(e). In Hoffman Estates, IL 60179 letter urges them to make certain that all accordance with 16 CFR 1118.20(f), if the U.S. CONSUMER PRODUCT SAFETY children’s upper outerwear sold in the Commission does not receive any written COMMISSION STAFF United States complies with ASTM F1816– request not to accept the Agreement within J. Gibson Mullan 97. The letter states that the Staff considers fifteen (15) calendar days, the Agreement Assistant Executive Director children’s upper outerwear with drawstrings shall be deemed finally accepted on the Office of Compliance and Field Operations at the hood or neck area to be defective and sixteenth (16th) calendar day after the date it Ronald G. Yelenik to present a substantial risk of injury to is published in the Federal Register. young children under Federal Hazardous Acting Director Legal Division 19. Upon the Commission’s final Office of Compliance and Field Operations Substances Act (‘‘FHSA’’) section 15(c), 15 acceptance of the Agreement and issuance of U.S.C. § 1274(c). The letter also notes the the final Order, Sears knowingly, voluntarily, Dated: 8–1–08 By: CPSA’s section 15(b) reporting requirements. and completely waives any rights it may have Dennis C. Kacoyanis 9. Sears informed the Commission that regarding the Staff’s allegations to the Trial Attorney there had been no incidents or injuries from following: (1) An administrative or judicial Legal Division the Drawstring Sweaters. hearing; (2) judicial review or other challenge Office of Compliance and Field Operations 10. Sears’s distribution in commerce of the or contest of the validity of the Order or of Drawstring Sweaters did not meet the the Commission’s actions; (3) a United States of America Guidelines or ASTM F1816–97, failed to determination by the Commission of whether Consumer Product Safety Commission comport with the Staff’s May 2006 defect Sears failed to comply with the CPSA and its notice, and posed a strangulation hazard to underlying regulations; (4) a statement of In the Matter of Sears Holdings Management children. findings of fact and conclusions of law; and Corporation ) 11. On December 6, 2007, the Commission (5) any claims under the Equal Access to CPSC Docket No. 08–C0021 and Sears announced a recall of the Justice Act. Order Drawstring Sweaters, informing consumers 20. The Commission may publicize the that they should immediately remove the terms of the Agreement and the Order. Upon consideration of the Settlement drawstrings to eliminate the hazard. 21. The Agreement and the Order shall Agreement entered into between Sears 12. Sears had presumed and actual apply to, and be binding upon, Sears and Holdings Management Corporation (‘‘Sears’’) knowledge that the Drawstring Sweaters each of its successors and assigns. and the U.S. Consumer Product Safety distributed in commerce posed a 22. The Commission issues the Order Commission (‘‘Commission’’) staff, and the strangulation hazard and presented a under the provisions of the CPSA, and Commission having jurisdiction over the substantial risk of injury to children under violation of the Order may subject Sears to subject matter and over Sears, and pursuant FHSA section 15(c)(l), 15 U.S.C. § 1274(c)(1). appropriate legal action. to the authority delegated in

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section 6(d) of the Interim Delegation of Product Safety Commission, 4330 East retailers of children’s upper outerwear. The Authority ordered by the Commission on West Highway, Bethesda, Maryland 208 letter urges them to make certain that all February 1, 2008, and it appearing that the 14–4408; telephone (301) 504–7587. children’s upper outerwear sold in the Settlement Agreement and the Order are in SUPPLEMENTARY INFORMATION: The text of United States complies with ASTM F1816– the public interest, it is 97. The letter states that the Staff considers ordered, that the Settlement Agreement be, the Agreement and Order appears below. children’s upper outerwear with drawstrings and hereby is, accepted; and it is further at the hood or neck area to be defective and ordered, that Sears shall pay a civil penalty August 5, 2008 to present a substantial risk of injury to in the amount of fifty thousand dollars Todd A. Stevenson young children under Federal Hazardous ($50,000.00) within twenty (20) calendar days of service of the Commission’s final Secretary. Substances Act (‘‘FHSA’’) section 15(c), 15 U.S.C. § 1274(c). The letter also notes the Order accepting the Agreement. The payment United States of America shall be made by check payable to the order CPSA’s section 15(b) reporting requirements. of the United States Treasury. Upon the Consumer Product Safety Commission 10. Siegfried informed the Commission failure of Sears to make the foregoing In the Matter of Siegfried & Parzifal, Inc. that there had been no incidents or injuries payment when due, interest on the unpaid CPSC Docket No. 08–C0017. from the Drawstring Sweatshirts. amount shall accrue and be paid by Sears at 11. Siegfried’s distribution in commerce of the federal legal rate of interest set forth at Settlement Agreement the Drawstring Sweatshirts did not meet the 28 U.S.C. § 1961(a) and (b). 1. In accordance with 16 CFR § 1118.20, Guidelines or ASTM F1816–97, failed to Provisionally accepted and provisional Siegfried & Parzifal, Inc. (‘‘Siegfried’’) and the comport with the Staffs May 2006 defect Order issued on the 4th day of August, 2008. staff (‘‘Staff’’) of the United States Consumer notice, and posed a strangulation hazard to Product Safety Commission (‘‘Commission’’) By Order of the Commission. children. enter into this Settlement Agreement Todd A. Stevenson 12. On February 12, 2008, the Commission (‘‘Agreement’’). The Agreement and the Secretary and Siegfried announced a recall of the incorporated attached Order (‘‘Order’’) settle U.S. Consumer Product Safety Commission Drawstring Sweatshirts, informing consumers the Staff’s allegations set forth below. [FR Doc. E8–18401 Filed 8–11–08; 8:45 am] that they should immediately remove the BILLING CODE 6355–01–M Parties drawstrings to eliminate the hazard. 2. The Commission is an independent 13. Siegfried had presumed and actual federal regulatory agency established knowledge that the Drawstring Sweatshirts CONSUMER PRODUCT SAFETY pursuant to, and responsible for the distributed in commerce posed a COMMISSION enforcement of, the Consumer Product Safety strangulation hazard and presented a Act, 15 U.S.C. 2051–2084 (‘‘CPSA’’). substantial risk of injury to children under (CPSC Docket No. 08–C0017) 3. Siegfried is a corporation organized and FHSA section 15(c)(1), 15 U.S.C. § 1274(c)(1). existing under the laws of California, with its Siegfried had obtained information that Siegfried & Parzifal, Inc., Provisional principal offices located in City of Industry, reasonably supported the conclusion that the Acceptance of a Settlement Agreement CA. At all times relevant hereto, Siegfried Drawstring Sweatshirts contained a defect and Order imported and sold apparel. that could create a substantial product hazard or that they created an unreasonable risk of AGENCY: Consumer Product Safety Staff Allegations serious injury or death. CPSA sections Commission 4. From June 19, 2007, to July 20, 2007, 15(b)(2) and (3), 15 U.S.C. § 2064(b)(2) and ACTION: Notice Siegfried imported and/or sold to retailers at least 5,120 sweatshirts with drawstrings (3), required Siegfried to immediately inform the Commission of the defect and risk. SUMMARY: It is the policy of the (‘‘Drawstring Sweatshirts’’) 14. Siegfried knowingly failed to Commission to publish settlements 5. Retailers sold the Drawstring Sweatshirts to consumers. immediately inform the Commission about which it provisionally accepts under the the Drawstring Sweatshirts as required by Consumer Product Safety Act in the 6. The Drawstring Sweatshirts are ‘‘consumer product[s],’’ and, at all times CPSA sections 15(b)(2) and (3), 15 U.S.C. Federal Register in accordance with the relevant hereto, Siegfried was a § 2064(b)(2) and (3), and as the term terms of 16 CFR § 1118.20(e). Published ‘‘manufacturer’’ of those consumer products, ‘‘knowingly’’ is defined in CPSA section below is a provisionally accepted which were ‘‘distributed in commerce,’’ as 20(d), 15 U.S.C. § 2069(d). This failure Settlement Agreement with Siegfried & those terms are defined in CPSA sections violated CPSA section 19(a)(4), 15 U.S.C. Parzifal, Inc., containing a civil penalty 3(a)(1), (4), (11), and (12), 15 U.S.C. § 2068(a)(4). Pursuant to CPSA section 20, 15 of $35,000.00. § 2052(a)(1), (4), (11), and (12). U.S.C. § 2069, this failure subjected Siegfried 7. In February 1996, the Staff issued the DATES: Any interested person may ask to civil penalties. Guidelines for Drawstrings on Children’s the Commission not to accept this Upper Outerwear (‘‘Guidelines’’) to help Siegfried Response agreement or otherwise comment on its prevent children from strangling or 15. Siegfried denies the Staffs allegations contents by filing a written request with entangling on drawstrings. The Guidelines above that Siegfried knowingly violated the the Office of the Secretary by (insert state that drawstrings can cause, and have CPSA. date that is 15 calendar days from caused, injuries and deaths when they catch publication date). on items such as playground equipment, bus Agreement of the Parties ADDRESSES: Persons wishing to doors, or cribs. In the Guidelines, the Staff 16. Under the CPSA, the Commission has comment on this Settlement Agreement recommends that there be no hood and neck jurisdiction over this matter and over drawstrings in children’s upper outerwear Siegfried. should send written comments to the sized 2T to 12. 17. The parties enter into the Agreement Comment 08-C0017, Office of the 8. In June 1997, ASTM adopted a voluntary Secretary, Consumer Product Safety standard, ASTM F1816–97, that incorporated for settlement purposes only. The Agreement Commission, 4330 East West Highway, the Guidelines. The Guidelines state that does not constitute an admission by Room 502, Bethesda, Maryland 20814 firms should be aware of the hazards and Siegfried, or a determination by the 4408. should be sure garments they sell conform to Commission, that Siegfried has knowingly the voluntary standard. violated the CPSA. FOR FURTHER INFORMATION CONTACT: 9. On May 19, 2006, the Commission 18. In settlement of the Staff’s allegations, Dennis C. Kacoyanis, Trial Attorney, posted on its website a letter from the Siegfried shall pay a civil penalty in the Legal Division, Office of Compliance Commission’s Director of the Office of amount of thirty-five thousand dollars and Field Operations, Consumer Compliance to manufacturers, importers, and ($35,000.00) within twenty (20) calendar

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days of service of the Commission’s final Dated: 7/10/2008. CONSUMER PRODUCT SAFETY Order accepting the Agreement. The payment By: Joseph Hwa, COMMISSION shall be by check payable to the order of the President, Siegfried & Parzifal, Inc., 18701 United States Treasury. ’ Arenth Avenue, City of Industry, CA 91748. [CPSC Docket No. 08–C0020] 19. Upon provisional acceptance of the Agreement, the Agreement shall be placed on Dated: 7/10/2008. Vacation Clothing Exchange, Inc., d/b/ the public record and published in the By: Mark Fang, Esquire, a Basix USA, Provisional Acceptance Federal Register in accordance with the 215 E. Daily Drive, Suite 9, Camarillo, CA of a Settlement Agreement and Order procedures set forth in 16 CFR § 1118.20(e). 93010, Attorney for Siegfried & Parzifal, In accordance with 16 CFR § 1118.20(f), if the Inc. AGENCY: Consumer Product Safety Commission does not receive any written request not to accept the Agreement within U.S. Consumer Product Safety Commission Commission. fifteen (15) calendar days, the Agreement Staff . ACTION: Notice. shall be deemed finally accepted on the J. Gibson Mullan, SUMMARY: It is the policy of the sixteenth (16th) calendar day after the date it Assistant Executive Director, Office of Commission to publish settlements is published in the Federal Register. Compliance and Field Operations. 20. Upon the Commission’s final which it provisionally accepts under the acceptance of the Agreement and issuance of Ronald G. Yelenik, Consumer Product Safety Act in the the final Order, Siegfried knowingly, Acting Director, Legal Division, Office of Federal Register in accordance with the voluntarily, and completely waives any Compliance and Field Operations. terms of 16 CFR 1118.20(e). Published rights it may have regarding the Staff’s Dated: 7/31/08. allegations to the following: (1) an below is a provisionally-accepted administrative or judicial hearing; (2) judicial By: Dennis C Kacoyaniss, Settlement Agreement with Vacation review or other challenge or contest of the Trial Attorney, Legal Division, Office of Clothing Exchange, Inc., d/b/a Basix validity of the Order or of the Commission’s Compliance and Field Operations. USA, containing a civil penalty of actions; (3) a determination by the United States of America $25,000.00. Commission of whether Siegfried failed to DATES: Any interested person may ask comply with the CPSA and its underlying Consumer Product Safety Commission regulations; (4) a statement of findings of fact the Commission not to accept this and conclusions of law; and (5) any claims In the Matter of Siegfried & Parzifal, Inc., agreement or otherwise comment on its under the Equal Access to Justice Act. CPSC Docket No. 08–C0017 contents by filing a written request with 21. The Commission may publicize the Order the Office of the Secretary by August 27, terms of the Agreement and the Order. 2008. 22. The Agreement and the Order shall Upon consideration of the Settlement apply to, and be binding upon, Siegfried and Agreement entered into between Siegfried & ADDRESSES: Persons wishing to each of its successors and assigns. Parzifal, Inc. (‘‘Siegfried’’) and the U.S. comment on this Settlement Agreement 23. The Commission issues the Order Consumer Product Safety Commission should send written comments to the under the provisions of the CPSA, and (‘‘Commission’’) staff, and the Commission Comment 08–C0020, Office of the violation of the Order may subject Siegfried having jurisdiction over the subject matter Secretary, Consumer Product Safety to appropriate legal action. and over Siegfried, and pursuant to the Commission, 4330 East-West Highway, 24. The Agreement may be used in authority delegated in section 6(d) of the Room 502, Bethesda, Maryland 20814– interpreting the Order. Understandings, 4408. agreements, representations, or Interim Delegation of Authority ordered by interpretations apart from those contained in the Commission on February 1, 2008, and it FOR FURTHER INFORMATION CONTACT: the Agreement and the Order may not be appearing that the Settlement Agreement and Dennis C. Kacoyanis, Trial Attorney, used to vary or contradict their terms. The the Order are in the public interest, it is Legal Division, Office of Compliance Agreement shall not be waived, amended, ordered, that the Settlement Agreement be, and Field Operations, Consumer modified, or otherwise altered without and hereby is, accepted; and it is further Product Safety Commission, 4330 East- written agreement thereto executed by the ordered, that Siegfried shall pay a civil West Highway, Bethesda, Maryland party against whom such waiver, penalty in the amount of thirty five thousand 20814–4408; telephone (301) 504–7587. amendment, modification, or alteration is dollars ($35,000.00) within twenty (20) SUPPLEMENTARY INFORMATION: The text of sought to be enforced. calendar days of service of the Commission’s 25. If any provision of the Agreement and the Agreement and Order appears final Order accepting the Agreement. The the Order is held to be illegal, invalid, or below. payment shall be made by check payable to unenforceable under present or future laws Dated: August 5, 2008. effective during the terms of the Agreement the order of the United States Treasury. Upon and the Order, such provision shall be fully the failure of Siegfried to make the foregoing Todd A. Stevenson, severable. The balance of the Agreement and payment when due, interest on the unpaid Secretary. amount shall accrue and be paid by Siegfried the Order shall remain in full force and United States of America effect, unless the Commission and Siegfried at the federal legal rate of interest set forth agree that severing the provision materially at 28 U.S.C. § 1961(a) and (b). Consumer Product Safety Commission affects the purpose of the Agreement and the Provisionally accepted and provisional In the Matter of Order. Order issued on the 4th day of August, 2008. Vacation Clothing Exchange, Inc. d/b/a 26. Pursuant to section 6(d) of the Interim Basix USA. By Order of the Commission Delegation of Authority ordered by the CPSC Docket No. 08–C0020. Commission on February 1, 2008, the Todd A. Stevenson, Commission delegated to the Assistant Secretary, U.S. Consumer Product Safety Settlement Agreement Executive Director for Compliance and Field Commission. 1. In accordance with 16 CFR 1118.20, Operations the authority to act, with the [FR Doc. E8–18399 Filed 8–11–08; 8:45 am] Vacation Clothing Exchange, Inc., d/b/a Basix concurrence of the General Counsel, for the USA (‘‘Vacation Clothing’’) and the staff Commission under 16 CFR § 1118.20 with BILLING CODE 6355–01–M (‘‘Staff’’) of the United States Consumer respect to Staff allegations that any person or Product Safety Commission (‘‘Commission’’) firm violated 15 U.S.C. § 2068, where the enter into this Settlement Agreement total amount of the settlement involves no (‘‘Agreement’’). The Agreement and the more than $100,000. incorporated attached Order (‘‘Order’’) settle Siegfried & Parzifal, Inc. the Staffs allegations set forth below.

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Parties Windbreakers, informing consumers that the public record and published in the 2. The Commission is an independent they should immediately remove the Federal Register in accordance with the federal regulatory agency established drawstrings to eliminate the hazard. procedures set forth in 16 CFR 1118.20(e). In pursuant to, and responsible for the 13. Vacation Clothing had presumed and accordance with 16 CFR 1118.20(f), if the enforcement of, the Consumer Product Safety actual knowledge that the Drawstring Commission does not receive any written Act, 15 U.S.C. 2051–2084 (‘‘CPSA’’). Sweatshirts and Windbreakers distributed in request not to accept the Agreement within 3. Vacation Clothing is a corporation commerce posed a strangulation hazard and fifteen (15) calendar days, the Agreement organized and existing under the laws of presented a substantial risk of injury to shall be deemed finally accepted on the Florida, with its principal offices located in children under FHSA section 15(c)(l), 15 sixteenth (16th) calendar day after the date it Lauderdale Lakes, FL. At all times relevant U.S.C. 1274(c)(1). Vacation Clothing had is published in the Federal Register. hereto, Vacation Clothing imported and sold obtained information that reasonably 20. Upon the Commission’s final apparel. supported the conclusion that the Drawstring acceptance of the Agreement and issuance of Sweatshirts and Windbreakers contained a the final Order, Vacation Clothing Staff Allegations defect that could create a substantial product knowingly, voluntarily, and completely 4. Between May 2003 and December 2006, hazard or that they created an unreasonable waives any rights it may have regarding the Vacation Clothing imported and/or sold to risk of serious injury or death. CPSA sections Staffs allegations to the following: (1) an retailers at least 22,420 children’s sweatshirts 15(b)(2) and (3), 15 U.S.C. 2064(b)(2) and (3), administrative or judicial hearing; (2) judicial and windbreakers with drawstrings in the required Vacation Clothing to immediately review or other challenge or contest of the hoods (‘‘Drawstring Sweatshirts and inform the Commission of the defect and validity of the Order or of the Commission’s Windbreakers’’). risk. actions; (3) a determination by the 5. Retailers sold the Drawstring Sweatshirts 14. Vacation Clothing knowingly failed to Commission of whether Vacation Clothing and Windbreakers to consumers. immediately inform the Commission about failed to comply with the CPSA and its 6. The Drawstring Sweatshirts and the Drawstring Sweatshirts and underlying regulations; (4) a statement of Windbreakers are ‘‘consumer product[s],’’ Windbreakers as required by CPSA sections findings of fact and conclusions of law; and and, at all times relevant hereto, Vacation 15(b)(2) and (3), 15 U.S.C. 2064(b)(2) and (3), (5) any claims under the Equal Access to Clothing was a ‘‘manufacturer’’ of those and as the term ‘‘knowingly’’ is defined in Justice Act. consumer products, which were ‘‘distributed CPSA section 20(d), 15 U.S.C. 2069(d). This 21. The Commission may publicize the in commerce,’’ as those terms are defined in failure violated CPSA section l9(a)(4), 15 terms of the Agreement and the Order. CPSA sections 3(a)(1), (4), (11), and (12), 15 U.S.C. 2068(a)(4). Pursuant to CPSA section 22. The Agreement and the Order shall U.S.C. 2052(a)(1), (4), (11), and (12). 20, 15 U.S.C. 2069, this failure subjected apply to, and be binding upon, Vacation 7. In February 1996, the Staff issued the Vacation Clothing to civil penalties. Clothing and each of its successors and Guidelines for Drawstrings on Children’s Vacation Clothing Response assigns. Upper Outerwear (‘‘Guidelines’’) to help 23. The Commission issues the Order prevent children from strangling or 15. Vacation Clothing denies the Staff’s under the provisions of the CPSA, and entangling on drawstrings. The Guidelines allegations above that Vacation Clothing violation of the Order may subject Vacation state that drawstrings can cause, and have knowingly violated the CPSA. Clothing to appropriate legal action. caused, injuries and deaths when they catch Agreement of the Parties 24. The Agreement may be used in on items such as playground equipment, bus interpreting the Order. Understandings, doors, or cribs. In the Guidelines, the Staff 16. Under the CPSA, the Commission has agreements, representations, or recommends that there be no hood and neck jurisdiction over this matter and over interpretations apart from those contained in drawstrings in children’s upper outerwear Vacation Clothing. the Agreement and the Order may not be sized 2T to 12. 17. The parties enter into the Agreement used to vary or contradict their terms. The 8. In June 1997, ASTM adopted a voluntary for settlement purposes only. The Agreement Agreement shall not be waived, amended, standard, ASTM F1816–97, that incorporated does not constitute an admission by Vacation modified, or otherwise altered without the Guidelines. The Guidelines state that Clothing, or a determination by the written agreement thereto executed by the firms should be aware of the hazards and Commission, that Vacation Clothing has party against whom such waiver, should be sure garments they sell conform to knowingly violated the CPSA. amendment, modification, or alteration is the voluntary standard. 18. In settlement of the Staff’s allegations, sought to be enforced. 9. On May 19, 2006, the Commission Vacation Clothing shall pay a civil penalty in 25. If any provision of the Agreement and posted on its Web site a letter from the the amount of twenty-five thousand dollars the Order is held to be illegal, invalid, or Commission’s Director of the Office of ($25,000.00) in five (5) installments as unenforceable under present or future laws Compliance to manufacturers, importers, and follows: The first installment of five- effective during the terms of the Agreement retailers of children’s upper outerwear. The thousand dollars ($5,000.00) shall be paid and the Order, such provision shall be fully letter urges them to make certain that all within twenty (20) calendar days of service severable. The balance of the Agreement and children’s upper outerwear sold in the of the Commission’s final Order accepting the Order shall remain in full force and United States complies with ASTM F1816– the Agreement; the second payment of five- effect, unless the Commission and Vacation 97. The letter states that the Staff considers thousand dollars ($5,000.00) shall be paid Clothing agree that severing the provision children’s upper outerwear with drawstrings within six (6) months of service of the materially affects the purpose of the at the hood or neck area to be defective and Commission’s final Order accepting the Agreement and the Order. to present a substantial risk of injury to Agreement; the third payment of five- 26. Pursuant to section 6(d) of the Interim young children under Federal Hazardous thousand dollars ($5,000.00) shall be paid Delegation of Authority ordered by the Substances Act (‘‘FHSA’’) section 15(c), 15 within twelve (12) months of service of the Commission on February 1, 2008, the U.S.C. 1274(c). The letter also notes the Commission’s final Order accepting the Commission delegated to the Assistant CPSA’s section 15(b) reporting requirements. Agreement; the fourth payment of five- Executive Director for Compliance and Field 10. The Commission was not informed of thousand dollars ($5,000.00) shall be paid Operations the authority to act, with the any incidents or injuries from the Drawstring within eighteen (18) months of service of the concurrence of the General Counsel, for the Sweatshirts and Windbreakers. Commission’s final Order accepting the Commission under 16 CFR 1118.20 with 11. Vacation Clothing’s distribution in Agreement; and the fifth payment of five- respect to Staff allegations that any person or commerce of the Drawstring Sweatshirts and thousand dollars ($5,000.00) shall be paid firm violated 15 U.S.C. 2068, where the total Windbreakers did not meet the Guidelines or within twenty-four (24) months of service of amount of the settlement involves no more ASTM F1816–97, failed to comport with the the Commission’s final Order accepting the than $100,000. Staff’s May 2006 defect notice, and posed a Agreement. Each payment shall be by check strangulation hazard to children. payable to the order of the United States Vacation Clothing Exchange, Inc. d/b/a Basix 12. On February 13, 2007, the Commission Treasury. USA and Vacation Clothing announced a recall of 19. Upon provisional acceptance of the Dated: 7/21/08 By: the Drawstring Sweatshirts and Agreement, the Agreement shall be placed on Benjamin Perelmutter,

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Vice President, Vacation Clothing Exchange, Clothing to make the foregoing payments Dated: August 5, 2008. Inc., d/b/a Basix USA. when due, interest on the unpaid amount Patricia Toppings, 2778 NW 31st Avenue. shall accrue and be paid by Vacation OSD Federal Register Liaison Officer, Lauderdale Lakes, FL 33311. Clothing at the federal legal rate of interest Department of Defense. Dated: 7/21/08 By: set forth at U.S.C. 1961(a) and (b). Brian Kopelowitz, Esquire, S700.30 The Kopelowitz Ostrow Law Firm, P.A. Provisionally accepted and provisional SYSTEM NAME: 200 SW 1st Avenue, 12th Floor Order issued on the 4th day of August 2008. Fort Lauderdale, FL 33301 By order of the commission: Operational Accounting Records for Attorney for Vacation Clothing Exchange, Civilian Employee-Based Expenditures Inc., d/b/a Basix USA. Todd A. Stevenson, (June 13, 2005, 70 FR 34105). U.S. Consumer Product Safety Commission Secretary, U.S. Consumer Product Safety Staff Commission. CHANGES: J. Gibson Mullan, [FR Doc. E8–18400 Filed 8–11–08; 8:45 am] * * * * * Assistant Executive Director, BILLING CODE 6355–01–M Office of Compliance and Field Operations. SYSTEM NAME: Ronald G. Yelenik, Delete entry and replace with Acting Director, ‘‘Enterprise Business System (EBS).’’ Legal Division, Office of Compliance and Field Operations. DEPARTMENT OF DEFENSE SYSTEM LOCATION: Dated: 7/31/08 By: Office of the Secretary Delete entry and replace with ‘‘Financial Compliance and Process Dennis C. Kacoyanis, Management (J–89), Headquarters, Trial Attorney, [Docket ID: DoD–2008–OS–0084] Legal Division, Defense Logistics Agency, 8725 John J. Kingman Road, Stop 6238, Fort Belvoir, Office of Compliance and Field Operations. Privacy Act of 1974; Systems of VA 22060–6221. United States of America Records EBS Processing Center (EPC), DISA/ DECC-Ogden, Building 981, 7879 Consumer Product Safety Commission AGENCY: Defense Logistics Agency, DoD. Wardleigh Road, Hill AFB, UT 84056– In the Matter of Vacation Clothing Exchange, Inc. d/b/a Basix USA. CPSC Docket No. ACTION: Notice to Amend a System of 5997’’. Records. 08–C0020 CATEGORIES OF INDIVIDUALS COVERED BY THE Order SYSTEM: SUMMARY: The Defense Logistics Agency Delete entry and replace with Upon consideration of the Settlement is amending a system of records notice Agreement entered into between Vacation ‘‘Defense Logistics Agency (DLA) Clothing Exchange, Inc., d/b/a Basix USA to its existing inventory of record civilian employees and civilian (‘‘Vacation Clothing’’) and the U.S. Consumer systems subject to the Privacy Act of employees of other DOD Components Product Safety Commission (‘‘Commission’’) 1974 (5 U.S.C. 552a), as amended. who receive accounting and financial staff, and the Commission having jurisdiction management support from DLA under over the subject matter and over Vacation DATES: This action will be effective Clothing, and pursuant to the authority without further notice on September 11, an administrative support agreement.’’ delegated in section 6(d) of the Interim 2008 unless comments are received that CATEGORIES OF RECORDS IN THE SYSTEM: Delegation of Authority ordered by the would result in a contrary Delete entry and replace with Commission on February 1, 2008, and it determination. appearing that the Settlement Agreement and ‘‘Individual’s name, Social Security the Order are in the public interest, it is ADDRESSES: Send comments to the Number (SSN), activity code, home Ordered, that the Settlement Agreement be, Privacy Act Officer, Headquarters, address, Country Code, Electronic Fund and hereby is, accepted; and it is Defense Logistics Agency, ATTN: DP, Transfer waiver, Financial Institution, Further ordered, that Vacation Clothing 8725 John J. Kingman Road, Stop 2533, Bank Routing Number, Bank Account shall pay a civil penalty in the amount of Number, Account Type, gross pay data twenty-five thousand dollars ($25,000.00) in Fort Belvoir, VA 22060–6221. five (5) installments as follows: The first (date paid, disbursing officer voucher FOR FURTHER INFORMATION CONTACT: Ms. payment of five-thousand dollars ($5,000.00) number, disbursing station symbol shall be paid within twenty (20) calendar Jody Sinkler at (703) 767–5045. number, pay period ending date, pay days of service of the Commission’s final SUPPLEMENTARY INFORMATION: The system code, grade, pay/straight rate, Order accepting the Agreement; the second Defense Logistics Agency notices for work schedule, temporary position payment of five-thousand dollars ($5,000.00) code, gross reconciliation code, job shall be paid within six (6) months of service systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, order number, hours extended, hours of the Commission’s final Order accepting paid, and earnings/employer have been published in the Federal the Agreement; the third payment of five- contributions amount), and thousand dollars ($5,000.00) shall be paid Register and are available from the reconciliation or error data (if within twelve (12) months of service of the address above. Commission’s final Order accepting the applicable).’’ Agreement; the fourth payment of five- The specific changes to the record * * * * * thousand dollars ($5,000.00) shall be paid system being amended are set forth within eighteen (18) months of service of the below followed by the notice, as PURPOSE(S): Commission’s final Order accepting the amended, published in its entirety. The Delete entry and replace with Agreement; and the fifth payment of five- proposed amendment is not within the ‘‘Records are used to initiate thousand dollars ($5,000.00) shall be paid purview of subsection (r) of the Privacy reimbursements to enable the Defense within twenty-four (24) months of service of the Commission’s final Order accepting the Act of 1974, (5 U.S.C. 552a), as Finance and Accounting Service (DFAS) Agreement. Each payment shall be made by amended, which requires the to distribute payments to DLA check payable to the order of the United submission of a new or altered system employees for certain miscellaneous States Treasury. Upon the failure Vacation report. out-of-pocket expenses (training,

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tuition, Permanent Change of Station, the end of the fiscal year and are PURPOSE(S): etc). Records are also used to identify maintained for 6 years and 3 months, Records are used to initiate employee-related costs associated with and then destroyed. reimbursements to enable the Defense reimbursable orders received by DLA Reconciliation or error records may Finance and Accounting Service (DFAS) and to enable accurate billing of those remain in the system no longer than 2 to distribute payments to DLA reimbursable orders. years. These reconciliations or error employees for certain miscellaneous Records are used to create a general records are kept by DFAS 6 years and out-of-pocket expenses (training, ledger file containing the accounts 3 months, and then destroyed. tuition, Permanent Change of Station, necessary to reflect DLA operational Ready to pay file disposition is etc). Records are also used to identify costs. Operations costs consist of pending (until the National Archives employee-related costs associated with operating accounts, liability accounts, and Records Administration has reimbursable orders received by DLA budgetary accounts, and statistical approved the retention and disposal of and to enable accurate billing of those accounts, maintained for the purposes ready to pay files, treated them as reimbursable orders. of establishing, in summary form, the permanent.’’ status of the DLA accounts and to Records are used to create a general * * * * * provide an audit trail to verify accuracy ledger file containing the accounts necessary to reflect DLA operational of reports. S700.30 Records are used by financial costs. Operations costs consist of management offices to validate and SYSTEM NAME: operating accounts, liability accounts, accurately record employee-labor Enterprise Business System (EBS). budgetary accounts, and statistical operational expenses. accounts, maintained for the purposes Records are used to determine DLA SYSTEM LOCATION: of establishing, in summary form, the civilian payroll budgetary requirements. Financial Compliance and Process status of the DLA accounts and to Records are used by internal auditors Management (J–89), Headquarters, provide an audit trail to verify accuracy to conduct audits or investigations into Defense Logistics Agency, 8725 John J. of reports. the DLA accounting and financial Kingman Road, Stop 6238, Fort Belvoir, Records are used by financial management process. VA 22060–6221. management offices to validate and Records are used by the DOD EBS Processing Center (EPC), DISA/ accurately record employee-labor Components who receive accounting DECC-Ogden, Building 981, 7879 operational expenses. and financial management support from Wardleigh Road, Hill AFB, UT 84056– Records are used to determine DLA DLA under an administrative support 5997. civilian payroll budgetary requirements. agreement for accounting and financial Records are used by internal auditors management purposes. CATEGORIES OF INDIVIDUALS COVERED BY THE to conduct audits or investigations into Records devoid of personal identifiers SYSTEM: the DLA accounting and financial are used for extraction or compilation of Defense Logistics Agency (DLA) management process. data and reports for management studies civilian employees and civilian and statistical analyses for use Records are used by the DOD employees of other DOD Components Components who receive accounting internally or externally as required by who receive accounting and financial DOD or other government agencies. and financial management support from management support from DLA under DLA under an administrative support Statistical data, with all personal an administrative support agreement. identifiers removed, may be used by agreement for accounting and financial management for program evaluation, CATEGORIES OF RECORDS IN THE SYSTEM: management purposes. review, or oversight purposes. Individual’s name, Social Security Records devoid of personal identifiers * * * * * Number (SSN), activity code, home are used for extraction or compilation of address, Country Code, Electronic Fund data and reports for management studies RETRIEVABILITY: Transfer waiver, Financial Institution, and statistical analyses for use Delete entry and replace with Bank Routing Number, Bank Account internally or externally as required by ‘‘Records are retrieved by individual’s Number, Account Type, gross pay data DOD or other government agencies. name, Employee Number, and Social (date paid, disbursing officer voucher Statistical data, with all personal Security Number.’’ number, disbursing station symbol identifiers removed, may be used by SAFEGUARDS: number, pay period ending date, pay management for program evaluation, Delete entry and replace with system code, grade, pay/straight rate, review, or oversight purposes. work schedule, temporary position ‘‘Physical entry is restricted by the use ROUTINE USES OF RECORDS MAINTAINED IN THE of locks, guards, and administrative code, gross reconciliation code, job SYSTEM, INCLUDING CATEGORIES OF USERS AND procedures. Access to personal order number, hours extended, hours THE PURPOSES OF SUCH USES: information is restricted by access paid, and earnings/employer contributions amount), and In addition to those disclosures profiles to those who require the records generally permitted under 5 U.S.C. in the performance of their official reconciliation or error data (if applicable). 552a(b) of the Privacy Act, these records duties. All Personally Identifiable or information contained therein may Information is encrypted with AUTHORITY FOR MAINTENANCE OF THE SYSTEM: specifically be disclosed outside the accessibility limited to permitted access 10 U.S.C. 136, Under Secretary of DOD as a routine use pursuant to 5 profiles. Access to personal information U.S.C. 552a(b)(3) as follows: is further restricted by the use of Defense for Personnel and Readiness; 31 To the Office of Management and passwords that are changed U.S.C. 3512, Executive agency Budget for the purposes of conducting periodically.’’ accounting and other financial management reports and plans, as reviews, audits, or inspections of agency RETENTION AND DISPOSAL: amended by Pub.L. 104–208, Federal practices. Delete entry and replace with Financial Management Improvement The DOD ‘‘Blanket Routine Uses’’ ‘‘General ledger postings are cutoff at Act of 1996; and E.O. 9397 (SSN). apply to this system of records.

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POLICIES AND PRACTICES FOR STORING, written inquiries to the Privacy Act The specific changes to the record RETRIEVING, ACCESSING, RETAINING, AND Office, Headquarters Defense Logistics system being amended are set forth DISPOSING OF RECORDS IN THE SYSTEM: Agency, ATTN: DGA, 8725 John J. below followed by the notice, as STORAGE: Kingman Road, Suite 1644, Fort Belvoir, amended, published in its entirety. The Records may be stored on both paper VA 22060–6221. proposed amendment is not within the and electronic media. Individuals should provide their full purview of subsection (r) of the Privacy name, Social Security Number (SSN), Act of 1974, (5 U.S.C. 552a), as RETRIEVABILITY: current address, telephone number, and amended, which requires the Records are retrieved by individual’s office or organization where currently submission of a new or altered system name, Employee number, and Social assigned, if applicable. report. Security Number (SSN). CONTESTING RECORD PROCEDURES: Dated: August 1, 2008. SAFEGUARDS: The DLA rules for accessing records, Patricia L. Toppings, Physical entry is restricted by the use for contesting contents and appealing OSD Federal Register Liaison Officer, of locks, guards, and administrative initial agency determinations are Department of Defense. procedures. Access to personal contained in 32 CFR part 323, or may K890.11 information is restricted by access be obtained from the Privacy Act Office, profiles to those who require the records Headquarters Defense Logistics Agency, SYSTEM NAME: in the performance of their official ATTN: DGA, 8725 John J. Kingman Manage to Pay (M2P) Files (June 12, duties. All Personally Identifiable Road, Suite 1644, Fort Belvoir, VA 2008, 73 FR 33412). Information is encrypted with 22060–6221. accessibility limited to permitted access CHANGES: RECORD SOURCE CATEGORIES: profiles. Access to personal information * * * * * is further restricted by the use of Existing DLA and DFAS databases. passwords that are changed EXEMPTIONS CLAIMED FOR THE SYSTEM: CATEGORIES OF RECORDS IN THE SYSTEM: periodically. None. Delete entry and replace with ‘‘Individual’s name, Grade, Pay cost, RETENTION AND DISPOSAL: [FR Doc. E8–18595 Filed 8–11–08; 8:45 am] Location code (Org), Program element General ledger postings are cut off at BILLING CODE 5001–06–P code (PE), Object class code (EEIC), the end of the fiscal year and are Gross reconciliation code (GRC), Hours, maintained for 6 years and 3 months, Document number, and Emergency or and then destroyed. DEPARTMENT OF DEFENSE Special Pay Code (ESP).’’ Reconciliation or error records may remain in the system no longer than 2 Office of the Secretary * * * * * years. These reconciliations or error [Docket ID: DoD–2008–OS–0083] RETENTION AND DISPOSAL: records are kept by the DFAS 6 years and 3 months, and are then destroyed. Privacy Act of 1974; System of Delete entry and replace with Ready to pay file disposition is Records ‘‘Records are continuously updated. pending (until the National Archives Obsolete computer records are erased or AGENCY: and Records Administration has Defense Information Systems overwritten at the end of two years.’’ approved the retention and disposal of Agency, DoD. * * * * * ready to pay files, treated them as ACTION: Notice To Amend a System of K890.11 permanent). Records. SYSTEM NAME SYSTEM MANAGER(S) AND ADDRESS: SUMMARY: Defense Information Systems : Staff Director, Financial Compliance Agency proposes to amend a system of Manage to Pay (M2P) Files. and Process Management (J–89), records notice in its existing inventory SYSTEM LOCATION: Headquarters, Defense Logistics Agency, of records systems subject to the Privacy 8725 John J. Kingman Road, Stop 6238, Act of 1974, (5 U.S.C. 552a), as Defense Information Systems Agency Fort Belvoir, VA 22060–6221. amended. (DISA), ATTN: CFE7, P.O. Box 4502, DATES: This proposed action will be Arlington, VA 22204–4502. NOTIFICATION PROCEDURE: effective without further notice on Individuals seeking to determine CATEGORIES OF INDIVIDUALS COVERED BY THE September 11, 2008 unless comments SYSTEM: whether this system of records contains are received which result in a contrary DISA civilian employees. information about themselves should determination. address written inquiries to the Privacy ADDRESSES: Send comments to the CATEGORIES OF RECORDS IN THE SYSTEM: Act Office, Headquarters Defense Defense Information Systems Agency, Logistics Agency, ATTN: DGA, 8725 Individual’s name, Grade, Pay cost, 5600 Columbia Pike, Room 933-I, Falls Location code (Org), Program element John J. Kingman Road, Suite 1644, Fort Church, VA 22041–2705. Belvoir, VA 22060–6221. code (PE), Object class code (EEIC), FOR FURTHER INFORMATION CONTACT: Individuals should provide their full Ms. Gross reconciliation code (GRC), Hours, name, Social Security Number (SSN), Jeanette M. Weathers-Jenkins at (703) Document number, and Emergency or current address, telephone number, and 681–2103. Special Pay Code (ESP). office or organization where currently SUPPLEMENTARY INFORMATION: The AUTHORITY FOR MAINTENANCE OF THE SYSTEM: assigned, if applicable. Defense Information Systems Agency systems of records notices subject to the 5 U.S.C. 301, Departmental RECORD ACCESS PROCEDURES: Privacy Act of 1974, (5 U.S.C. 552a), as Regulations; 10 U.S.C. 113, Secretary of Individuals seeking access to amended, have been published in the Defense; DoD Directive 5105.19, Defense information about themselves contained Federal Register and are available from Information Systems Agency (DISA); in this system of records should address the address above. and E.O. 9397 (SSN).

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PURPOSE(S): RECORDS ACCESS PROCEDURE: amended, have been published in the To assist DISA officials and Individuals seeking access to Federal Register and are available from employees in the management, information about themselves contained the address above. supervision, and administration of the in this system of records should address The Department of Army proposes to decentralized payroll system. written inquires to System Manger, delete a system of records notice from CFE7, Defense Information Systems its inventory of record systems subject ROUTINE USES OF RECORDS MAINTAINED IN THE to the Privacy Act of 1974 (5 U.S.C. SYSTEM, INCLUDING CATEGORIES OF USERS AND Agency, P.O. Box 4520, Arlington, VA THE PURPOSES OF SUCH USES: 22204–4502. 552a), as amended. The proposed In addition to those disclosures The individual should refer to the deletion is not within the purview of generally permitted under 5 U.S.C. office where he/she is/was assigned or subsection (r) of the Privacy Act of 1974 552a(b) of the Privacy Act, these records affiliated and include address and (5 U.S.C. 552a), as amended, which or information contained therein may telephone number applicable to the requires the submission of new or specifically be disclosed outside the period during which the record was altered systems reports. DoD as a routine use pursuant to 5 maintained. Social Security Number Dated: August 1, 2008. U.S.C. 552a(b)(3) as follows: (SSN) will be used for positive Patricia L. Toppings, The ‘‘Blanket Routine Uses’’ set forth identification. OSD Federal Register Liaison Officer, at the beginning of the DISA’s CONTESTING RECORD PROCEDURES: Department of Defense. compilation of systems of records notices apply to this system. DISA’s rules for accessing records, for A0037–1 DAPE contesting contents and appealing POLICIES AND PRACTICES FOR STORING, initial agency determinations are SYSTEM NAME: RETRIEVING, ACCESSING, RETAINING, AND published in DISA Instruction 210–225– Resource Management and Cost DISPOSING OF RECORDS IN THE SYSTEM: 2 at 32 CFR part 316 or may be obtained Accounting Files (February 22, 1993, 58 STORAGE: from the system manager. FR 10002). Electronic media. RECORD SOURCE CATEGORIES: REASON: RETRIEVABILITY: Employee, DISA Accounting system, These records are now covered under Individual’s name and/or organization DISA payroll database records. notice T7905, Labor Cost and Reporting and program element code. System (August 16, 2007, 72 FR 46040). EXEMPTIONS CLAIMED FOR THE SYSTEM: [FR Doc. E8–18588 Filed 8–11–08; 8:45 am] SAFEGUARDS: None. Guards secure buildings during non- BILLING CODE 5001–06–P duty hours. Management personnel, [FR Doc. E8–18596 Filed 8–11–08; 8:45 am] who are responsible for maintaining the BILLING CODE 5001–06–P DEPARTMENT OF DEFENSE confidentiality of the records, control access to the records. Use of the DEPARTMENT OF DEFENSE Department of the Army information is restricted to those who [Docket ID: USA–2008–0051] require the records in the performance Department of the Army of their official duties and with a need- Privacy Act of 1974; System of to-know. Access to personnel [Docket ID: USA–2008–0052] Records information is further restricted by the Privacy Act of 1974; System of use Common Access Card (CAC) Records AGENCY: Department of the Army, DoD. authorization. ACTION: Notice to Add a System of AGENCY: Department of the Army, DoD. RETENTION AND DISPOSAL: Records. Records are continuously updated. ACTION: Notice to Delete a System of Records. SUMMARY: The Department of the Army Obsolete computer records are erased or is proposing to add a system of records overwritten at the end of two years. SUMMARY: The Department of the Army to its existing inventory of records SYSTEM MANAGER(S) AND ADDRESS: is deleting a system of records in its systems subject to the Privacy Act of System manager, CFE7, Defense existing inventory of record systems 1974, (5 U.S.C. 552a), as amended. Information Systems Agency, P.O. Box subject to the Privacy Act of 1974, (5 DATES: The proposed action will be 4520, Arlington, VA 22204–4502. U.S.C. 552a), as amended. effective on September 11, 2008 unless DATES: This proposed action will be comments are received that would NOTIFICATION PROCEDURE: effective without further notice on result in a contrary determination. Individuals seeking to determine September 11, 2008 unless comments ADDRESSES: Department of the Army, whether information about themselves are received which result in a contrary Freedom of Information/Privacy is contained in this system of records determination. Division, U.S. Army Records should address written inquire to ADDRESSES: Send comments to the Management and Declassification System Manger, CFE7, Defense Department of the Army, Records Agency, 7701 Telegraph Road, Casey Information Systems Agency, P.O. Box Management and Declassification Building, Suite 144, Alexandria, VA 4520, Arlington, VA 22204–4502. The individual should refer to the Agency, Privacy Division, 7701 22325–3905. office where he/she is/was assigned or Telegraph Road, Alexandria, VA 22315. FOR FURTHER INFORMATION CONTACT: Ms. affiliated. Include address and FOR FURTHER INFORMATION CONTACT: Ms. Vicki Short at (703) 428–6508. telephone number applicable to the Vicki Short at (703) 428–6508. SUPPLEMENTARY INFORMATION: The period during which the record was SUPPLEMENTARY INFORMATION: The Department of the Army systems of maintained. Social Security Number Department of the Army systems of records notices subject to the Privacy (SSN) will be used for positive records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as identification. Act of 1974, (5 U.S.C. 552a), as amended, have been published in the

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Federal Register and are available from Policy; Army Regulation 215–4, students. Student transcript records are the address above. Nonappropriated Fund Contracting; kept active for 10 years. The proposed system report, as Army Regulation, 608–10 Child required by 5 U.S.C. 552a(r) of the Development Services; and E.O. 9397 SYSTEM MANAGERS(S) AND ADDRESS: Privacy Act of 1974, as amended, was (SSN). FMWRC, Family and Morale Welfare submitted on July 28, 2008, to the House Recreation Center Workforce Committee on Oversight and PURPOSE(S): Development, Morale Welfare Government Reform, the Senate To provide central registration, course Recreation (MWR) Academy, 5285 Committee on Homeland Security and enrollment, web-based learning, a career Shawnee Road, Suite 200, Alexandria, Governmental Affairs, and the Office of management tool, and a range of VA 22312–2328. performance support tools. It provides Management and Budget (OMB) NOTIFICATION PROCEDURES: pursuant to paragraph 4c of Appendix I anywhere, anytime training to to OMB Circular No. A–130, ‘Federal employees worldwide. Individuals seeking to determine whether information about themselves Agency Responsibilities for Maintaining ROUTINE USES OF RECORDS MAINTAINED IN THE Records About Individuals’, dated is contained in this system should SYSTEM, INCLUDING CATEGORIES OF USERS AND address written inquiries to the Morale February 8, 1996 (February 20, 1996, 61 THE PURPOSES OF SUCH USES: FR 6427). Welfare Recreation (MWR) Academy at In addition to those disclosures 5285 Shawnee Road, Suite 200, Dated: August 1, 2008. generally permitted under 5 U.S.C. Alexandria, VA 22312–2328. Patricia L. Toppings, 552a(b) of the Privacy Act, these records Individuals must provide name, rank, OSD Federal Register Liaison Officer, or information contained therein may Social Security Number (SSN), proof of Department of Defense. specifically be disclosed outside the identification, and any other pertinent DoD as a routine use pursuant to 5 information necessary. A0215c FMWRC U.S.C. 552a(b)(3) as follows: RECORD ACCESS PROCEDURES: SYSTEM NAME: To Federal, state, and local agencies Learning Management System (MWR– and oversight entities to track, manage, Individuals seeking access to LMS). and report on mandatory training information about themselves contained requirements and certifications. in this system should address written SYSTEM LOCATION: To public and private sector inquiries to the Morale Welfare Cogent Communications, 510 educational, training, and conferencing Recreation (MWR) Academy at 5285 Huntmar Park Dr, Herndon, VA 20170– entities for participant enrollment, Shawnee Road, Suite 200, Alexandria, 5100. tracking, evaluation, and payment VA 22312–2328. reconciliation purposes. Individuals must provide name, rank, CATEGORIES OF INDIVIDUALS COVERED BY THE To Federal agencies for screening and Social Security Number (SSN), proof of SYSTEM: selecting candidates for training or identification, and any other pertinent Department of Army employees and developmental programs sponsored by information necessary. contractor personnel receiving training the agency. funded or sponsored by the Army. The ‘‘Blanket Routine Uses’’ set forth CONTESTING RECORD PROCEDURES: Department of Defense military at the beginning of the Army’s The Army’s rules for accessing personnel employees and contractor compilation of systems of records records, and for contesting contents and personnel receiving training funded or notices also apply to this system. appealing initial agency determinations sponsored by the Army. Coast Guard are contained in Army Regulation 340– and non-appropriated fund personnel POLICIES AND PRACTICES FOR STORING, 21; 32 CFR part 505; or may be obtained may be included in the system. RETRIEVING, ACCESSING, RETAINING, AND from the system manager. DISPOSING OF RECORDS IN THE SYSTEM: CATEGORIES OF RECORDS IN THE SYSTEM: RECORD SOURCE CATEGORIES STORAGE: : Name; Social Security Number (SSN); Paper records in file folders and Student input, classroom instructors, date of birth, addresses; occupational electronic storage media. system administrators/instructors. series, grade, and supervisory status; EXEMPTIONS CLAIMED FOR THE SYSTEM: registration and training data, including RETRIEVABILITY: application or nomination documents, Automated records may be retrieved None. pre- and post-test results, student by Social Security Number, name, logon [FR Doc. E8–18589 Filed 8–11–08; 8:45 am] progress data, start and completion identification, password, or by a BILLING CODE 5001–06–P dates, and course descriptions. combination of these data elements. AUTHORITY FOR MAINTENANCE OF THE SYSTEM Manual records are retrieved by employee last name or Social Security. DEPARTMENT OF DEFENSE 10 U.S.C. 3013, Secretary of the Army; 26 U.S.C. 6041, Information at Source; SAFEGUARDS: Department of the Army DoD Directive 1015.2, Military Morale, Data is encrypted and password [Docket ID: USA–2008–0054] Welfare and Recreation (MWR); The protected. The system is only accessible Government Employees Training Action to registered users by access through Privacy Act of 1974; System of of 1958 (U.S. Code, Title 5, Section 4101 login and password that is activated Records to 4118); DoD Instruction 1015.10, upon registration. Registrants must click Program for Military Morale, Welfare the activation e-mail in order to activate AGENCY: Department of the Army, DoD. and Recreation (MWR); Army their login. ACTION: Notice to Amend a System of Regulation 215–1, Morale, Welfare and Records. Recreations Activities and Non- RETENTION AND DISPOSAL: appropriated Fund Instrumentalities; Transcript and training records on SUMMARY: The Department of the Army Army Regulation 215–3, individual users are kept active to is amending a system of records notice Nonappropriated Fund Personnel provide official transcript records to in its existing inventory of record

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systems subject to the Privacy Act of SAFEGUARDS: copyright licensing and assignments; 1974, (5 U.S.C. 552a), as amended. Change the word therefor to and copyright assistance rendered. DATES: ‘‘therefore’’. This proposed action will be ROUTINE USES OF RECORDS MAINTAINED IN THE effective without further notice on * * * * * SYSTEM, INCLUDING CATEGORIES OF USERS AND September 11, 2008 unless comments THE PURPOSES OF SUCH USES: A0027–60a DAJA are received which result in a contrary In addition to those disclosures determination. SYSTEM NAME: generally permitted under 5 U.S.C. ADDRESSES: Department of the Army, Patent, Copyright, Trademark, and 552a(b) of the Privacy Act, these records Freedom of Information/Privacy Proprietary Data Files. or information contained therein may Division, U.S. Army Records specifically be disclosed outside the Management and Declassification SYSTEM LOCATION: DoD as a routine use pursuant to 5 Agency, 7701 Telegraph Road, Casey Primary location: U.S. Army Legal U.S.C. 552a(b)(3) as follows: Building, Suite 144, Alexandria, VA Services Agency, JALS–IP, 901 North The U.S. Patent and Trademark 22325–3905. Stuart Street, Arlington, VA 22203– Office, Department of Commerce, and/or FOR FURTHER INFORMATION CONTACT: Ms. 1837. to the Copyright Office, Library of Vicki Short at (703) 428–6508. Secondary location: Office of the Staff Congress. SUPPLEMENTARY INFORMATION: The Judge Advocate at major Army In the event of legal proceedings and Department of the Army systems of commands, field operating agencies, litigation, information may be disclosed records notices subject to the Privacy and installations. Official mailing to the Civil Division, Department of Act of 1974, (5 U.S.C. 552a), as addresses are published as an appendix Justice. amended, have been published in the to the Army’s compilation of systems of For foreign patent filings records are Federal Register and are available from records notices. presented to the Director of Patent Administration, Department of National the address above. CATEGORIES OF INDIVIDUALS COVERED BY THE Defense in Ottawa, Ontario, Canada. The specific changes to the record SYSTEM: system being amended are set forth Parties to a licensing arrangement Individuals who have submitted have access to the specific files below followed by the notice, as inventions to the Government; inventors amended, published in its entirety. The involved. with patents or applications for patents Concerned contractors and/or proposed amendments are not within procured on behalf of the Department of the purview of subsection (r) of the Government agencies have access in the Army or in which the government order to conduct patent investigations Privacy Act of 1974, (5 U.S.C. 552a), as has an interest; authors of copyrightable amended, which requires the and evaluations. or copyrighted material in which the Information from this system of submission of a new or altered system government has an interest; and records may be disclosed to law report. government employees to whom students participating in a volunteer Dated: August 1, 2008. copyright assistance has been rendered. legal support program approved by the Patricia L. Toppings, CATEGORIES OF RECORDS IN THE SYSTEM: Judge Advocate General of the Army. OSD Federal Register Liaison Officer, The ‘‘Blanket Routine Uses’’ set forth Documents relating to; disposition of Department of Defense. at the beginning of the Army’s rights in Government employees’ compilation of systems of records A0027–60a DAJA inventions; foreign patent filings; notices also apply to this system. licensing of government-owned patents, SYSTEM NAME: copyrights, and service marks; POLICIES AND PRACTICES FOR STORING, Patent, Copyright, Trademark, and government interest in or under patents, RETRIEVING, ACCESSING, RETAINING, AND Proprietary Data Files (February 22, applications for patent, and copyrights DISPOSING OF RECORDS IN THE SYSTEM: 1993, 58 FR 10002). procured on behalf of the Department of STORAGE: CHANGES: the Army; and invention disclosures Paper records in file folders and including drawings, patentability search electronic storage media. * * * * * reports, evaluation reports, applications, SYSTEM LOCATION: amendments, petitions, appeals, RETRIEVABILITY: Delete entry and replace with ‘‘U.S. interferences, licenses, assignments, By individual’s surname. other instruments, and relevant Army Legal Services Agency, JALS–IP, SAFEGUARDS: 901 North Stuart Street, Arlington, VA correspondence. Records are maintained in buildings 22203–1837.’’ AUTHORITY FOR MAINTENANCE OF THE SYSTEM: protected by secured guards, and are * * * * * 10 U.S.C. 3013, Secretary of the Army; accessible only to authorized persons AUTHORITY FOR MAINTENANCE OF THE SYSTEM: 5 U.S.C. 301, Departmental Regulations, having need therefore in the and Army Regulation 27–60, Intellectual performance of official duties. Delete entry and replace with ‘‘10 Property. U.S.C. 3013, Secretary of the Army; 5 RETENTION AND DISPOSAL: U.S.C. 301, Departmental Regulations, PURPOSE(S): At the primary location: records and Army Regulation 27–60, Intellectual To determine the rights in pertaining to patent matters are retained Property.’’ government employee inventions, and for 20 to 25 years depending on the * * * * * to maintain evidence and record of specific case; those concerning documents used in filing for foreign copyright matters are retained either for STORAGE: patents; invention disclosures submitted 56 years or an expiration of copyright Delete entry and replace with ‘‘Paper to the Department of the Army; patents not renewed, after which they are records in file folders and electronic and applications for patent procured on destroyed by shredding. storage media.’’ behalf of the Army or in which the Records at the secondary locations are * * * * * Army has an interest; patent and destroyed after 2 years.

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SYSTEM MANAGER(S) AND ADDRESS: in its existing inventory of record address written inquiries to the United The Judge Advocate General, systems subject to the Privacy Act of States Army Intelligence and Security Headquarters, Department of the Army, 1974, (5 U.S.C. 552a), as amended. Command, Freedom of Information/ Washington, DC 20310–2210; senior DATES: This proposed action will be Privacy Office, 4552 Pike Road, Fort patent attorney at each secondary effective without further notice on Meade, MD 20755–5995. location. September 11, 2008 unless comments Individuals must furnish their full name, any alias, Social Security Number NOTIFICATION PROCEDURE: are received which result in a contrary determination. (SSN), date and place of birth, current Individuals seeking to determine address, telephone number, and a ADDRESSES: Department of the Army, whether information about themselves notarized signature.’’ is contained in this system should Freedom of Information/ Privacy address written inquiries to the Judge Division, U.S. Army Records RECORD ACCESS PROCEDURES: Advocate General, Headquarters, Management and Declassification Delete entry and replace with Department of the Army, Washington, Agency, 7701 Telegraph Road, Casey ‘‘Individuals seeking access to DC 20310–2210. Building, Suite 144, Alexandria, VA information about themselves contained Individuals should provide full name, 22325–3905. in this system should address written current address and telephone number, FOR FURTHER INFORMATION CONTACT: Ms. inquiries to the United States Army the case number or other identifying Vicki Short at (703) 428–6508. Intelligence and Security Command, information on correspondence SUPPLEMENTARY INFORMATION: The Freedom of Information/Privacy Office, emanating from the Army. Department of the Army systems of 4552 Pike Road, Fort Meade, MD records notices subject to the Privacy 20755–5995. RECORD ACCESS PROCEDURES: Act of 1974, (5 U.S.C. 552a), as Individuals must furnish their full Individuals seeking access to amended, have been published in the name, any alias, Social Security Number information about themselves contained Federal Register and are available from (SSN), date and place of birth, current in this system should address written the address above. address, telephone number, and a inquiries to the Judge Advocate General, The specific changes to the record notarized signature.’’ Headquarters, Department of the Army, system being amended are set forth CONTESTING RECORD PROCEDURES: Washington, DC 20310–2210. below followed by the notice, as Individuals should provide full name, amended, published in its entirety. The Delete and replace entry with ‘‘The current address and telephone number, proposed amendments are not within Army’s rules for accessing records, and the case number or other identifying the purview of subsection (r) of the for contesting contents and appealing information on correspondence Privacy Act of 1974, (5 U.S.C. 552a), as initial agency determinations are emanating from the Army. amended, which requires the contained in Army Regulation 340–21; 32 CFR part 505; or may be obtained CONTESTING RECORD PROCEDURES: submission of a new or altered system from the system manager.’’ The Army’s rules for accessing report. * * * * * records, and for contesting contents and Dated: August 1, 2008. appealing initial agency determinations Patricia L. Toppings, A0350–1 DAMI are contained in Army Regulation 340– OSD Federal Register Liaison Officer, 21; 32 CFR part 505; or may be obtained Department of Defense. SYSTEM NAME: from the system manager. INSCOM, Personal Qualification and A0350–1 DAMI Training Profile. RECORD SOURCE CATEGORIES: From the individual, Army records, SYSTEM NAME: SYSTEM LOCATION: the government agency interested in the INSCOM, Personal Qualification and United States Army Intelligence and invention or copyright, research Training Profile (February 22, 1993, 58 Security Command, Fort Belvoir, VA material in libraries, the Patent and FR 10002). 22060–5370. Trademark Office, and/or the Copyright CHANGES: Office. CATEGORIES OF INDIVIDUALS COVERED BY THE * * * * * SYSTEM: EXEMPTIONS CLAIMED FOR THE SYSTEM: All Army military personnel assigned AUTHORITY FOR MAINTENANCE OF THE SYSTEM: None. to Headquarters, United States Army Delete entry and replace with ‘‘10 [FR Doc. E8–18590 Filed 8–11–08; 8:45 am] Intelligence and Security Command and U.S.C. 3013, Secretary of the Army; its attached activities. BILLING CODE 5001–06–P Army Regulation 350–1, Army Training and Leadership Development; and E.O. CATEGORIES OF RECORDS IN THE SYSTEM: 9397 (SSN).’’ File contains individual’s name, DEPARTMENT OF DEFENSE * * * * * Social Security Number, pay grade, Department of the Army primary military occupational specialty STORAGE: (PMOS)/Specialty skill identifier (SSI), [Docket ID: USA–2008–0053] Delete entry and replace with ‘‘Paper date of last evaluation report, sex, date records in file folders and on electronic of birth, organization/unit processing Privacy Act of 1974; System of storage media.’’ code, duty section, height, weight, Records * * * * * weight control program status, physical AGENCY: Department of the Army, DoD. profile factors (PULHES), date of last NOTIFICATION PROCEDURE: ACTION: Notice to Amend a System of physical examination, examination, Records. Delete entry and replace with profile status, expiration date of ‘‘Individuals seeking to determine temporary profile, over 40 medical SUMMARY: The Department of the Army whether information about themselves clearance status, date last Human is amending a system of records notice is contained in this system should Immunodeficiency Virus (HIV) test, date

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last Army physical fitness test (APFT), who have a need for the information in official health records and local training APFT results, APFT scores, date last the performance of their official duties. records during in-processing. Data for skill qualification test (SQT), SQT score, The computerized records system is updates to records in the system are PLDC attendance, CAS3 attendance, accessed and updated by the custodian obtained from the individual and from date last weapons qualification, of the records system and by a limited source documents utilized to update the weapons qualification status, caliber of number of other personnel responsible individual’s official records. weapon in which qualified, date last for servicing the records in the subversion and espionage directed performance of their official duties. EXEMPTIONS CLAIMED FOR THE SYSTEM: against defense in which qualified, date Access to the computer file requires None. last subversion and espionage directed utilization of a password. Once in the against defense activities (SAEDA) system, access is restricted to only the [FR Doc. E8–18591 Filed 8–11–08; 8:45 am] training, date of last operations security user’s applicable portions of the system. BILLING CODE 5001–06–P training, and similar personnel, medical One unit cannot access another unit’s and training related data pertaining to records. All hard copy products bear DEPARTMENT OF DEFENSE assignments. Privacy Act labels.

AUTHORITY FOR MAINTENANCE OF THE SYSTEM: RETENTION AND DISPOSAL: Department of the Army 10 U.S.C. 3013, Secretary of the Army; All data pertaining to an individual is Army Regulation 350–1, Army Training deleted from the computer file during [Docket ID: USA–2008–0055] and Leadership Development; and E.O. the individual’s out-processing. Paper 9397 (SSN). records are retained for 2 years and are Privacy Act of 1974; System of destroyed as unclassified For Official Records PURPOSE(S): Use Only waste. To maintain a consolidated file of AGENCY: Department of the Army, DoD. specified personnel, medical and SYSTEM MANAGER(S) AND ADDRESS: ACTION: Notice to Alter a System of training related data pertaining to all Commander, United States Army Records. Army military personnel assigned to Intelligence and Security Command, Headquarters United States Army Fort Belvoir, VA 22060–5370. SUMMARY: The Department of the Army Intelligence and Security Command and is proposing to alter a system of records NOTIFICATION PROCEDURE: their supporting tenant activities. A in its existing inventory of records consolidated records system of selected Individuals seeking to determine systems subject to the Privacy Act of data is required to more efficiently and whether information about themselves 1974, (5 U.S.C. 552a), as amended. effectively provide management and is contained in this system should DATES: The proposed action will be training support to assigned personnel. address written inquiries to the United States Army Intelligence and Security effective on September 11, 2008 unless ROUTINE USES OF RECORDS MAINTAINED IN THE Command, Freedom of Information/ comments are received that would SYSTEM, INCLUDING CATEGORIES OF USERS AND Privacy Office, 4552 Pike Road, Fort result in a contrary determination. THE PURPOSES OF SUCH USES: Meade, MD 20755–5995. ADDRESSES: Department of the Army, In addition to those disclosures Individuals must furnish their full Freedom of Information/Privacy generally permitted under 5 U.S.C. name, any alias, Social Security Number Division, U.S. Army Records 552a(b) of the Privacy Act, these records (SSN), date and place of birth, current Management and Declassification or information contained therein may address, telephone number, and a Agency, 7701 Telegraph Road, Casey specifically be disclosed outside the notarized signature. Building, Suite 144, Alexandria, VA DoD as a routine use pursuant to 5 22325–3905. U.S.C. 552a(b)(3) as follows: RECORD ACCESS PROCEDURES: The ‘Blanket Routine Uses’ set forth at Individuals seeking access to FOR FURTHER INFORMATION CONTACT: Ms. the beginning of the Army’s compilation information about themselves contained Vicki Short at (703) 428–6508. of systems of records notices also apply in this system should address written SUPPLEMENTARY INFORMATION: The to this system. inquiries to the United States Army Department of the Army systems of Intelligence and Security Command, records notices subject to the Privacy POLICIES AND PRACTICES FOR STORING, Freedom of Information/Privacy Office, RETRIEVING, ASSESSING, RETAINING AND Act of 1974, (5 U.S.C. 552a), as 4552 Pike Road, Fort Meade, MD DISPOSING OF RECORDS IN THE SYSTEM: amended, have been published in the 20755–5995. Federal Register and are available from STORAGE: Individuals must furnish their full the address above. Paper records in file folders and on name, any alias, Social Security Number The proposed system report, as electronic storage media. (SSN), date and place of birth, current required by 5 U.S.C. 552a(r) of the address, telephone number, and a RETRIEVABILITY: Privacy Act of 1974, as amended, was notarized signature. By individual’s name, Social Security submitted on July 29, 2008, to the House Number or other individually CONTESTING RECORD PROCEDURES: Committee on Oversight and identifying characteristics. The Army’s rules for accessing Government Reform, the Senate records, and for contesting contents and Committee on Homeland Security and SAFEGUARDS: appealing initial agency determinations Governmental Affairs, and the Office of Military police are used as security are contained in Army Regulation 340– Management and Budget (OMB) personnel. A stringent employee 21; 32 CFR part 505; or may be obtained pursuant to paragraph 4c of Appendix I identification badge and visitor from the system manager. to OMB Circular No. A–130, ‘‘Federal registration/escort system is in effect. Agency Responsibilities for Maintaining The computer terminal and hard copy RECORD SOURCE CATEGORIES: Records About Individuals,’’ dated records are maintained in areas From the individual and from the February 8, 1996 (February 20, 1996, 61 accessible only to authorized personnel official military personnel records, FR 6427).

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Dated: August 1, 2008. address written inquiries to the Judge PURPOSE(S): Patricia L. Toppings Advocate General, Headquarters, To negotiate with, or to sue, as OSD Federal Register Liaison Officer, Department of the Army, Washington, appropriate, insurance carriers, the Department of Defense. DC 20310–2210. individuals or entities responsible for Delete second paragraph and replace loss or damage of U.S. Army property. A0027–20c DAJA with ‘‘Individual should provide their System name: full name, current address and ROUTINE USES OF RECORDS MAINTAINED IN THE Army Property Claim Files (February telephone number, case or claim SYSTEM, INCLUDING CATEGORIES OF USERS AND THE PURPOSES OF SUCH USES: 22, 1993, 58 FR 10002). number that appeared on documentation, any other information In addition to those disclosures CHANGES: that will assist in locating pertinent generally permitted under 5 U.S.C. * * * * * records, and signature.’’ 552a(b) of the Privacy Act, these records or information contained therein may CATEGORIES OF INDIVIDUALS COVERED BY THE RECORD ACCESS PROCEDURES: specifically be disclosed outside the SYSTEM: Individuals seeking access to DoD as a routine use pursuant to 5 Delete entry and replace with information about themselves contained U.S.C. 552a(b)(3) as follows: ‘‘Individuals who, having damaged in this system should address written Information may be disclosed to the Government property, were not subject inquiries to the Judge Advocate General, Department of Justice, U.S. Attorney, to the collection activities of other Headquarters, Department of the Army, and opposing parties and their attorneys agencies or organizations and from Washington, DC 20310–2210. as deemed necessary in litigating whom the Department of the Army must Delete second paragraph and replace property claims. recover its damages through with ‘‘Individuals should provide their Information from this system of administrative collection or through full name, current address and records may also be disclosed to law litigation on its behalf.’’ telephone number, case or claim students participating in a volunteer number that appeared on CATEGORY OF RECORDS IN THE SYSTEM: legal support program approved by the documentation, any other information Judge Advocate General of the Army. Delete entry and replace with that will assist in locating pertinent The ‘‘Blanket Routine Uses’’ set forth ‘‘Individual’s name, address and records, and signature.’’ at the beginning of the Army’s telephone number, case, claim and court * * * * * compilation of systems of records docket numbers, copies of reports from notices also apply to this system. the claim investigator, accident and A0027–20c DAJA police reports relating to damage, and POLICIES AND PRACTICES FOR STORING, SYSTEM NAME: pleadings, motions, briefs, orders, RETRIEVING, ACCESSING, RETAINING, AND decisions, memoranda, opinions, Army Property Claim Files. DISPOSING OF RECORDS IN THE SYSTEM: supporting documentation, and allied SYSTEM LOCATION: STORAGE: material involved in representing the Staff Judge Advocate Offices at Army Paper records and electronic storage U.S. Army.’’ commands, field operating agencies, media. AUTHORITY FOR MAINTENANCE OF THE SYSTEM: installations, and activities. A segment of the system is located at U.S. Army RETRIEVABILITY: Delete entry and replace with ‘‘10 By individual’s surname. U.S.C. 3013, Secretary of the Army; 31 Claims Service, Fort Meade, MD 20755– 5360. U.S.C. 3711, Collection and SAFEGUARDS: Compromise; Army Regulation 27–20, CATEGORIES OF INDIVIDUALS COVERED BY THE Records are accessible only by Claims; and E.O. 9397 (SSN).’’ SYSTEM: authorized personnel who are properly * * * * * Individuals who, having damaged instructed in the permissible use of the Government property, were not subject information. STORAGE: to the collection activities of other Delete entry and replace with ‘‘Paper agencies or organizations and from RETENTION AND DISPOSAL: records and electronic storage media.’’ whom the Department of the Army must Records at the Judge Advocate recover its damages through General’s Office are destroyed 10 years RETRIEVABILITY: administrative collection or through after final action; i.e., completion of Delete entry and replace with ‘‘By litigation on its behalf. litigation of determination that case will individual’s surname.’’ not be prosecuted. Claims settled by CATEGORIES OF RECORDS IN THE SYSTEM: RETENTION AND DISPOSAL: local Staff Judge Advocates are Individual’s name, address and destroyed 6 years and 3 months after Delete entry and replace with telephone number, case, claim and court final action. ‘‘Records at the Judge Advocate docket numbers, copies of reports from General’s Office are destroyed 10 years the claim investigator, accident and SYSTEM MANAGER(S) AND ADDRESS: after final action; i.e., completion of police reports relating to damage, and The Judge Advocate General, litigation of determination that case will pleadings, motions, briefs, orders, Headquarters, Department of the Army, not be prosecuted. Claims settled by decisions, memoranda, opinions, Washington, DC 20310–2210. local Staff Judge Advocates are supporting documentation, and allied NOTIFICATION PROCEDURE: destroyed 6 years and 3 months after material involved in representing the final action.’’ U.S. Army. Individuals seeking to determine * * * * * whether information about themselves AUTHORITY FOR MAINTENANCE OF THE SYSTEM: is contained in this system should NOTIFICATION PROCEDURE: 10 U.S.C. 3013, Secretary of the Army; address written inquiries to the Judge Individuals seeking to determine 31 U.S.C. 3711, Collection and Advocate General, Headquarters, whether information about themselves Compromise; Army Regulation 27–20, Department of the Army, Washington, is contained in this system should Claims; and E.O. 9397 (SSN). DC 20310–2210.

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Individual should provide their full Building, Suite 144, Alexandria, VA CATEGORIES OF RECORDS IN THE SYSTEM: name, current address and telephone 22325–3905. Documents pertaining to travel of number, case or claim number that FOR FURTHER INFORMATION CONTACT: Ms. persons on official Government appeared on documentation, any other Vicki Short at (703) 428–6508. business, and/or their dependents, information that will assist in locating SUPPLEMENTARY INFORMATION: The including but not limited to travel pertinent records, and signature. Department of the Army systems of assignment orders, authorized leave en RECORD ACCESS PROCEDURES: records notices subject to the Privacy route, availability of quarters and/or Individuals seeking access to Act of 1974, (5 U.S.C. 552a), as shipment of household goods and information about themselves contained amended, have been published in the personal effects, application for in this system should address written Federal Register and are available from passport/visas, the passport authorized inquiries to the Judge Advocate General, the address above. travel, security clearance and relevant Headquarters, Department of the Army, The specific changes to the record messages and correspondence. Records Washington, DC 20310–2210. system being amended are set forth may also include clearances for official Individuals should provide their full below followed by the notice, as travel to or within certain foreign amended, published in its entirety. The name, current address and telephone countries which may require military proposed amendments are not within number, case or claim number that theater/area and/or Department of State appeared on documentation, any other the purview of subsection (r) of the Privacy Act of 1974, (5 U.S.C. 552a), as authorization pursuant to DoD Directive information that will assist in locating 5000.7 or other established military pertinent records, and signature. amended, which requires the submission of a new or altered system requirement applying in overseas CONTESTING RECORD PROCEDURES: report. commands for personal unofficial travel in certain foreign countries. The Army’s rules for accessing Dated: August 6, 2008. records, and for contesting contents and Patricia L. Toppings, appealing initial agency determinations AUTHORITY FOR MAINTENANCE OF THE SYSTEM: OSD Federal Register Liaison Officer, are contained in Army Regulation 340– Department of Defense. 10 U.S.C. 3013, Secretary of the Army; 21; 32 CFR part 505; or may be obtained 10 U.S.C. 704, Duties of Trustee; Army from the system manager. A0055–355b DALO Regulation 55–355, Defense Traffic RECORD SOURCE CATEGORIES: SYSTEM NAME: Management Regulation and E.O. 9397 (SSN). From the individual; Army records Individual Travel Files (February 22, and reports; Office of Personnel 1993, 58 FR 10002). PURPOSE(S): Management; Department of Justice, U.S. Attorney, opposing counsel, and CHANGES: To process official travel requests similar pertinent sources. * * * * * (and personal travel to restricted areas if in overseas commands) for military and EXEMPTIONS CLAIMED FOR THE SYSTEM: AUTHORITY FOR MAINTENANCE OF THE SYSTEM: civilian personnel; to determine None. Delete entry and replace with ‘‘10 eligibility of individual’s dependents to U.S.C. 704, Duties of Trustee; 10 U.S.C. [FR Doc. E8–18592 Filed 8–11–08; 8:45 am] travel; to obtain necessary clearances 3013, Secretary of the Army; Army BILLING CODE 5001–06–P where foreign travel is involved, Regulation 55–355, Defense Traffic including assisting individual in Management Regulation and E.O. 9397 (SSN).’’ applying for passports and visas and DEPARTMENT OF DEFENSE counseling where proposed travel * * * * * involves visiting/transiting communist Department of the Army STORAGE: countries. [Docket ID: USA–2008–0056] Delete entry and replace with ‘‘Paper records in file folders and electronic ROUTINE USES OF RECORDS MAINTAINED IN THE Privacy Act of 1974; System of SYSTEM, INCLUDING CATEGORIES OF USERS AND storage media.’’ Records THE PURPOSES OF SUCH USES: * * * * * AGENCY: Department of the Army, DoD. In addition to those disclosures ACTION: Notice to Amend a System of A0055–355b DALO generally permitted under 5 U.S.C. Records. SYSTEM NAME: 552a(b) of the Privacy Act, these records or information contained therein may Individual Travel Files. SUMMARY: The Department of the Army specifically be disclosed outside the is amending a system of records notice SYSTEM LOCATION: DoD as a routine use pursuant to 5 in its existing inventory of record U.S.C. 552a(b)(3) as follows: systems subject to the Privacy Act of Travel offices at installations, major 1974, (5 U.S.C. 552a), as amended. commands, and Army Staff Agencies. Information may be disclosed to attache´ or law enforcement authorities DATES: This proposed action will be CATEGORIES OF INDIVIDUALS COVERED BY THE effective without further notice on SYSTEM: of foreign countries; to U.S. Department of Justice or Department of Defense September 11, 2008 unless comments Army military (active and reserve) legal/intelligence/investigative agencies are received which result in a contrary and civilian personnel, U.S. determination. Government personnel assigned to for security, investigative, intelligence, and/or counterintelligence operations. ADDRESSES: Department of the Army, Army and other military installations, Freedom of Information/Privacy their dependents and bona fide The ‘Blanket Routine Uses’ set forth at Division, U.S. Army Records members of individual’s household, and the beginning of the Army’s compilation Management and Declassification U.S. personnel traveling under Army of systems of records notices also apply Agency, 7701 Telegraph Road, Casey sponsorship, including contractors. to this system.

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POLICIES AND PRACTICES FOR STORING, DEPARTMENT OF DEFENSE SAFEGUARDS: RETRIEVING, ACCESSING, RETAINING, AND Delete entry and replace with DISPOSING OF RECORDS IN THE SYSTEM: Department of the Army ‘‘Buildings employ alarms, security STORAGE: guards and/or rooms are security Paper records in file folders and [Docket ID: USA–2008–0050] controlled accessible only to authorized electronic storage media. persons. Paper records in the IRR are Privacy Act of 1974; System of stored in security controlled areas RETRIEVABILITY: Records accessible only to authorized persons. By individual’s surname. AGENCY: Department of the Army, DoD. Electronically stored records are maintained in specialized software with SAFEGUARDS: ACTION: Notice to Amend a System of password protected access and data Records. Records are maintained in areas backup measures. Records are accessible accessible only to authorized persons only to authorized persons with a need- who are properly screened, cleared, and SUMMARY: The Department of the Army is amending a system of records notice to-know who are properly screened, trained. Buildings housing records are cleared, and trained.’’ either located on controlled access post in its existing inventory of record systems subject to the Privacy Act of or otherwise secured when offices are RETENTION AND DISPOSAL: closed. 1974, (5 U.S.C. 552a), as amended. DATES: This proposed action will be Delete entry and replace with RETENTION AND DISPOSAL: effective without further notice on ‘‘Records are retained in active file until Records are retained for 2 years after September 11, 2008 unless comments no longer needed; then retired to the which they are destroyed by shredding. are received which result in a contrary IRR where they are destroyed 75 years determination. after date of last action. Destruction is SYSTEM MANAGER(S) AND ADDRESS: ADDRESSES: Department of the Army, by shredding, burning, or pulping for The Adjutant General, Headquarters, Freedom of Information/Privacy paper records and magnetic erasing for Department of the Army, 2461 Division, U.S. Army Records electronic records.’’ Eisenhower Avenue, Alexandria, VA Management and Declassification * * * * * 22331–0470. Agency, 7701 Telegraph Road, Casey NOTIFICATION PROCEDURE: NOTIFICATION PROCEDURE: Building, Suite 144, Alexandria, VA Individuals seeking to determine 22325–3905. Delete entry and replace with whether information about themselves FOR FURTHER INFORMATION CONTACT: Ms. ‘‘Individuals seeking to determine is contained in this system should Vicki Short at (703) 428–6508. whether information about themselves address written inquiries to the SUPPLEMENTARY INFORMATION: The is contained in this system should Administrative or Personal Services Department of the Army systems of address written inquiries to the U.S. Office at the installation/major records notices subject to the Privacy Army Intelligence and Security command at which travel request/ Act of 1974, (5 U.S.C. 552a), as Command, Freedom of Information/ clearance was initiated. amended, have been published in the Privacy Office, 4552 Pike Road, Fort Federal Register and are available from George G. Meade, MD 20755–5995. RECORD ACCESS PROCEDURES: the address above. Individual should provide their full Individuals seeking access to The specific changes to the record name, any alias, Social Security Number information about themselves contained system being amended are set forth (SSN), date and place of birth, current in this system should address written below followed by the notice, as address, telephone number and inquiries to the appropriate amended, published in its entirety. The notarized signature.’’ decentralized record custodian. proposed amendments are not within Individual should provide full name, the purview of subsection (r) of the RECORD ACCESS PROCEDURES: grade/rank, signature, and details of Privacy Act of 1974, (5 U.S.C. 552a), as Delete the first and second paragraphs travel authorization/clearance amended, which requires the and replace with ‘‘Individuals seeking documents being accessed. Custodian of submission of a new or altered system to determine whether information about records may require notarized statement report. themselves is contained in this system of identity. Dated: August 1, 2008. should address written inquiries to the CONTESTING RECORD PROCEDURES: Patricia L. Toppings, U.S. Army Intelligence and Security The Army’s rules for accessing OSD Federal Register Liaison Officer, Command, Freedom of Information/ records, and for contesting contents and Department of Defense. Privacy Office, 4552 Pike Road, Fort George G. Meade, MD 20755–5995. appealing initial agency determinations A0381–100a DAMI are contained in Army Regulation 340– Individual should provide their full 21; 32 CFR part 505; or may be obtained SYSTEM NAME: name, any alias, Social Security Number (SSN), date and place of birth, current from the system manager. Intelligence/Counterintelligence address, telephone number and Source Files (November 1, 1995, 60 FR RECORD SOURCE CATEGORIES: notarized signature.’’ 51996). From the individual requesting travel Delete the third paragraph. authorization/clearance; Army records CHANGES: * * * * * and reports. * * * * * A0381–100a DAMI EXEMPTIONS CLAIMED FOR THE SYSTEM: STORAGE: None. Delete entry and replace with ‘‘Paper SYSTEM NAME: [FR Doc. E8–18593 Filed 8–11–08; 8:45 am] records and electronic storage media.’’ Intelligence/Counterintelligence BILLING CODE 5001–06–P * * * * * Source Files.

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SYSTEM LOCATION: PURPOSE(S): NOTIFICATION PROCEDURE: U.S. Army Intelligence and Security To support contingency planning and Individuals seeking to determine Command, 8825 Beulah Street, Fort military operations, to conduct whether information about themselves Belvoir, VA 22060–5246. counterintelligence and intelligence is contained in this system should Decentralized segments are located at operations, to confirm claims against the address written inquiries to the U.S. U.S. Army Intelligence brigades, groups, Army by source or heirs of source, and Army Intelligence and Security battalions, companies, detachments, and to document source operations Command, Freedom of Information/ field offices and resident offices pertaining to the U.S. Army’s Privacy Office, 4552 Pike Road, Fort worldwide. Official mailing addresses responsibilities for intelligence and George G. Meade, MD 20755–5995. are published as an appendix to the counterintelligence. Individual should provide their full Army’s compilation of systems of name, any alias, Social Security Number records notices. ROUTINE USES OF RECORDS MAINTAINED IN THE (SSN), date and place of birth, current SYSTEM, INCLUDING CATEGORIES OF USERS AND address, telephone number and CATEGORIES OF INDIVIDUALS COVERED BY THE THE PURPOSES OF SUCH USES: SYSTEM: notarized signature. In addition to those disclosures Selected individuals who qualify and RECORD ACCESS PROCEDURES: may be accepted as an intelligence or generally permitted under 5 U.S.C. counterintelligence source for the U.S. 552a(b) of the Privacy Act, these records Individuals seeking to determine Army. or information contained therein may whether information about themselves specifically be disclosed outside the is contained in this system should CATEGORIES OF RECORDS IN THE SYSTEM: DoD as routine uses pursuant to 5 U.S.C. address written inquiries to the U.S. Record consists of agreements; 552a(b)(3) as follows: Army Intelligence and Security contracts; information reports; financial The ‘Blanket Routine Uses’ published Command, Freedom of Information/ reports; operational correspondence; at the beginning of the Army’s Privacy Office, 4552 Pike Road, Fort requests for, technical files, and results compilation of systems of records George G. Meade, MD 20755–5995. of polygraph examinations; audiovisual notices also apply to this system. Individual should provide their full products and similar documents name, any alias, Social Security Number necessary to confirm operational use of POLICIES AND PRACTICES FOR STORING, (SSN), date and place of birth, current source or future claims against the Army RETRIEVING, ACCESSING, RETAINING, AND address, telephone number and by source or heirs of the source. DISPOSING OF RECORDS IN THE SYSTEM: notarized signature. Administrative records required by the STORAGE: CONTESTING RECORD PROCEDURES: U.S. Army Investigative Records Paper records and electronic storage Repository (IRR) for records The Army’s rules for accessing media. management purposes such as form records, and for contesting contents and transmitting operational material to the RETRIEVABILITY: appealing initial agency determinations IRR and providing instructions for are contained in Army Regulation 340– By individual name or source/project indexing the record in the Defense 21; 32 CFR part 505; or may be obtained name, date and place of birth, Social Central Index of Investigations [Defense from the system manager. Security Number, and numerically by Clearance and Investigations Index] source or project number. RECORD SOURCE CATEGORIES (System Notice V5–02) and release of : From individual; Federal and material contained therein, form SAFEGUARDS: indicating dossier has been reviewed Department of Defense investigative, Buildings employ alarms, security and all material therein conforms to intelligence and law enforcement guards and/or rooms are security Department of Defense (DoD) policy agencies; and foreign investigative, controlled accessible only to authorized regarding retention criteria, form intelligence, and law enforcement persons. Paper records in the IRR are pertaining to the release of information agencies. stored in security controlled areas pertaining to controlled records, cross EXEMPTIONS CLAIMED FOR THE SYSTEM: reference sheet to indicate the removal accessible only to authorized persons. of investigative documents requiring Electronically stored records are Parts of this system may be exempt limited access, form identifying material maintained in specialized software with under 5 U.S.C. 552a(k)(1), (k)(2), or that has been segregated and or is password protected access and data (k)(5), as applicable. exempt from release, and records backup measures. Records are accessible An exemption rule for this system has accounting for the disclosure of only to authorized persons with a need- been promulgated in accordance with operational information made outside of to-know who are properly screened, requirements of 5 U.S.C. 553(b)(1), (2), the DoD. cleared, and trained. and (3), (c), and (e) and published in 32 CFR part 505. For additional RETENTION AND DISPOSAL: AUTHORITY FOR MAINTENANCE OF THE SYSTEM: information contact the system manager. 10 U.S.C. 3013, Secretary of the Army; Records are retained in active file National Security Act of 1947, as until no longer needed; then retired to [FR Doc. E8–18594 Filed 8–11–08; 8:45 am] amended; E.O. 10450, Security the IRR where they are destroyed 75 BILLING CODE 5001–06–P Requirements for Government years after date of last action. Employment, paragraphs 2, 3, 4, 5, 6, 7, Destruction is by shredding, burning, or 8, 9, and 14; E.O. 12333, United States pulping for paper records and magnetic DEPARTMENT OF EDUCATION Intelligence Activities, paragraphs erasing for electronic records. 1.1(c), 1.1(d), 1.12(d), 2.3, 2.4, and 2.6; SYSTEM MANAGER(S) AND ADDRESS: Notice of Waiver for the Adult the National Security Act of 1947, as Education and Family Literacy Act to amended; the Intelligence Authorization Deputy Chief of Staff for Intelligence, Certain Outlying Areas Act of 1995, title V, section 503 and title Headquarters, Department of the Army, VIII, sections 801–811 and E.O. 9397 1001 Army Pentagon, Washington, DC AGENCY: Office of Vocational and Adult (SSN). 20310–1001. Education, Department of Education.

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ACTION: Notice of Waiver for the Adult normally would conduct a new comments on the Secretary’s proposal to Education and Family Literacy Act to competition because the funding for the waive 34 CFR 75.250 in order to Certain Outlying Areas. current grant, obtained from the fiscal continue the current grant. All of the year 2002 through 2006 appropriations, comments that we received support our SUMMARY: The Secretary waives the was available to the group beginning in proposal. In addition, given that the requirements in 34 CFR 75.250 and 34 2003, and under 34 CFR 75.250 the current grant ends on August 31, 2008, CFR 75.261(c)(2) of the Education project period generally lasts no longer and in order to avoid any lapse in Department General Administrative than 60 months. funding under this program, the Regulations (EDGAR) to enable the On July 7, 2008, in accordance with Secretary has determined that a delayed funding of continuation grants for section 553(b) of the Administrative effective date is unnecessary and certain outlying areas under section Procedure Act (APA), the Department contrary to the public interest. 211(e) of the Adult Education and gave actual notice to all current eligible Family Literacy Act (AEFLA). This grantees of our proposal to waive 34 Waiver of 34 CFR 75.250 and waiver enables the current eligible CFR 75.250 and 34 CFR 75.261(c)(2) and 75.261(c)(2) grantees to continue to receive Federal to fund continuation grants instead of In determining how to implement funding beyond the five-year limitation holding a new grant competition, and section 211(e) this year, the Department contained in 34 CFR 75.250. invited their comments on our proposal. considered the relatively small amount DATES: This notice is effective August The notice also provided the current of funds appropriated under section 12, 2008. designated grantee with an opportunity 211(e) for fiscal years (FYs) 2007 and 2008 ($61,257 and $65,131, FOR FURTHER INFORMATION CONTACT: to submit specific information regarding Sarah Newcomb, U.S. Department of the grant and any plans to improve its respectively), the burden on group members in having to file either new Education, 400 Maryland Avenue, SW., current implementation. This waiver competitive applications or a new group Room 11007, Potomac Center Plaza, will enable the Secretary to provide application, and the commitment of Washington, DC 20202–7240. additional funds to all current, eligible time and resources a new competition Telephone (202) 245–7754 or e-mail: grantees for additional periods for as would require of the Department and [email protected]. long Congress continues to appropriate Pacific Resources for Education and If you use a telecommunications funds under the current legal authority Learning (PREL) in Honolulu, which device for the deaf (TDD), call the in section 211(e) of AEFLA and possibly would be required by section 211(e)(2) Federal Relay Service (FRS), toll free, at during a transition to any new program of AEFLA to make recommendations in 1–800–877–8339. authorities Congress might create if and a new competition. The Department also Individuals with disabilities can when it chooses to reauthorize AEFLA. has considered the fact that all the obtain a copy of this document in an There is no substantive difference entities eligible for funding under alternative format (e.g., Braille, large between the actual notice of our section 211(e) are members of the group print, audiotape, or computer diskette) proposal and this notice of funding of continuation grants and waiver. and receive services through the current by contacting the program contact grant. person listed in this section. Therefore, all affected parties were provided actual notice of the In light of these factors, the SUPPLEMENTARY INFORMATION: Department’s proposal and an Department waives the 60-month limit Background: The Office of Vocational opportunity to comment in lieu of on the project period established by 34 and Adult Education awarded a publication of a notice of proposed CFR 75.250 for the existing grant award. discretionary grant on September 1, rulemaking in the Federal Register. The Department plans to continue 2003, under the provisions of section funding the current grant, rather than 211(e) of the AEFLA to a group of Comment conducting a new competition, if the applicants that included American In response to the actual notice of designated grantee submits further Samoa, Guam, Northern Marianas, and proposed funding of continuation grants satisfactory information regarding its Palau. Each member of the group could and waiver, and our invitation to performance under the current grant have applied for, and competed with, comment, five parties submitted and its plans to improve the other members of the group for comments supporting the proposed implementation of the grant. The section 211(e) funds. However, the waiver and the proposal to continue Department also waives 34 CFR applicants decided to file a joint funding for all current, eligible grantees. 75.261(c)(2), which limits the extension application naming the Northern During this period, the current of a project period. The Department is Marianas College (NMC) as the designated grantee also submitted a waiving this additional regulation in designated grantee on behalf of the written agreement, including a program order to be able to continue the current group so that all parties could benefit narrative, signed by all the outlying grant with FY 2007 and 2008 funds. under a common application. Joint areas eligible for funding, that describes The Department’s waiver of the applications of this type are authorized the activities that NMC intends to carry regulations and continued funding of in 34 CFR 75.127 through 129 of out with funds under a continuation the current grant would extend as long EDGAR. AEFLA funds under the grant grant. In light of these positive as Congress continues to appropriate are targeted to the training of adult comments and the additional funds under the current legal authority educators from all members of the information, we have not made any in section 211(e), and possibly during a group. No entities other than those in substantive changes to our proposal. transition to any new program the group are eligible to receive funding authorities Congress might create with under section 211(e). Waiver of Delayed Effective Date respect to members of the group if and The project period for the current The APA requires that a substantive when it reauthorizes AEFLA. However, award to the group ends on August 31, rule be published at least 30 days before the continuation would initially only be 2008. Congress has appropriated its effective date, except as otherwise from FY 2007 funds. The waiver would funding for AEFLA, including section provided for good cause (5 U.S.C. not affect any other legal provisions 211(e), for both fiscal year 2007 and 553(d)(3)). We provided all affected governing the grant to group members, fiscal year 2008. The Department entities an opportunity to submit including the requirement that

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continuation of the grant would depend entities that would be affected are DEPARTMENT OF ENERGY on the group’s meeting the requirements American Samoa Community College; of 34 CFR 75.253. Among other things, Guam Community College; Northern Southwestern Power Administration § 75.253 conditions continuation of a Marianas College, the grantee of the grant on the grantee’s having made group; Ministry of Education Republic Notice of Re-Opening of Public substantial progress toward meeting the of Palau; and PREL. Comment Period for White River objectives in its approved application. Minimum Flows—Proposed The grantee also would have to comply Paperwork Reduction Act of 1995 Determination of Federal and Non- with any special conditions of the grant This notice of waiver does not contain Federal Hydropower Impacts established by the Department in order any information collection AGENCY: Southwestern Power to receive further continuation funding requirements. Administration, DOE. from the FY 2008 or any future ACTION: appropriation. Intergovernmental Review Notice of re-opening of public comment period. The waivers of 34 CFR 75.250 and This program is subject to Executive 75.261(c)(2) do not exempt the group Order 12372 and the regulations in 34 SUMMARY: Southwestern Power from the account closing provisions of CFR part 79. One of the objectives of the Administration (Southwestern) is re- 31 U.S.C. 1552(a), nor would they Executive Order is to foster an opening the public comment period on extend the availability of funds intergovernmental partnership and a its proposed determination of the previously awarded the group. Under 31 strengthened federalism. The Executive Federal and non-Federal hydropower U.S.C. 1552(a), appropriations available Order relies on processes developed by impacts of the White River Minimum for a limited period may be used for State and local governments for Flows project for an additional 45 days. payment of valid obligations for only coordination and review of proposed The original notice, issued July 3, 2008, five years after the expiration of their Federal financial assistance. provided a 30-day comment period period of availability for Federal This document provides early ending on August 4, 2008 (73 FR obligation. After that time, the notification of our specific plans and 38198). Southwestern is re-opening the unexpended balance of those funds will actions for this program. comment period until September 18, be canceled and returned to the U.S. 2008. Treasury Department and will be Assessment of Educational Impact DATES: The public comment period unavailable for restoration for any Based on our own review, we have closes on September 18, 2008. Written purpose. determined that this notice of waiver comments on Southwestern’s proposed The Department believes that its does not require transmission of determination must be received by that waiver of regulations and continued information that any other agency or date. funding of the group application is in authority of the United States gathers or the best interests of the members of the makes available. ADDRESSES: Comments should be group application and the public submitted to George Robbins, Director, interest. Electronic Access to This Document Division of Resources and Rates, Instructions for Requesting a You can view this document, as well Southwestern Power Administration, Continuation Award Under EDGAR as all other documents of this U.S. Department of Energy, One West Part 75 Department published in the Federal Third Street, Tulsa, Oklahoma 74103. FOR FURTHER INFORMATION CONTACT: Mr. Under applicable EDGAR provisions, Register, in text or Adobe Portable George Robbins, Director, Division of a grantee wishing to receive an annual Document Format (PDF) on the Internet Resources and Rates, (918) 595–6680, continuation grant must submit a at the following site: http://www.ed.gov/ [email protected]. performance report providing the most news/fedregister. current performance and financial To use PDF you must have Adobe SUPPLEMENTARY INFORMATION: expenditure information on its project. Acrobat Reader, which is available free Southwestern’s draft determination was A grantee must also submit a budget and at this site. If you have questions about published by Federal Register Notice budget narrative each year it requests a using PDF, call the U.S. Government (73 FR 6717) dated February 5, 2008. continuation award. (34 CFR Printing Office (GPO), toll free, at 1– Written comments were invited through 75.253(c)(2)). In addition, a grantee must 888–293–6498; or in the Washington, March 6, 2008. All public comments submit a program narrative that DC, area at (202) 512–1530. received were considered, and describes the activities it intends to Note: The official version of this document Southwestern’s draft determination was carry out with a continuation award. is the document published in the Federal revised as necessary to incorporate the The activities described must be Register. Free Internet access to the official public comments. Since there were consistent with, or be a logical edition of the Federal Register and the Code significant changes to Southwestern’s extension of, the scope, goals, and of Federal Regulations is available on GPO draft determination, Southwestern Access at: http://www.gpoaccess.gov/nara/ published a proposed determination for objectives of the grantee’s approved index.html. application. (34 CFR 75.261(c)(3)). The public review and comment prior to its Department will award a continuation (Catalog of Federal Domestic Assistance final determination. grant each year only if the grantee Number: 84.002A Outlying Area portion of Southwestern’s proposed submits a satisfactory performance the State Grant Program) determination was published by Federal report, budget and budget narrative, and Program Authority: 20 U.S.C. 9211(e). Register Notice (73 FR 38198) dated July program narrative. 3, 2008. Written comments were invited Dated: August 7, 2008. through August 4, 2008. Due to requests Regulatory Flexibility Act Certification Troy R. Justesen, for additional time to provide public The Secretary certifies that this notice Assistant Secretary for Vocational and Adult comments, Southwestern is re-opening of waiver will not have a significant Education. the public comment period for 45 days. economic impact on a substantial [FR Doc. E8–18622 Filed 8–11–08; 8:45 am] Written comments will now be accepted number of small entities. The only BILLING CODE 4000–01–P through September 18, 2008. Comments

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submitted between August 4, 2008 and approximately 5.56 percent when 2008. All comments were considered in August 12, 2008 are deemed timely compared with the existing BCP electric developing the Rates for FY 2009. submitted. service composite rate. The increase is Written comments were received from: Dated: August 4, 2008. due to a decrease in the projected Irrigation & Electrical Districts energy sales and an increase in the Jon C. Worthington, Association of Arizona, Phoenix, annual revenue requirement. The FY Arizona. Administrator. 2009 base charge is increasing to Comments and responses, [FR Doc. E8–18574 Filed 8–11–08; 8:45 am] $70,213,497. The major contributing paraphrased for brevity when not BILLING CODE 6450–01–P factor to the base charge increase is the affecting the meaning of the statements, increase in annual expenses. The FY are presented below. 2009 energy rate of 9.31 mills/kWh is DEPARTMENT OF ENERGY approximately a 5.56 percent increase Rates Stability Western Area Power Administration from the existing energy rate of 8.82 Comment: BCP Contractors expressed mills/kWh. The increase in the energy concern that the composite rate has Boulder Canyon Project rate is due to a decrease in the projected increased from 8.93 mills/kWh in 2000 energy sales resulting from a decrease in to 18.53 mills/kWh in 2009. The BCP AGENCY: Western Area Power projected water releases. The FY 2009 Contractors further suggested that since Administration, DOE. capacity rate of $1.73/kWmonth reflects major projects at Hoover which resulted ACTION: Notice of Base Charge and Rates. an increase of approximately 6.13 in increased spending are complete and percent compared to the existing Lake Mead water levels continue to be SUMMARY: The Deputy Secretary of capacity rate of $1.63/kWmonth. The low, Western and Reclamation should Energy approved the Fiscal Year (FY) increase in the capacity rate is due to postpone expenditures where possible 2009 Base Charge and Rates (Rates) for dropping lake elevations. Another factor and strive to structure budgets in such Boulder Canyon Project (BCP) electric contributing to the increase in both the a way to levelize or reduce rates. service provided by the Western Area energy and capacity rates is the increase Power Administration (Western). The Response: Western and Reclamation in the annual revenue requirement. appreciate the BCP Contractors’ concern Rates will provide sufficient revenue to The following summarizes the steps over reduced generation and increased pay all annual costs, including interest taken by Western to ensure involvement spending. Much of the increased expense, and repay investments within of all Interested Parties in determining spending is aimed toward maintaining the allowable period. the Rates: the reliability of the Hoover resource DATES: 1. A Federal Register notice was The Rates will be effective the and achieving maximum energy and first day of the first full billing period published on February 1, 2008 (73 FR 6177), announcing the proposed rate capacity even as Lake Mead water levels beginning on or after October 1, 2008. decline. However, Western and These Rates will stay in effect through adjustment process, initiating a public consultation and comment period, Reclamation will continue to partner September 30, 2009, or until superseded with the Hoover Contractors, through by other rates. announcing public information and public comment forums, and presenting the Engineering and Operating FOR FURTHER INFORMATION CONTACT: Mr. Committee and the Technical Review Jack Murray, Rates Manager, Desert procedures for public participation. 2. On February 4, 2008, a letter was Committee, to seek ways to structure Southwest Customer Service Region, budgets in such a way to minimize cost Western Area Power Administration, mailed from Western’s Desert Southwest Customer Service Region to the BCP increases while maintaining the safe P.O. Box 6457, Phoenix, AZ 85005– and reliable operation of the project. 6457, (602) 605–2442, e-mail Contractors and other Interested Parties [email protected]. announcing an informal customer Security Costs Legislation meeting and public information and SUPPLEMENTARY INFORMATION: Rate comment forums. Comment: An Interested Party made a Schedule BCP–F7, Rate Order No. 3. Discussion of the proposed Rates statement with regard to Senate Bill S. WAPA–120, effective October 1, 2005, was initiated at an informal BCP 2739. Section 513 of that bill contains through September 30, 2010, allows for Contractor meeting held March 12, post-September 11, 2001, security cost an annual recalculation of the rates.1 2008, in Phoenix, Arizona. At this legislation which specifies the amount Under Rate Schedule BCP–F7, the informal meeting, representatives from of security costs which will be existing composite rate, effective on Western and the Bureau of Reclamation considered non-reimbursable. The October 1, 2007, was 17.64 mills per (Reclamation) explained the basis for Interested Party requested that Western kilowatthour (mills/kWh). The base estimates used to calculate the Rates and Reclamation adjust their budgets to charge was $66,975,283, the energy rate and held a question and answer session. account for the legislation. was 8.82 mills/kWh, and the capacity 4. At the public information forum Response: The President of The rate was $1.63 per kilowattmonth held on April 2, 2008, in Phoenix, United States signed Senate Bill S.2739 (kWmonth). The re-calculated rates for Arizona, Western and Reclamation into law on May 8, 2008 (Pub. L. 110– BCP electric service, to be effective representatives explained the proposed 229). Reclamation will determine if any October 1, 2008, will result in an overall Rates for FY 2009 in greater detail and reimbursable costs in Section 513 will composite rate of 18.62 mills/kWh. The held a question and answer session. be deemed non-reimbursable under this proposed rates were calculated using 5. A public comment forum held on new law. If the determination is made the FY 2009 Final Ten-Year Operating April 23, 2008, in Phoenix, Arizona, prior to the finalization of the rate Plan. This resulted in an increase of provided the public an opportunity to package, Western will implement comment for the record. Three appropriate changes, if necessary to the 1 WAPA–120 was approved by the Deputy individuals commented at this forum. FY 2009 Rates. If the determination is Secretary of Energy on August 11, 2005 (70 FR 6. Western received one comment made after the rate package is finalized, ¶ 71280), and confirmed and approved by the Federal Energy Regulatory Commission (FERC) on letter during the 90-day consultation then any security costs deemed non- a final basis on August 26, 2005, in Docket No. and comment period. The consultation reimbursable will roll into carry over, EF05–5091–000 (115 FERC ¶ 61362). and comment period ended May 1, reducing FY 2010 Rates.

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Hydrology By Delegation Order No. 00–037.00, 9.31 mills/kWh, and a capacity rate of Comment: An Interested Party sought effective December 6, 2001, the $1.73/kWmonth be approved on a final assurance that Western, in its base Secretary of Energy delegated: (1) The basis. Consistent with procedures set forth charge and rates calculation, take into authority to develop long-term power in 10 CFR part 903 and 18 CFR part 300, account the new Reclamation 24-month and transmission rates on a non- Western held a consultation and study. The revised study should show exclusive basis to Western’s comment period. The notice of the equalization releases from Lake Powell Administrator, (2) the authority to proposed FY 2009 Rates for electric beginning in May and continuing confirm, approve, and place such rates service was published in the Federal through September. The end result into effect on an interim basis to the Register on February 1, 2008 (73 FR could be increased efficiencies and a Deputy Secretary of Energy, and (3) the authority to confirm, approve, and place 6177). reduction in the per-unit cost for Under Delegation Order Nos. 00– capacity charged to customers. into effect on a final basis, to remand or to disapprove such rates to FERC. 037.00 and 00–001.00B, and in Response: Western will utilize the compliance with 10 CFR part 903 and final master schedule which includes Existing DOE procedures for public participation in electric service rate 18 CFR part 300, I hereby approve the the most current 24-month study prior FY 2009 Rates for BCP Electric Service to submitting the rate package for adjustments are located at 10 CFR part 903, effective September 18, 1985 (50 on a final basis under Rate Schedule approval. The final master schedule is BCP–F7 through September 30, 2009. normally completed in early June and FR 37835), and 18 CFR part 300. DOE will have the most up to date procedures were followed by Western in Dated: August 1, 2008. information available at that time. developing the rate formula approved Jeffrey F. Kupfer, by FERC on June 22, 2006, at 115 FERC Acting Deputy Secretary. BCP Electric Service Rates ¶ 61362.2 [FR Doc. E8–18575 Filed 8–11–08; 8:45 am] The Boulder Canyon Project BCP electric service rates are designed BILLING CODE 6450–01–P to recover an annual revenue Implementation Agreement requires requirement that includes operation and that, prior to October 1 of each rate year, maintenance expenses, payments to Western determine the annual rates for the next fiscal year. The rates for the ENVIRONMENTAL PROTECTION states, visitor services, the uprating AGENCY program, replacements, investment first rate year, and each fifth rate year repayment, and interest expense. thereafter, will become effective [EPA–HQ–OW–2008–0517, FRL–8703–1] Western’s Power Repayment Study provisionally upon approval by the Agency Information Collection (PRS) allocates the projected annual Deputy Secretary of Energy subject to Activities: Proposed Collection; revenue requirement for electric service final approval by FERC. For all other Comment Request; Study of Unused equally between capacity and energy. rate years, the rates will become effective on a final basis upon approval Pharmaceuticals from Medical and Availability of Information by the Deputy Secretary of Energy. Veterinary Facilities (New), EPA ICR Number 2316.01, OMB Control No. Information about this base charge Western will continue to provide 2040–NEW and rate adjustment, including power annual rates to the BCP Contractors by October 1 of each year using the same repayment studies, comments, letters, AGENCY: Environmental Protection ratesetting formula. The rates are memorandums, and other supporting Agency (EPA). reviewed annually and adjusted upward material developed or maintained by ACTION: Notice. Western that was used to develop the or downward to assure sufficient FY 2009 BCP Rates, is available for revenues are collected to achieve SUMMARY: In compliance with the public review in the Desert Southwest payment of all costs and financial Paperwork Reduction Act (44 U.S.C. Customer Service Regional Office, obligations associated with the project. 3501 et seq.), this document announces Western Area Power Administration, Each fiscal year, Western prepares a PRS that EPA is planning to submit a 615 South 43rd Avenue, Phoenix, for the BCP to update actual revenues proposed Information Collection Arizona. The information is also and expenses including interest, Request (ICR) to the Office of available on Western’s Web site at estimates of future revenues, expenses, Management and Budget (OMB). This is http://www.wapa.gov/dsw/pwrmkt/BCP/ and capitalized costs. a request for a new collection. Before RateAdjust.htm. The BCP ratesetting formula includes submitting the ICR to OMB for review a base charge, an energy rate, and a and approval, EPA is soliciting Ratemaking Procedure Requirements capacity rate. The ratesetting formula comments on specific aspects of the BCP electric service rates are was used to determine the BCP FY 2009 proposed information collection as developed under the Department of Rates. described below. Western proposes a FY 2009 base Energy Organization Act (42 U.S.C. DATES: Comments must be submitted on 7101–7352), through which the power charge of $70,213,497, an energy rate of or before November 10, 2008. marketing functions of the Secretary of ADDRESSES: 2 The existing ratesetting formula was established Submit your comments, the Interior and Reclamation under the in Rate Order No. WAPA–70 on April 19, 1996, in data and information, identified by Reclamation Act of 1902 (ch. 1093, 32 Docket No. EF96–5091–000 at 75 FERC ¶ 62050, for Docket ID No. EPA–HQ–OW–2008– Stat. 388), as amended and the period beginning November 1, 1995, and ending 0517, by one of the following methods: supplemented by subsequent September 30, 2000. Rate Order No. WAPA–94, (1) http://www.regulations.gov. extending the existing ratesetting formula beginning enactments, particularly section 9(c) of on October 1, 2000, and ending September 30, 2005, Follow the on-line instructions for the Reclamation Project Act of 1939 (43 was approved on July 31, 2001, in Docket No. submitting comments. U.S.C. 485h(c)), and other acts that EF00–5092–000 at 96 FERC ¶ 61171. Rate Order No. (2) E-mail: [email protected], specifically apply to the project WAPA–120, extending the existing ratesetting Attention Docket ID No. EPA–HQ–OW– formula for another five-year period beginning on involved, were transferred to and vested October 1, 2005, and ending September 30, 2010, 2008–0517. in the Secretary of Energy, acting by and was approved on June 22, 2006, in Docket No. (3) Mail: Water Docket, Environmental through Western. EF05–5091–000 at 115 FERC ¶ 61362. Protection Agency, Mailcode: 4203M,

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1200 Pennsylvania Ave., NW., Center, EPA/DC, EPA West, Room 3334, (iii) Select appropriate entities to Washington, DC 20460, Attention 1301 Constitution Ave., NW., receive the questionnaire in terms of Docket ID No. EPA–HQ–OW–2008– Washington, DC. The Public Reading what units (e.g., facilities, offices) 0517. Please include a total of 3 copies. Room is open from 8:30 a.m. to 4:30 should be surveyed; how many should (4) Hand Delivery: Water Docket, EPA p.m., Monday through Friday, excluding be surveyed; and the criteria used to Docket Center, EPA West, Room 3334, holidays. The telephone number for the select them; 1301 Constitution Ave., NW., Public Reading Room is (202) 566–1744, (iv) Enhance the quality, utility, and Washington, DC, Attention Docket ID and the telephone number for the Water clarity of the information to be No. EPA–HQ–OW–2008–0517. Such Docket is (202) 566–2426. collected; and deliveries are only accepted during the FOR FURTHER INFORMATION CONTACT: (v) Minimize the burden of the Docket’s normal hours of operation and Meghan Hessenauer, Engineering and special arrangements should be made collection of information on those who Analysis Division, Office of Science and are to respond, including through the for deliveries of boxed information. Technology, Mail Code 4303T, Instructions: Direct your comments to use of appropriate automated electronic, Environmental Protection Agency, 1200 Docket ID No. EPA–HQ–OW–2008– mechanical, or other technological Pennsylvania Ave, NW., Washington, 0517. EPA’s policy is that all comments collection techniques or other forms of DC 20460; telephone number (202) 566– received will be included in the public information technology, e.g., permitting 1040; fax number (202) 566–1053; docket without change and may be electronic submission of responses. In e-mail address made available online at http:// particular, EPA is requesting comments [email protected] or Carey www.regulations.gov, including any from very small businesses (those that Johnston, Engineering and Analysis personal information provided, unless employ less than 25 people) on Division, Office of Science and the comment includes information examples of specific additional efforts claimed to be Confidential Business Technology, Mail Code 4303T, that EPA could make to reduce the Information (CBI) or other information Environmental Protection Agency, 1200 paperwork burden for very small whose disclosure is restricted by statute. Pennsylvania Ave, NW., Washington, businesses affected by this collection. DC 20460; telephone number (202) 566– Do not submit information through EPA solicits comments about the 1014; fax number (202) 566–1053; http://www.regulations.gov or e-mail questions in each questionnaire and e-mail address [email protected]. that you consider to be CBI or otherwise their applicability to the targeted protected. The federal http:// SUPPLEMENTARY INFORMATION: industry. EPA solicits suggestions on www.regulations.gov Web site is an How Can I Access the Docket and/or how the questions could be changed to ‘‘anonymous access’’ system, which Submit Comments? be more understandable and to means EPA will not know your identity appropriately address facility or contact information unless you EPA has established a public docket operations. EPA solicits comments provide it in the body of your comment. for this ICR under Docket ID No. EPA– about the scope of the ICR and whether If you submit an electronic comment, HQ–OW–2008–0517, which is available EPA has adequately described the EPA recommends that you include your for online viewing at http:// industry sectors that would be subject to name and other contact information in www.regulations.gov, or in person at the the data collection. EPA plans to the body of your comment and with any Water Docket in the EPA Docket Center include health services establishments disk or CD–ROM you submit. If you (EPA/DC), EPA West, Room 3334, 1301 including hospitals, hospices, long-term send an e-mail comment directly to EPA Constitution Ave., NW., Washington, care facilities (LTCFs), and veterinary without going through http:// DC. The EPA/DC Public Reading Room facilities. EPA may consider including www.regulations.gov, your e-mail is open from 8 a.m. to 4:30 p.m., veterinary clinics, medical and dental address will be automatically captured Monday through Friday, excluding offices, as well as university and prison and included as part of the comment holidays. The telephone number for the health clinics within the scope of that is placed in the public docket and Water Docket is (202) 566–2426. Use inquiry and encourages these groups to made available on the Internet. If EPA http://www.regulations.gov to obtain a comment and meet with EPA to discuss cannot read your comment due to copy of the draft collection of their practices. EPA solicits comments technical difficulties and cannot contact information, submit or view public on whether EPA has adequately you for clarification, EPA may not be comments, access the index listing of described the population in terms of able to consider your comment. the contents of the docket, and to access inclusions and exclusions, and what Electronic files should avoid the use of those documents in the public docket additional entities, if any, should be special characters, any form of that are available electronically. included in the scope of the ICR. In encryption, and be free of any defects or What Information is EPA Particularly DCN 05999 (Docket ID No. EPA–HQ– viruses. Interested in? OW–2008–0517), EPA provides more Docket: All documents in the docket explanation about its definitions and Pursuant to section 3506(c)(2)(A) of are listed in the index at http:// other considerations related to the Paperwork Reduction Act, EPA www.regulations.gov. Although listed in identifying the appropriate population specifically solicits comments and the index, some information is not for the data collection. publicly available, i.e., CBI or other information to enable it to: information whose disclosure is (i) Evaluate whether the proposed What Should I Consider When I restricted by statute. Certain other collection of information is necessary Prepare My Comments for EPA? material, such as copyrighted material, for the proper performance of the is not placed on the Internet and will be functions of the Agency, including You may find the following publicly available only in hard copy whether the information will have suggestions helpful for preparing your form. Publicly available docket practical utility; comments: materials are available either (ii) Evaluate the accuracy of the 1. Explain your views as clearly as electronically at http:// Agency’s estimate of the burden of the possible and provide specific examples. www.regulations.gov or in hard copy at proposed collection of information, 2. Describe any assumptions that you the Water Docket in the EPA Docket including the assumptions used; used.

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3. Provide copies of any technical Guidelines Review (71 FR 76661; development of a tracking system for information and/or data you used that December 21, 2006). EPA is collecting unused pharmaceuticals and time to support your views. information about disposal of unused train staff on proper tracking protocols. 4. If you estimate potential burden or pharmaceuticals to better understand EPA estimates the total respondent costs, explain how you arrived at the the current management practices and burden and costs associated with estimate that you provide. the magnitude of discharges to waters of completing the questionnaires are 5. Offer alternative ways to improve the United States. approximately 145,000 hours and the collection activity. In most respects, the discharge of $5,200,000. There are no capital costs 6. Make sure to submit your pharmaceuticals to publicly owned associated with responding to these comments by the deadline identified treatment works (POTWs) is not questionnaires. Operation and under DATES. currently regulated or monitored under maintenance (O&M) costs include only 7. To ensure proper receipt by EPA, the federal Clean Water Act and thus, photocopying and postage or express be sure to identify the docket ID number wastewater data are generally not delivery. In its calculations of the assigned to this action in the subject available. Facilities within the health burden estimates, EPA has assumed that line on the first page of your response. services industry (e.g., hospitals, one facility in seven (approximately You may also provide the name, date, hospices, long-term care facilities 3,500 facilities) would be selected to and Federal Register citation. (LTCFs), and veterinary facilities) may receive the detailed questionnaire. However, in the actual selection What Information Collection Activity or dispose of excess, expired, and process, EPA intends to use a more ICR Does This Apply to? unwanted medications (referred to collectively as ‘‘unused sophisticated statistical technique to Affected Entities: Entities potentially pharmaceuticals’’) down the drain or select facilities. Numerous textbooks affected by this action are health toilet, after which drugs may pass and technical journals describe a variety services establishments including through POTWs and into surface waters. of ways of drawing valid probability hospitals, hospices, long-term care EPA believes that the health services samples to collect information that will facilities (LTCFs), and veterinary industry accounts for the majority of be representative of the entire hospitals. In addition, EPA may include institutional (nonresidential) discharges population (e.g., Sampling Techniques veterinary clinics, medical and dental of unused pharmaceuticals to by William Cochran, 1963). In DCN offices, and university and prison health wastewater. Areas for investigation 05999 (Docket ID No. EPA–HQ–OW– clinics. include: 2008–0517), EPA describes several Title: Study of Unused • What are the current industry designs that it intends to investigate Pharmaceuticals from Medical and practices for disposing of unused further before the second Federal Veterinary Facilities (New). pharmaceuticals? Register notice. The selected sampling ICR Numbers: EPA ICR No. 2316.01, • Which pharmaceuticals are being methodology may result in a larger or OMB Control No. 2040–NEW. disposed of and at what quantities? smaller sample size. One sample design ICR Status: This ICR is for a new • What are the options for disposing that EPA is considering is a two-phase information collection activity. An of unused pharmaceuticals other than design. First, EPA would send a Agency may not conduct or sponsor, down the drain or toilet? screener questionnaire to a large and a person is not required to respond • What factors influence disposal segment of the population. This to, a collection of information, unless it decisions? screener questionnaire would only displays a currently valid OMB control • Do disposal practices differ within contain a few simple questions, but the number. The OMB control numbers for industry sectors? information would allow EPA to better EPA’s regulations in title 40 of the CFR, • What Best Management Practices identify appropriate facilities for the after appearing in the Federal Register (BMPs) could facilities implement to detailed questionnaire. Although EPA when approved, are listed in 40 CFR reduce the generation of unused might send more questionnaires (i.e., Part 9, are displayed either by pharmaceuticals? screeners plus detailed questionnaires) publication in the Federal Register or • What reductions in the quantities of under this approach, it might result in by other appropriate means, such as on pharmaceuticals discharged to POTWs a lower overall burden to industry if the related collection instrument or would be achieved by implementing fewer facilities were selected for the form, if applicable. The display of OMB BMPs or alternative disposal methods? detailed questionnaire. control numbers in certain EPA • What are the costs of current After evaluating comments, EPA will regulations is consolidated in 40 CFR disposal practices compared to the costs decide whether or not to include Part 9. of implementing BMPs or alternative veterinary clinics, medical and dental Abstract: This Information Collection disposal methods? offices, and university and prison health Request (ICR) will support EPA’s study To collect this information, EPA will clinics. EPA will then change the of unused pharmaceuticals from health distribute a mandatory questionnaire to estimated size of the respondent care facilities which is part of EPA’s a sample of medical and veterinary universe as needed. The public will overall strategy to address the risks facilities. There are two versions of the have an opportunity to comment on the associated with emerging contaminants. questionnaire, one tailored to facilities selected scope and methodology This four-pronged strategy is aimed at that treat people (i.e., hospitals, following publication of the second improving science, communicating hospices, and LTCFs) and one tailored Federal Register notice associated with risks, identifying partnership and to facilities that treat animals (i.e., this project. Respondents have the stewardship opportunities, and taking veterinary facilities). Copies of both option to identify any data submitted as regulatory action as appropriate. questionnaires are available as confidential. EPA will treat all This ICR involved two questionnaires, attachments to the supporting confidential submissions according to one for medical facilities and one for statement. approved CBI procedures. veterinary facilities. EPA identified the To complete the questionnaire, Burden Statement: The annual public health services industry as a candidate respondents will be required to report reporting and recordkeeping burden for for a study in the 2006 Clean Water Act 30 days worth of pharmaceutical this collection of information is (CWA) Section 304(b) Effluent disposal data, which may require estimated to average 41 hours per

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response. Burden means the total time, ENVIRONMENTAL PROTECTION www.regulations.gov or e-mail. The effort, or financial resources expended AGENCY http://www.regulations.gov Web site is an ‘‘anonymous access’’ system, which by persons to generate, maintain, retain, [EPA–HQ–RCRA–2007–0480; FRL–8702–4] or disclose or provide information to, or means EPA will not know your identity for, a Federal agency. This includes the Agency Information Collection or contact information unless you time needed to review instructions; Activities; Proposed Collection; provide it in the body of your comment. develop, acquire, install, and utilize Comment Request; Comprehensive If you send an e-mail comment directly technology and systems for the purposes Procurement Guidelines Supplier to EPA without going through http:// of collecting, validating, and verifying Directory Information Form; EPA ICR www.regulations.gov your e-mail information, processing and No. 2305.01, OMB Control No. 2050– address will be automatically captured maintaining information, and disclosing NEW and included as part of the comment and providing information; adjust the that is placed in the public docket and AGENCY: Environmental Protection made available on the Internet. If you existing ways to comply with any Agency (EPA). submit an electronic comment, EPA previously applicable instructions and ACTION: Notice. recommends that you include your requirements which have subsequently name and other contact information in changed; train personnel to be able to SUMMARY: In compliance with the the body of your comment and with any respond to a collection of information; Paperwork Reduction Act (PRA) (44 disk or CD–ROM you submit. If EPA search data sources; complete and U.S.C. 3501 et seq.), this document cannot read your comment due to review the collection of information; announces that EPA is planning to technical difficulties and cannot contact and transmit or otherwise disclose the submit a request for a new Information you for clarification, EPA may not be information. Collection Request (ICR) to the Office of able to consider your comment. EPA estimates that the total annual Management and Budget (OMB). Before Electronic files should avoid the use of burden hours would be approximately submitting the ICR to OMB for review special characters, any form of 145,000 at a cost of $5,200,000. and approval, EPA is soliciting encryption, and be free of any defects or Additional details on burden can be comments on specific aspects of the viruses. For additional information found in the supporting statement. An proposed information collection as about EPA’s public docket visit the EPA described below. overview of the questionnaire burden is Docket Center homepage at http:// provided below: DATES: Comments must be submitted on www.epa.gov/epahome/dockets.htm. or before October 14, 2008. FOR FURTHER INFORMATION CONTACT: • Estimated total number of potential ADDRESSES: Submit your comments, Anthony D. Carrell, Office of Solid respondents: 3,544. identified by Docket ID No. EPA–HQ– Waste, Municipal and Industrial Solid • Frequency of response: 1 time. RCRA–2007–0480, by one of the Waste Division, MC–5306P, • Estimated total average number of following methods: Environmental Protection Agency, 1200 responses for each respondent: 1. • http://www.regulations.gov: Follow Pennsylvania Ave., NW., Washington, the on-line instructions for submitting DC 20460; telephone number: 703–308– • Estimated total annual burden comments. 0458; fax number: 703–605–0595; hours: 145,304. • E-mail: [email protected]. [email protected]. • • Average burden hours per Fax: 202–566–9744. SUPPLEMENTARY INFORMATION: respondent: 41. • Mail: Resource Conservation and How Can I Access the Docket and/or • Average cost per respondent: Recovery Act (RCRA) Docket, Submit Comments? $1,463. Environmental Protection Agency, Mail Code: 28221T, 1200 Pennsylvania Ave., EPA has established a public docket What Is the Next Step in the Process for NW., Washington, DC 20460. for this ICR under Docket ID No. EPA– This ICR? • Hand Delivery: EPA Docket Center, HQ–RCRA–2007–0480 which is Public Reading Room, EPA West available for online viewing at http:// EPA will consider the comments Building, Room 3334, 1301 Constitution www.regulations.gov, or in person received and amend the ICR as Avenue, NW., Washington, DC 20004. viewing at the RCRA Docket in the EPA appropriate. The final ICR package will Such deliveries are only accepted Docket Center (EPA/DC), EPA West, then be submitted to OMB for review during the Docket’s normal hours of Room 3334, 1301 Constitution Ave., and approval pursuant to 5 CFR operation, and special arrangements NW., Washington, DC. The EPA/DC 1320.12. At that time, EPA will issue should be made for deliveries of boxed Public Reading Room is open from 8:30 another Federal Register notice information. a.m. to 4:30 p.m., Monday through pursuant to 5 CFR 1320.5(a)(1)(iv) to Instructions: Direct your comments to Friday, excluding legal holidays. The announce the submission of the ICR to Docket ID No EPA–HQ–RCRA–2007– telephone number for the Reading Room OMB and the opportunity to submit 0480 EPA’s policy is that all comments is 202–566–1744, and the telephone additional comments to OMB. If you received will be included in the public number for the RCRA Docket is 202– have any questions about this ICR or the docket without change and may be 566–0270. approval process, please contact the made available online at http:// Use http://www.regulations.gov to technical persons listed under FOR www.regulations.gov, including any obtain a copy of the draft collection of FURTHER INFORMATION CONTACT. personal information provided, unless information, submit or view public the comment includes information comments, access the index listing of Dated: July 25, 2008. claimed to be Confidential Business the contents of the docket, and to access Ephraim S. King, Information (CBI) or other information those documents in the public docket Director, Office of Science and Technology. whose disclosure is restricted by statute. that are available electronically. Once in [FR Doc. E8–18606 Filed 8–11–08; 8:45 am] Do not submit information that you the system, select ‘‘search,’’ then key in BILLING CODE 6560–50–P consider to be CBI or otherwise the docket ID number identified in this protected through http:// document.

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What Information is EPA Particularly Title: Comprehensive Procurement by e-mail. EPA would then reflect the Interested in? Guidelines Supplier Directory updates in the Directory as appropriate. Pursuant to section 3506(c)(2)(A) of Information Form. Burden Statement: The average the PRA, EPA specifically solicits ICR numbers: EPA ICR No. 2305.01, annual public reporting and comments and information to enable it OMB Control No. 2050–NEW. recordkeeping burden for EPA’s to: ICR status: This ICR is for a new proposed collections is estimated to be (i) Evaluate whether the proposed information collection activity. An about 30 minutes per response. All collection of information is necessary Agency may not conduct or sponsor, responses are voluntary. Burden means for the proper performance of the and a person is not required to respond the total time, effort, or financial functions of the Agency, including to, a collection of information, unless it resources expended by persons to whether the information will have displays a currently valid OMB control generate, maintain, retain, or disclose or practical utility; number. The OMB control numbers for provide information to or for a Federal (ii) Evaluate the accuracy of the EPA’s regulations in title 40 of the CFR, agency. This includes the time needed Agency’s estimate of the burden of the after appearing in the Federal Register to review instructions; develop, acquire, proposed collection of information, when approved, are listed in 40 CFR install, and utilize technology and including the validity of the Part 9, are displayed either by systems for the purposes of collecting, methodology and assumptions used; publication in the Federal Register or validating, and verifying information, (iii) Enhance the quality, utility, and by other appropriate means, such as on processing and maintaining clarity of the information to be the related collection instrument or information, and disclosing and collected; and form, if applicable. The display of OMB providing information, adjust the (iv) Minimize the burden of the control numbers in certain EPA existing ways to comply with any collection of information on those who regulations is consolidated in 40 CFR previously applicable instructions and are to respond, including through the Part 9. requirements which have subsequently use of appropriate automated electronic, Abstract: The Comprehensive changed; train personnel to be able to mechanical, or other technological Procurement Guideline (CPG) program respond to a collection of information; collection techniques or other forms of is authorized by Congress under Section search data sources; complete and information technology, e.g., permitting 6002 of the Resource Conservation and review the collection of information; electronic submission of responses. In Recovery Act (RCRA). EPA is required and transmit or otherwise disclose the particular, EPA is requesting comments to designate products that are or can be information. from very small businesses (those that made with recovered materials, and to The ICR will provide a detailed employ less than 25) on examples of recommend practices for buying these explanation of the Agency’s estimate, specific additional efforts that EPA products. which is only briefly summarized here: could make to reduce the paperwork As part of the program, EPA has burden for very small businesses developed the CPG Product Supplier Estimated average annual number of affected by this collection. Directory to support government respondents: 641. agencies in meeting their Average frequency of response: Once What Should I Consider when I Prepare every two years. My Comments for EPA? responsibilities. The CPG Product Supplier Directory allows users to Estimated total average annual You may find the following search for companies of a specific CPG respondent burden hours: 458 hours. suggestions helpful for preparing your product, product category, or type of Estimated total average annual costs: comments: material. In addition, users can search 1. Explain your views as clearly as $31,239. This includes an estimated directly for a specific company by labor cost of $31,239 and $0 for capital possible and provide specific examples. typing all or part of the company’s name 2. Describe any assumptions that you investment, maintenance, and in a search field. All companies operational costs. used. identified in the CPG Product Supplier 3. Provide copies of any technical Directory have self-selected to be What is the Next Step in the Process for information and/or data you used that included and volunteered product this ICR? support your views. specification information. All 4. If you estimate potential burden or EPA will consider the comments information in the Directory is available costs, explain how you arrived at the received and amend the ICR as to the public. estimate that you provide. appropriate. The final ICR package will 5. Offer alternative ways to improve EPA would like to update the CPG then be submitted to OMB for review the collection activity. Product Supplier Directory through and approval pursuant to 5 CFR 6. Make sure to submit your voluntary information collections, as 1320.12. At that time, EPA will issue comments by the deadline identified follows: another Federal Register notice • under DATES. EPA has created a Supplier pursuant to 5 CFR 1320.5(a)(1)(iv) to 7. To ensure proper receipt by EPA, Directory Information Form to enable announce the submission of the ICR to be sure to identify the docket ID number companies to submit information to the OMB and the opportunity to submit assigned to this action in the subject CPG Product Supplier Directory about additional comments to OMB. If you line on the first page of your response. their company and products. The form have any questions about this ICR or the You may also provide the name, date, would be available on-line so that approval process, please contact the and Federal Register citation. companies can submit this information technical person listed under FOR at any time. FURTHER INFORMATION CONTACT. What Information Collection Activity or • EPA intends to send a letter to the ICR Does this Apply to? companies in the CPG Product Supplier Dated: July 10, 2008. Affected entities: Companies that Directory every two years, asking them Matthew Hale, voluntarily submit product information to update their entries in the Directory Director, Office of Solid Waste. to EPA’s CPG Product Supplier as needed. Companies would review [FR Doc. E8–18611 Filed 8–11–08; 8:45 am] Directory. their entries and send updates to EPA BILLING CODE 6560–50–P

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ENVIRONMENTAL PROTECTION SUPPLEMENTARY INFORMATION: initial draft materials prepared in the development of the ISA and AGENCY I. Information About the Document supplementary annexes for oxides of [FRL–8702–8; Docket ID No. EPA–HQ–OAR– Section 108 (a) of the Clean Air Act nitrogen and sulfur. EPA’s ‘‘Draft Plan 2007–1145] directs the Administrator to identify for Review of the Secondary National Draft Integrated Science Assessment certain pollutants which ‘‘cause or Ambient Air Quality Standards for for Oxides of Nitrogen and Sulfur— contribute to air pollution which may Nitrogen Dioxide and Sulfur Dioxide’’ Environmental Criteria; Second reasonably be anticipated to endanger was made available in September 2007 External Review Draft public health and welfare’’ and to issue for public comment and was discussed air quality criteria for them. These air by the Clean Air Scientific Advisory AGENCY: Environmental Protection quality criteria are to ‘‘accurately reflect Committee (CASAC) via a publicly Agency. the latest scientific knowledge useful in accessible teleconference consultation ACTION: Notice of Public Comment indicating the kind and extent of all on October 30, 2007 (72 FR 57568). The Period on Draft Integrated Science identifiable effects on public health or Plan was made available on EPA’s Web Assessment for Oxides of Nitrogen and welfare which may be expected from the site http://www.epa.gov/ttn/naaqs/ Sulfur—Environmental Criteria. presence of [a] pollutant in the ambient standards/no2so2sec/cr_pd.html. The air* * *.’’ Under section 109 of the Act, draft ‘‘Integrated Science Assessment for SUMMARY: The U.S. Environmental EPA is then to establish national Oxides of Nitrogen and Sulfur— Protection Agency (EPA) is announcing ambient air quality standards (NAAQS) Environmental Criteria; First External the availability of the second external for each pollutant for which EPA has Review Draft’’ was released for review review draft of a document titled, issued criteria. Section 109(d) of the Act on December 21, 2007 (72 FR 72719). ‘‘Integrated Science Assessment for subsequently requires periodic review The CASAC reviewed the draft Oxides of Nitrogen and Sulfur— and, if appropriate, revision of existing document at a public peer review Environmental Criteria; Second External air quality criteria to reflect advances in meeting on April 2–3, 2008; comments Review Draft’’ (EPA/600/R–08/082). scientific knowledge on the effects of from the CASAC and the public have EPA is releasing this draft document the pollutant on public health and been addressed in this second external solely for the purpose of seeking public welfare. EPA is also to revise the review draft document. The draft comment and for review by the Clean NAAQS, if appropriate, based on the ‘‘Integrated Science Assessment for Air Scientific Advisory Committee revised air quality criteria. Oxides of Nitrogen and Sulfur— (CASAC) (meeting date and location to Oxides of nitrogen and sulfur are two Environmental Criteria; Second External be specified in a separate Federal of six principal (or ‘‘criteria’’) pollutants Review Draft’’ will be discussed by Register notice). It does not represent for which EPA has established air CASAC at a future public meeting; and should not be construed to quality criteria and NAAQS. EPA public comments that have been represent any Agency policy, viewpoint, periodically reviews the scientific basis received prior to the public meeting will or determination. EPA will consider any for these standards by preparing an be provided to the CASAC review panel. public comments submitted in Integrated Science Assessment (ISA) A future Federal Register notice will accordance with this notice when (formerly called an Air Quality Criteria inform the public of the exact date and revising the document. Document). The ISA and supplementary time of that CASAC meeting. annexes, in conjunction with additional DATES: The public comment period technical and policy assessments, II. How To Submit Technical Comments begins on or about August 11, 2008. provide the scientific basis for EPA to the Docket at http:// Comments must be received on or decisions on the adequacy of a current www.regulations.gov before October 1, 2008. NAAQS and the appropriateness of new Submit your comments, identified by ADDRESSES: The ‘‘Integrated Science or revised standards. The Clean Air Docket ID No. EPA–HQ–OAR–2007– Assessment for Oxides of Nitrogen and Scientific Advisory Committee Sulfur—Environmental Criteria; Second 1145, by one of the following methods: (CASAC), an independent science • http://www.regulations.gov: Follow External Review Draft’’ will be available advisory committee established the on-line instructions for submitting primarily via the Internet on the pursuant to section 109 of the Clean Air comments. National Center for Environmental Act and part of the EPA’s Science • E-mail: [email protected]. Assessment’s home page under the Advisory Board (SAB), provides • Fax: 202–566–1753. Recent Additions and Publications independent scientific advice on • Mail: Office of Environmental menus at http://www.epa.gov/ncea. A NAAQS matters, including advice on Information (OEI) Docket (Mail Code: limited number of CD–ROM or paper EPA’s draft ISAs. 2822T), U.S. Environmental Protection copies will be available. Contact Ms. EPA formally initiated its current Agency, 1200 Pennsylvania Ave., NW., Ellen Lorang by phone (919–541–2771), review of the criteria for oxides of Washington, DC 20460. The phone fax (919–541–5078), or e-mail nitrogen and sulfur in December 2005 number is 202–566–1752. ([email protected]) to request either (70 FR 73236) and May 2006 (71 FR • Hand Delivery: The OEI Docket is of these, and please provide your name, 28023) respectively, requesting the located in the EPA Headquarters Docket your mailing address, and the document submission of recent scientific Center, Room 3334 EPA West Building, title, ‘‘Integrated Science Assessment for information on specified topics. In the 1301 Constitution Ave., NW., Oxides of Nitrogen and Sulfur— initial stages of the criteria reviews, EPA Washington, DC. The EPA Docket Environmental Criteria; Second External recognized the merit of integrating the Center Public Reading Room is open Review Draft’’ (EPA/600/R–08/082) to science assessment for these two from 8:30 a.m. to 4:30 p.m., Monday facilitate processing of your request. pollutants due to their combined effects through Friday, excluding legal FOR FURTHER INFORMATION CONTACT: For on atmospheric chemistry, deposition holidays. The telephone number for the technical information, contact Dr. Tara processes, and environment-related Public Reading Room is 202–566–1744. Greaver, NCEA; telephone: 919–541– public welfare effects. In July 2007 (72 Such deliveries are only accepted 2435; facsimile: 919–541–5078; or FR 34004), a workshop was held to during the docket’s normal hours of e-mail: [email protected]. discuss, with invited scientific experts, operation, and special arrangements

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should be made for deliveries of boxed www.regulations.gov or in hard copy at a. Monthly Participant Activity Report information. the OEI Docket in the EPA Headquarters b. Legislative Report If you provide comments by mail or Docket Center. c. Investment Performance Report 3. Report on Potential Risk of Loss to hand delivery, please submit three Dated: August 1, 2008. copies of the comments. For TSP Assets as a result of the Rebecca Clark, attachments, provide an index, number Theoretical Insolvency of Barclays pages consecutively with the comments, Acting Director, National Center for Global Investors and submit an unbound original and Environmental Assessment. Parts Closed to the Public three copies. [FR Doc. E8–18610 Filed 8–11–08; 8:45 am] Instructions: Direct your comments to BILLING CODE 6560–50–P 4. Procurement Docket ID No. EPA–HQ–OAR–007– CONTACT PERSON FOR MORE INFORMATION: 1145. Please ensure that your comments Thomas J. Trabucco, Director, Office of are submitted within the specified FEDERAL RESERVE SYSTEM External Affairs, (202) 942–1640. comment period. Comments received Dated: August 8, 2008. after the closing date will be marked Change in Bank Control Notices, Thomas K. Emswiler, ‘‘late,’’ and may only be considered if Acquisition of Shares of Bank or Bank time permits. It is EPA’s policy to Holding Companies; Correction Secretary, Federal Retirement Thrift Investment Board. include all comments it receives in the This notice corrects a notice (FR Doc. public docket without change and to [FR Doc. E8–18682 Filed 8–8–08; 12:00 pm] E8–18107 published on pages 46005 BILLING CODE 6760–01–P make the comments available online at and 46006 of the issue for Thursday, http://www.regulations.gov, including August 7, 2008. any personal information provided, Under the Federal Reserve Bank of DEPARTMENT OF HEALTH AND unless a comment includes information Kansas City heading, the entry for The HUMAN SERVICES claimed to be Confidential Business Schifferdecker Limited Partnersip, Information (CBI) or other information Girard, Kansas, is revised to read as Food and Drug Administration whose disclosure is restricted by statute. follows: Do not submit information that you A. Federal Reserve Bank of Kansas [Docket No. FDA–2008–N–0439 ] consider to be CBI or otherwise City (Todd Offenbacker, Assistant Vice protected through http:// President) 1 Memorial Drive, Kansas Agency Information Collection www.regulations.gov or e-mail. The City, Missouri 64198–0001: Activities; Proposed Collection; http://www.regulations.gov Web site is 1. The Schifferdecker Limited Comment Request; Blood an ‘‘anonymous access’’ system, which Partnership, Girard, Kansas; Mark W. Establishment Registration and means EPA will not know your identity Schifferdecker, Girard, Kansas; Susan B. Product Listing, Form FDA 2830 or contact information unless you Friesen, Omaha, Nebraska; and Joy L. AGENCY: Food and Drug Administration, provide it in the body of your comment. Shoop, Hiawatha, Kansas; as general If you send an e-mail comment directly HHS. partners, to acquire control of GN ACTION: Notice. to EPA without going through http:// Bankshares, Inc., and thereby indirectly www.regulations.gov, your e-mail aacquire control of The Girard National SUMMARY: The Food and Drug address will be automatically captured Bank, both in Girard, Kansas. Administration (FDA) is announcing an and included as part of the comment Comments on this application must opportunity for public comment on the that is placed in the public docket and be received by August 21, 2008. proposed collection of certain made available on the Internet. If you information by the agency. Under the submit an electronic comment, EPA Board of Governors of the Federal Reserve Paperwork Reduction Act of 1995 (the recommends that you include your System, August 7, 2008. PRA), Federal agencies are required to name and other contact information in Robert deV. Frierson, publish notice in the Federal Register the body of your comment and with any Deputy Secretary of the Board. concerning each proposed collection of disk or CD–ROM you submit. If EPA [FR Doc. E8–18554 Filed 8–11–08; 8:45 am] information, including each proposed cannot read your comment due to BILLING CODE 6210–01–S extension of an existing collection of technical difficulties and cannot contact information, and to allow 60 days for you for clarification, EPA may not be public comment in response to the able to consider your comment. FEDERAL RETIREMENT THRIFT notice. This notice solicits comments on Electronic files should avoid the use of INVESTMENT BOARD special characters, any form of the information collection requirements encryption, and be free of any defects or Sunshine Act; Notice of Meeting relating to the blood establishment viruses. For additional information registration and product listing about EPA’s public docket visit the EPA TIME AND DATE: 10 a.m. (Eastern Time), requirements in the agency’s regulations Docket Center homepage at http:// August 18, 2008. and Form FDA 2830. www.epa.gov/epahome/dockets.htm. PLACE: 4th Floor Conference Room, DATES: Submit written or electronic Docket: Documents in the docket are 1250 H Street, NW., Washington, DC comments on the collection of listed in the http://www.regulations.gov 20005. information by October 14, 2008. index. Although listed in the index, STATUS: Parts will be open to the public ADDRESSES: Submit electronic some information is not publicly and parts closed to the public. comments on the collection of available, e.g., CBI or other information MATTERS TO BE CONSIDERED: information to http:// whose disclosure is restricted by statute. www.regulations.gov. Submit written Certain other materials, such as Parts Open to the Public comments on the collection of copyrighted material, are publicly 1. Approval of the minutes of the July information to the Division of Dockets available only in hard copy. Publicly 21, 2008 Board member meeting Management (HFA–305), Food and Drug available docket materials are available 2. Thrift Savings Plan activity report by Administration, 5630 Fishers Lane, rm. either electronically in http:// the Executive Director 1061, Rockville, MD 20852. All

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comments should be identified with the Blood Establishment Registration and for annual registration, and for blood docket number found in brackets in the Product Listing, Form FDA 2830—21 product listing. Section 607.25 indicates heading of this document. CFR Part 607 (OMB Control Number the information required for FOR FURTHER INFORMATION CONTACT: 0910–0052)—Extension establishment registration and blood Jonna Capezzuto, Office of Information Under section 510 of the Federal product listing. Section 607.26, in brief, Management (HFA–710), Food and Drug Food, Drug, and Cosmetic Act (21 U.S.C. requires certain changes to be submitted Administration, 5600 Fishers Lane, 360), any person owning or operating an on FDA Form 2830 as amendments to Rockville, MD 20857, 301–796–3794. establishment that manufactures, the establishment registration within 5 SUPPLEMENTARY INFORMATION: Under the prepares, propagates, compounds, or days of such changes. Section 607.30(a), PRA (44 U.S.C. 3501–3520), Federal processes a drug or device must register in brief, indicates the information agencies must obtain approval from the with the Secretary of Health and Human required for owners or operators of Office of Management and Budget Services, on or before December 31 of establishments to update their blood (OMB) for each collection of each year, his or her name, place of product listing information every June information they conduct or sponsor. business, and all such establishments, and December, or at the discretion of the ‘‘Collection of information’’ is defined and must submit, among other registrant at the time the change occurs. in 44 U.S.C. 3502(3) and 5 CFR information, a listing of all drug or Section 607.31 requires that additional 1320.3(c) and includes agency requests device products manufactured, blood product listing information be or requirements that members of the prepared, propagated, compounded, or provided upon FDA request. Section public submit reports, keep records, or processed by him or her for commercial 607.40, in brief, requires certain foreign provide information to a third party. distribution. In part 607 (21 CFR part blood product establishments to register Section 3506(c)(2)(A) of the PRA (44 607), FDA has issued regulations and submit the blood product listing U.S.C. 3506(c)(2)(A)) requires Federal implementing these requirements for information, and to provide the name agencies to provide a 60-day notice in manufacturers of human blood and and address of the establishment and the Federal Register concerning each blood products. the name of the individual responsible proposed collection of information, Section 607.20(a), in brief, requires for submitting blood product listing including each proposed extension of an owners or operators of certain information as well as the name, existing collection of information, establishments that engage in the address, and phone number of its U.S. before submitting the collection to OMB manufacture of blood products to agent. for approval. To comply with this register and to submit a list of every Among other uses, this information requirement, FDA is publishing notice blood product in commercial assists FDA in its inspections of of the proposed collection of distribution. Section 607.21, in brief, facilities, and its collection is essential information set forth in this document. requires the owners or operators of to the overall regulatory scheme With respect to the following establishments entering into the designed to ensure the safety of the collection of information, FDA invites manufacturing of blood products to nation’s blood supply. Form FDA 2830 comments on these topics: (1) Whether register within 5 days after beginning is used to collect this information. the proposed collection of information such operation and to submit a list of Respondents to this collection of is necessary for the proper performance every blood product in commercial information are human blood and of FDA’s functions, including whether distribution at the time. If the owner or plasma donor centers, blood banks, the information will have practical operator of the establishment has not certain transfusion services, other blood utility; (2) the accuracy of FDA’s previously entered into such operation product manufacturers, and estimate of the burden of the proposed for which a license is required, independent laboratories that engage in collection of information, including the registration must follow within 5 days quality control and testing for registered validity of the methodology and after the submission of a biologics blood product establishments. assumptions used; (3) ways to enhance license application. In addition, FDA estimates the burden of this the quality, utility, and clarity of the establishments are required to register collection of information based upon information to be collected; and (4) annually between November 15 and information obtained from FDA’s Center ways to minimize the burden of the December 31 and update their blood for Biologics Evaluation and Research’s collection of information on product listing every June and database and FDA experience with the respondents, including through the use December of each year. Section 607.22 blood establishment registration and of automated collection techniques, requires the use of Form FDA 2830, product listing requirements. when appropriate, and other forms of Blood Establishment Registration and FDA estimates the burden of this information technology. Product Listing, for initial registration, collection as follows:

TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN1

No. of Annual Frequency Total Annual Hours Per 21 CFR Section Form FDA 2830 Respondents per Response Responses Response Total Hours

607.20(a), 607.21, Initial Registration 111 1 111 1 111 607.22, 607.25, and 607.40

607.21, 607.22, 607.25, Re-registration 2,621 1 2,621 0.5 1,311 607.26, 607.31, and 607.40

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TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN1—Continued

No. of Annual Frequency Total Annual Hours Per 21 CFR Section Form FDA 2830 Respondents per Response Responses Response Total Hours

607.21, 607.25, Product Listing Up- 180 1 180 0.25 45 607.30(a), 607.31, and date 607.40

Total 1,467 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

Please note that on January 15, 2008, items are subject to change as priorities Date and Time: September 15, 2008, 10 the FDA Division of Dockets dictate. a.m.–1 p.m. Eastern Standard Time (EST). Management Web site transitioned to Public Comments: Persons interested in Place: (Audio Conference Call). the Federal Dockets Management providing an oral presentation should submit Status: The meeting will be open to the a written request, along with a copy of their public; audio conference access limited only System (FDMS). FDMS is a presentation to: Michelle Herzog, DVIC, by availability of telephone ports. Government-wide, electronic docket Healthcare Systems Bureau (HSB), Health Purpose: The Advisory Committee management system. Electronic Resources and Services Administration provides advice and recommendations on a comments or submissions will be (HRSA), Room 11C–26, 5600 Fishers Lane, broad range of issues dealing with programs accepted by FDA only through FDMS at Rockville, Maryland 20857 or e-mail: and activities authorized under section 747 http://www.regulations.gov. [email protected]. Requests should contain of the Public Health Service Act as amended the name, address, telephone number, and by The Health Professions Education Dated: August 5, 2008. any business or professional affiliation of the Partnership Act of 1998, Public Law 105– Jeffrey Shuren, person desiring to make an oral presentation. 392. At this meeting the Advisory Committee Associate Commissioner for Policy and Groups having similar interests are requested will finalize its seventh report on the topic Planning. to combine their comments and present them of primary care providing a medical/dental through a single representative. The home within the health care system. It will [FR Doc. E8–18570 Filed 8–11–08; 8:45 am] begin work on its eighth report on the topic BILLING CODE 4160–01–S allocation of time may be adjusted to accommodate the level of expressed interest. of the redesign of primary care and its impact DVIC will notify each presenter by mail or on training and Title VII, section 747. Reports telephone of their assigned presentation time. are submitted to Congress and to the DEPARTMENT OF HEALTH AND Secretary of the Department of Health and Persons who do not file an advance request Human Services. HUMAN SERVICES for a presentation, but desire to make an oral Agenda: The agenda includes final statement, may announce it at the time of the approval of the recommendations and Health Resources and Services comment period. These persons will be Administration finalization of the seventh report as a whole. allocated time as it permits. The Advisory Committee will plan the Advisory Commission on Childhood FOR FURTHER INFORMATION CONTACT: process for completion of the eighth report Vaccines; Notice of Meeting Anyone requiring information regarding on the redesign of primary care training. An opportunity will be provided for public the ACCV should contact Michelle In accordance with section 10(a)(2) of comment. Agenda items are subject to change Herzog, DVIC, HSB, HRSA, Room 11C– as dictated by the priorities of the Advisory the Federal Advisory Committee Act 26, 5600 Fishers Lane, Rockville, MD (Pub. L. 92–463), notice is hereby given Committee. 20857; telephone (301) 443–6593 or e- Supplementary Information: The of the following meeting: mail: [email protected]. ACTPCMD will convene on Monday, Name: Advisory Commission on September 15 from 10 a.m. to 1 p.m. EST via Dated: August 7, 2008. Childhood Vaccines (ACCV). audio conference. To participate in this audio Date and Time: September 4, 2008, 1 p.m. Alexandra Huttinger, conference call, please dial the toll-free to 5 p.m. EDT. September 5, 2008, 8 a.m. to Director, Division of Policy Review and number 1–800–475–0478 and provide the 12 p.m. EDT. Coordination. numeric passcode: 2219205. Anyone Place: Parklawn Building (and via audio [FR Doc. E8–18630 Filed 8–11–08; 8:45 am] interested in participating in the audio conference call), Conference Rooms G & H, conference should notify either Jerilyn K. BILLING CODE 4165–15–P 5600 Fishers Lane, Rockville, MD 20857. Glass, M.D., Ph.D., or Anne F. Patterson by The ACCV will meet on Thursday, calling 301–443–6822 prior to September 8. September 4 from 1 p.m. to 5 p.m. (EDT) and For Further Information Contact: Anyone Friday, September 5 from 9 a.m. to 12 p.m. DEPARTMENT OF HEALTH AND requesting information regarding the (EDT). The public can join the meeting via HUMAN SERVICES Advisory Committee should contact Jerilyn audio conference call by dialing 1–888–220– K. Glass, Designated Federal Official for the 3083 on September 4 & 5 and providing the Health Resources and Services ACTPCMD, Bureau of Health Professions, following information: Administration Health Resources and Services Leader’s Name: Dr. Geoffrey Evans. Administration, Room 9A–27, Parklawn Password: ACCV. Advisory Committee on Training in Building, 5600 Fishers Lane, Rockville, Agenda: The agenda items for the Primary Care Medicine and Dentistry; Maryland 20857, Telephone (301) 443–6822. September meeting will include, but are not Notice of Meeting The Web address for information on the limited to: updates from the Division of Advisory Committee is http://bhpr.hrsa.gov/ Vaccine Injury Compensation (DVIC), In accordance with section 10(a)(2) of medicine-dentistry/actpcmd. Department of Justice, National Vaccine the Federal Advisory Committee Act Dated: August 7, 2008. Program Office, Immunization Safety Office (Pub. L. 92–463), notice is hereby given Alexandra Huttinger, (Centers for Disease Control and Prevention), National Institute of Allergy and Infectious of the following meeting: Director, Division of Policy Review and Diseases (National Institutes of Health), and Name: Advisory Committee on Training in Coordination. Center for Biologics, Evaluation and Research Primary Care Medicine and Dentistry [FR Doc. E8–18631 Filed 8–11–08; 8:45 am] (Food and Drug Administration). Agenda (ACTPCMD). BILLING CODE 4165–15–P

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DEPARTMENT OF HEALTH AND Scientific Review, National Institutes of The comment period is reopened from HUMAN SERVICES Health, 6701 Rockledge Drive, Room 5184, August 12, 2008 to December 15, 2008. MSC 7844, Bethesda, MD 20892, (301) 435– ADDRESSES: 1242, [email protected]. The Coast Guard will hold National Institutes of Health these public meetings in conjunction Name of Committee: Endocrinology, with the Pacific Marine Expo in Seattle, Center for Scientific Review; Notice of Metabolism, Nutrition and Reproductive Closed Meetings Sciences Integrated Review Group; WA, at the Qwest Field Event Center, Integrative and Clinical Endocrinology and 800 Occidental Ave S, Seattle, WA Pursuant to section 10(d) of the Reproduction Study Section. 98134. Federal Advisory Committee Act, as Date: September 25, 2008. You may submit comments identified amended (5 U.S.C. Appendix 2), notice Time: 8 a.m. to 6 p.m. by Coast Guard docket number USCG– is hereby given of the following Agenda: To review and evaluate grant 2003–16158 to the Docket Management meetings. applications. Facility at the U.S. Department of The meetings will be closed to the Place: The Legacy Hotel, 1775 Rockville Transportation. To avoid duplication, Pike, Rockville, MD 20852. public in accordance with the Contact Person: Michael Knecht, Ph.D., please use only one of the following provisions set forth in sections Scientific Review Officer, Center for methods: 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Scientific Review, National Institutes of (1) Online: http:// as amended. The grant applications and Health, 6701 Rockledge Drive, Room 6176, www.regulations.gov. the discussions could disclose MSC 7892, Bethesda, MD 20892, (301) 435– (2) Mail: Docket Management Facility confidential trade secrets or commercial 1046 [email protected]. (M–30), U.S. Department of property such as patentable material, (Catalogue of Federal Domestic Assistance Transportation, West Building Ground and personal information concerning Program Nos. 93.306, Comparative Medicine; Floor, Room W12–140, 1200 New Jersey individuals associated with the grant 93.333, Clinical Research, 93.306, 93.333, Avenue, SE., Washington, DC 20590– applications, the disclosure of which 93.337, 93.393–93.396, 93.837–93.844, 0001. would constitute a clearly unwarranted 93.846–93.878, 93.892, 93.893, National (3) Hand delivery: Same as mail Institutes of Health, HHS) invasion of personal privacy. address above, between 9 a.m. and 5 Dated: August 4, 2008. Name of Committee: Center for Scientific p.m., Monday through Friday, except Review Special Emphasis Panel; Microbial Anna Snouffer, Federal holidays. The telephone number Member Conflict. Deputy Director, Office of Federal Advisory is 202–366–9329. Date: August 26, 2008. Committee Policy. (4) Fax: 202–493–2251. Time: 12 p.m. to 4 p.m. [FR Doc. E8–18353 Filed 8–11–08; 8:45 am] FOR FURTHER INFORMATION CONTACT: If Agenda: To review and evaluate grant BILLING CODE 4140–01–M you have questions on this notice, call applications. Place: National Institutes of Health, 6701 M.M. Rosecrans, Chief, Fishing Vessel Rockledge Drive, Bethesda, MD 20892, Safety Division (CG–5433), U.S. Coast (Telephone Conference Call). DEPARTMENT OF HOMELAND Guard, telephone 202–372–1245, or e- Contact Person: Soheyla Saadi, PhD, SECURITY mail [email protected]. Scientific Review Officer, Center for If you have questions on viewing or Scientific Review, National Institutes of Coast Guard submitting material to the docket, call Health, 6701 Rockledge Drive, Room 3211, [Docket No. USCG–2003–16158] Renee V. Wright, Program Manager, MSC 7808 Bethesda, MD 20892, 301–435– Docket Operations, telephone 202–366– 0903, [email protected]. RIN 1625–AA77 This notice is being published less than 15 9826. SUPPLEMENTARY INFORMATION: days prior to the meeting due to the timing Commercial Fishing Industry Vessels limitations imposed by the review and Public Participation and Request for funding cycle. AGENCY: Coast Guard, DHS. Comments Name of Committee: Center for Scientific ACTION: Notice of public meetings; Review Special Emphasis Panel; Member reopening of comment period. We encourage you to submit Conflict: Health of the Population. comments and related material on the Date: September 5, 2008. SUMMARY: The Coast Guard will hold Commercial Fishing Industry Vessels Time: 12 p.m. to 3 p.m. public meetings to let members of the Agenda: To review and evaluate grant advance notice of proposed rulemaking applications. public present comments on the (ANPRM) published in the Federal Place: National Institutes of Health, 6701 advance notice of proposed rulemaking Register on March 31, 2008 (73 FR Rockledge Drive, Bethesda, MD 20892, (ANPRM) for commercial fishing 16815). All comments received will be (Virtual Meeting). industry vessels and reopen the posted, without change, to http:// Contact Person: Fungai F. Chanetsa, PhD previously announced public comment www.regulations.gov and will include Scientific Review Officer, Center for period. Two public meetings will be any personal information you have Scientific Review, National Institutes of held at the Pacific Marine Expo in Health, 6701 Rockledge Drive, Room 3135, provided. We have an agreement with MSC 7770, Bethesda, MD 20892, Seattle, WA, on November 21 and 22, the Department of Transportation to use 301–435–1262, [email protected]. 2008. This proposed rulemaking would the Docket Management Facility. Name of Committee: Center for Scientific consider several changes to the current Submitting comments: If you submit a Review, Special Emphasis Panel, Member regulations. comment, please include the docket Conflict: Sensory. DATES: The Coast Guard will hold the number for this notice (USCG–2003– Date: September 10–11, 2008. public meetings on Friday, November 16158), and give the reason for each Time: 8 a.m. to 5 p.m. 21, from 9 a.m. to 12 noon, and comment. You may submit your Agenda: To review and evaluate grant Saturday, November 22, from 9 a.m. to comments and material by electronic applications. 12 noon, except that the meetings may means, mail, fax, or delivery to the Place: National Institutes of Health, 6701 Rockledge Drive, Bethesda, MD 20892, close early if all business is finished. Docket Management Facility at the (Virtual Meeting). Other comments and related material address under ADDRESSES; but please Contact Person: Bernard F. Driscoll, PhD, must reach the Docket Management submit your comments and material by Scientific Review Officer, Center for Facility on or before December 15, 2008. only one means. We recommend that

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you include your name and a mailing in the ANPRM from August 12, 2008 to DEPARTMENT OF HOMELAND address, an e-mail address, or a phone December 15, 2008. SECURITY number in the body of your document Commercial fishing remains one of so that we can contact you if we have the most hazardous occupations in the Federal Emergency Management questions regarding your submission. If United States. Congress addressed this Agency you submit them by mail or delivery, problem by enacting the Commercial submit them in an unbound format, no Fishing Industry Vessel Safety Act of [FEMA–1776–DR] larger than 81⁄2 by 11 inches, suitable for 1988 (‘‘the 1988 Act,’’ Pub. L. 100–424, copying and electronic filing. If you as subsequently amended; see generally, Kansas; Amendment No. 1 to Notice of submit them by mail and would like to 46 U.S.C. chapter 45, ‘‘Uninspected a Major Disaster Declaration know that they reached the Facility, Commercial Fishing Industry Vessels’’). please enclose a stamped, self-addressed The Act directed the Secretary of AGENCY: Federal Emergency postcard or envelope. We will consider Transportation to provide safety Management Agency, DHS. all comments and material received requirements for fishing vessels, fish during the comment period. The processing vessels, and fish tender ACTION: Notice. comment period is hereby reopened; vessels. It also established the comments and related material must Commercial Fishing Industry Vessel SUMMARY: This notice amends the notice reach the Docket Management Facility Safety Advisory Committee (CFIVSAC) of a major disaster declaration for the on or before December 15, 2008. to advise the Secretary on matters State of Kansas (FEMA–1776–DR), dated Viewing the comments as well as relating to the safe operation of July 9, 2008, and related determinations. other background documents available commercial fishing vessels. DATES: in the docket: To view the comments Coast Guard regulations under the Effective Date: August 4, 2008. and other documents listed in the 1988 Act were first issued on August 14, FOR FURTHER INFORMATION CONTACT: ANPRM, go to http:// 1991 (56 FR 40364), and were further Peggy Miller, Disaster Assistance www.regulations.gov at any time. Enter addressed in the following documents: Directorate, Federal Emergency • the docket number for this notice August 3, 1992, interim rule (57 FR Management Agency, 500 C Street, SW., (USCG–2003–16158) in the Search box, 34188) that amended the 1991 Washington, DC 20472, (202) 646–3886. and click ‘‘Go >>.’’ If you do not have immersion suit requirements in 46 CFR access to the internet, you may view the 28.110, but advised the public that SUPPLEMENTARY INFORMATION: The notice docket online by visiting the Docket immersion suits would be the subject of of a major disaster declaration for the Management Facility in Room W12–140 further rulemaking; State of Kansas is hereby amended to on the ground floor of the Department • October 27, 1992, SNPRM (57 FR include the following areas among those of Transportation West Building, 1200 48670) that proposed the adoption of areas determined to have been adversely New Jersey Avenue SE., Washington, stability regulations for vessels less than affected by the catastrophe declared a DC 20590, between 9 a.m. and 5 p.m., 79 feet in length; major disaster by the President in his Monday through Friday, except Federal • May 20, 1993, NPRM (58 FR 29502) declaration of July 9, 2008. holidays. that proposed further changes to Privacy Act: Anyone can search the immersion suit requirements; Elk, Haskell, Reno, and Wilson Counties for Public Assistance. electronic form of all comments • October 24, 1995, final rule (60 FR received into any of our dockets by the 54441) that adopted regulations for (The following Catalog of Federal Domestic name of the individual submitting the Aleutian Trade Act vessels; Assistance Numbers (CFDA) are to be used comment (or signing the comment, if • November 5, 1996, interim rule (61 for reporting and drawing funds: 97.030, submitted on behalf of an association, FR 57268) that adopted safety Community Disaster Loans; 97.031, Cora business, labor union, etc.). You may equipment and vessel operating Brown Fund; 97.032, Crisis Counseling; review a Privacy Act, system of records procedure regulations and deferred 97.033, Disaster Legal Services; 97.034, notice regarding our public dockets in further action on the 1992 SNPRM’s Disaster Unemployment Assistance (DUA); the January 17, 2008 issue of the proposal to extend stability regulations 97.046, Fire Management Assistance Grant; Federal Register (73 FR 3316). to smaller vessels; 97.048, Disaster Housing Assistance to • September 4, 1997, final rule (62 FR Individuals and Households In Presidentially Procedural 46672) that finalized the 1996 Declared Disaster Areas; 97.049, These meetings are open to the regulations with some changes; and Presidentially Declared Disaster Assistance— public. Please note that the meetings • July 15, 1998, notice (63 FR 38141) Disaster Housing Operations for Individuals may close early if all business is that announced the termination of the and Households; 97.050, Presidentially finished. 1993 NPRM and the Coast Guard’s plans Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Information on Services for Individuals for a subsequent rulemaking to address immersion suits, vessel stability, and Disaster Grants—Public Assistance With Disabilities (Presidentially Declared Disasters); 97.039, other commercial fishing industry Hazard Mitigation Grant.) For information on facilities or vessel issues. services for individuals with disabilities These documents, as well as other R. David Paulison, or to request special assistance at the background documents, are available in Administrator, Federal Emergency meeting(s), contact the Coast Guard at the docket. Each document may be Management Agency. the number listed in the FOR FURTHER downloaded. [FR Doc. E8–18525 Filed 8–11–08; 8:45 am] INFORMATION CONTACT as soon as Dated: August 1, 2008. possible. BILLING CODE 9110–10–P J.G. Lantz, Background and Purpose U.S. Coast Guard, Director of Commercial In addition to announcing public Regulations and Standards. meetings, the Coast Guard is reopening [FR Doc. E8–18532 Filed 8–11–08; 8:45 am] the public comment period announced BILLING CODE 4910–15–P

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DEPARTMENT OF HOMELAND DEPARTMENT OF HOMELAND SUMMARY: The Fish and Wildlife Service SECURITY SECURITY announces that a Final Comprehensive Conservation Plan (CCP) and Finding of Federal Emergency Management Federal Emergency Management No Significant Impact (FONSI) for Agency Agency Merritt Island National Wildlife Refuge [FEMA–1772–DR] is available for distribution. This CCP [FEMA–1772–DR] was prepared pursuant to the National Minnesota; Amendment No. 3 to Notice Wildlife Refuge System Improvement Minnesota; Amendment No. 4 to Notice of a Major Disaster Declaration Act of 1997, and in accordance with the of a Major Disaster Declaration National Environmental Policy Act of AGENCY: Federal Emergency 1969, and describes how the refuge will AGENCY: Federal Emergency Management Agency, DHS. be managed for the next 15 years. Management Agency, DHS. ACTION: Notice. ADDRESSES: A copy of the CCP/FONSI is available on compact diskette or hard ACTION: SUMMARY Notice. : This notice amends the notice copy, and you may obtain a copy by of a major disaster for the State of writing: Merritt Island National Wildlife SUMMARY: This notice amends the notice Minnesota (FEMA–1772–DR), dated Refuge (CCP), P.O. Box 2683, Titusville, of a major disaster declaration for the June 25, 2008, and related Florida 32781. You may also access and State of Minnesota (FEMA–1772–DR), determinations. download a copy of the CCP/FONSI dated June 25, 2008, and related DATES: Effective Date: August 5, 2008. from the Service’s Web site address: determinations. FOR FURTHER INFORMATION CONTACT: http://southeast.fws.gov/planning/. FOR FURTHER INFORMATION CONTACT: Ron DATES: Effective Date: August 5, 2008. Peggy Miller, Disaster Assistance Directorate, Federal Emergency Hight, Telephone: 321/861–0667. FOR FURTHER INFORMATION CONTACT: Management Agency, 500 C Street, SW., SUPPLEMENTARY INFORMATION: With this Peggy Miller, Disaster Assistance Washington, DC 20472, (202) 646–3886. notice, we finalize the CCP process for Directorate, Federal Emergency SUPPLEMENTARY INFORMATION: Notice is Merritt Island National Wildlife Refuge Management Agency, 500 C Street, SW., hereby given that the incident period for begun as announced in the Federal Washington, DC 20472, (202) 646–3886. this declared disaster is now June 6–12, Register on August 26, 2002 (67 FR 54816). We released the Draft CCP/EA to SUPPLEMENTARY INFORMATION: 2008. The notice the public, announcing and requesting of a major disaster declaration for the (The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used comments for 60 days in a notice of State of Minnesota is hereby amended to availability in the Federal Register on include the following area among those for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora December 27, 2006 (71 FR 77783). areas determined to have been adversely Brown Fund; 97.032, Crisis Counseling; Purpose of the Refuge: Merritt Island affected by the catastrophe declared a 97.033, Disaster Legal Services; 97.034, National Wildlife Refuge was major disaster by the President in his Disaster Unemployment Assistance (DUA); established in 1963, to protect migratory declaration of June 25, 2008. 97.046, Fire Management Assistance Grant; birds through an agreement with the 97.048, Disaster Housing Assistance to Cook County for Public Assistance. National Aeronautics and Space Individuals and Households in Presidentially Administration, as an overlay of John F. (The following Catalog of Federal Domestic Declared Disaster Areas; 97.049, Kennedy Space Center. The over Assistance Numbers (CFDA) are to be used Presidentially Declared Disaster Assistance— 140,000 acres of beaches and dunes, for reporting and drawing funds: 97.030, Disaster Housing Operations for Individuals Community Disaster Loans; 97.031, Cora and Households; 97.050, Presidentially estuarine waters, forested and non- Brown Fund; 97.032, Crisis Counseling; Declared Disaster Assistance to Individuals forested wetlands, impounded 97.033, Disaster Legal Services; 97.034, and Households—Other Needs; 97.036, wetlands, and upland shrub lands and Disaster Grants—Public Assistance Disaster Unemployment Assistance (DUA); forests of the refuge support over 500 (Presidentially Declared Disasters); 97.039, 97.046, Fire Management Assistance Grant; wildlife species and over 1,000 plant Hazard Mitigation Grant.) 97.048, Disaster Housing Assistance to species, including a variety of Individuals and Households in Presidentially R. David Paulison, waterfowl, shorebirds, and neotropical Declared Disaster Areas; 97.049, Administrator, Federal Emergency migratory birds. Presidentially Declared Disaster Assistance— Management Agency. Alternatives and Preferred Disaster Housing Operations for Individuals [FR Doc. E8–18524 Filed 8–11–08; 8:45 am] Alternative: The Draft CCP/EA addressed several priority issues raised and Households; 97.050, Presidentially BILLING CODE 9110–10–P Declared Disaster Assistance to Individuals by the Service, the Florida Fish and and Households—Other Needs; 97.036, Wildlife Conservation Commission, other governmental partners, and the Disaster Grants—Public Assistance DEPARTMENT OF THE INTERIOR (Presidentially Declared Disasters); 97.039, public. These issues included the Hazard Mitigation Grant.) Fish and Wildlife Service spread of exotic, invasive, and nuisance species; the threats to threatened, R. David Paulison, [FWS–R4–R–2008–N0213; 40136–1265– endangered, and other imperiled Administrator, Federal Emergency 0000–S3] species; the threats and impacts of an Management Agency. ever-increasing human population and [FR Doc. E8–18523 Filed 8–11–08; 8:45 am] Merritt Island National Wildlife Refuge the associated demand for public use BILLING CODE 9110–10–P AGENCY: Fish and Wildlife Service, activities; the management/maintenance Interior. of impounded wetlands; the coordination between ACTION: Notice of availability of the intergovernmental partners; and the Final Comprehensive Conservation Plan decline in migratory birds and their and Finding of No Significant Impact. habitats.

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To address these priority issues, four threatened and endangered species, be assessed and used to guide alternatives were developed and migratory birds, and climate change. development of a range of action evaluated during the planning process. The actions outlined in the CCP and alternatives. Alternative A continued current in two included step-down plans Action alternatives will consider refuge management activities and provide direction and guidance for potential changes to transportation programs. Under this alternative, the management of Merritt Island National system components including carrying refuge would continue to maintain 550 Wildlife Refuge. Successful capacity, and allocation of vehicle use Florida scrub jay family groups across implementation will depend on among shuttle buses, tours, inholders, 15,000 acres, 11–13 nesting pairs of bald coordination and partnerships between professional photographers, and eagles, and 6.3 miles of sea turtle the public, the Service, and other administrative vehicles. It will also nesting beaches. governmental agencies. consider changes to bus scheduling and Alternative B expanded refuge Authority: This notice is published under spacing; the size and type of buses; tour management actions on needs of the authority of the National Wildlife Refuge services; educational opportunities and threatened and endangered species. The System Improvement Act of 1997, Public interpretive services; wildlife viewing refuge would aggressively manage for Law 105–57. opportunities; and possibly other Florida scrub jays, restoring and factors. Alternatives may also consider Dated: June 29, 2007. maintaining 19,000–20,000 acres in operational improvements such as the optimal condition to support 900 family Cynthia K. Dohner, quality of the buses, space for backpacks groups. Habitat management activities Acting Regional Director. and bicycles, communications, would support the number of nesting Editorial Note: This document was accessibility and interpretive services pairs of bald eagles to expand to 20, received in the Office of the Federal Register (both on the buses or prior to departure). with increased protection of nest sites, on August 5, 2008. The NPS may consider utilizing an development of artificial nesting [FR Doc. E8–18411 Filed 8–11–08; 8:45 am] adaptive management approach based platforms, and increased cultivation of BILLING CODE 4310–55–P on a Before-After-Control-Impact (BACI) future nest areas and nesting trees. experimental design to implement any Alternative C focused refuge proposed changes. This BACI approach management actions on the needs of DEPARTMENT OF THE INTERIOR would increase the ability to detect and migratory birds. Current management National Park Service correct any future negative impacts on activities for threatened and endangered visitor experience or park resources and species would remain the same or Denali Park Road Vehicle Management values caused by management actions. would be decreased. The refuge would Plan Environmental Impact Statement The NPS will consider a wide range manage intensively for waterfowl, of information including data collected increasing the acres of impounded AGENCY: National Park Service, Interior. from the 1930’s to the present. Intensive wetlands managed to over 16,000 acres ACTION: Notice of Intent to Prepare an studies conducted over the last three and annually supporting targets of 250 Environmental Impact Statement. years on wildlife populations and breeding pairs of mottled duck, 60,000 behavior, social science studies on lesser scaup, 25,000 dabbling ducks, SUMMARY: The National Park Service visitor experience, and extensive and 38,000 diving ducks. The refuge (NPS) intends to prepare an modeling of traffic patterns on the park would also intensively manage for Environmental Impact Statement (EIS) road will be considered in the shorebirds, increasing to over 5,000 to develop and implement a plan to development and analysis of acres managed in impounded wetlands. manage vehicles along the Denali park alternatives. Alternative D, the Service’s preferred road, including carrying capacity (the This EIS is being prepared in alternative, takes a more landscape view maximum number of vehicles that can accordance with the requirements of the of the refuge and its resources, focusing be accommodated on the Denali park National Environmental Policy Act of refuge management on wildlife and road May–September). The goal of the 1969, as amended (42 U.S.C. 4331 et habitat diversity. The refuge will plan is to provide a high quality seq.), and its implementing regulations support 500–650 Florida scrub jay experience for visitors while protecting at 40 CFR part 1500. family groups with 350–500 territories wilderness resource values, scenic Scoping: The planning team requests in optimal conditions across 15,000– values, wildlife and other park input from interested federal and state 16,000 acres. With active management, resources, and maintaining the unique agencies, local governments, groups, the refuge will support 11–15 nesting character of the park road. The plan will organizations, park visitors, and the pairs of bald eagles; maintain 6.3 miles comprehensively evaluate the existing public. Written and verbal scoping of sea turtle nesting beaches; and visitor transportation system to comments are being solicited. Further maintain 100 acres of habitat for the determine its effectiveness in protecting information on this planning process southeastern beach mouse, while the park resources and providing for visitor will be available through public scoping refuge population will serve as a source access and enjoyment. Demand for bus meetings, press releases, and the park for reintroduction of the beach mouse to seats exceeds capacity in some cases Web site. Public scoping meetings will other sites. Manatee-focused and trends indicate that visitation will be held in Anchorage, Denali Park, management will be re-established on continue to increase. There is also a Susitna Valley, and Fairbanks, Alaska in the refuge. The refuge will manage need to accommodate the changing 2008. Additional locations may be 15,000–16,000 acres in impounded demographics, interests, and needs of added as appropriate. Specific dates, wetlands with a waterfowl focus and visitors. times, and locations of scoping meetings will support targets of 250 breeding The EIS will evaluate a no action will be announced in local media and pairs of mottled ducks, 60,000 lesser alternative of maintaining the existing posted on the NPS Planning, scaup, 25,000 dabbling ducks, and vehicle management system on the Environment, and Public Comment 38,000 other diving ducks. Visitor Denali park road including current bus (PEPC) Web site at http:// services, programs, and messages will schedules, vehicle allocation, and parkplanning.nps.gov/DENA. be focused on wildlife and habitat carrying capacity. The effectiveness of Before including your address, phone diversity, while also including the existing transportation system will number, e-mail address, or other

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personal identifying information in your visitor transportation system that same Act of 1969, 42 U.S.C. 4332(2)(C), the comment, you should be aware that year to minimize disturbances to National Park Service (NPS) with the your entire comment—including your wildlife and scenery. This was one of Wisconsin Department of Natural personal identifying information—may the first visitor transportation systems in Resources (DNR), is preparing a General be made publicly available at any time. the national park system and it set the Management Plan/Environmental While you can ask us in your comment standard for transportation systems in Impact Statement (GMP/EIS) for the Ice to withhold your personal identifying other park units. Age National Scenic Trail (NST) information from public review, we With the sustained growth in Alaska’s Interpretive Site and Cross Plains Unit cannot guarantee that we will be able to tourism industry, Denali continues to be of the Ice Age National Scientific do so. a featured part of travelers’ itineraries. Reserve in Wisconsin. The GMP/EIS DATES: Comments concerning the scope To better manage the park experience in will prescribe the resource conditions of this project should be received on or light of increased pressures, the 1986 and visitor experiences that are to be before September 30, 2008. The draft General Management Plan (GMP) for the achieved and maintained in these areas EIS is projected to be available in early park established a limit of 10,512 motor over the next 15 to 20 years. 2010. vehicle trips annually on the park road. To facilitate sound planning and ADDRESSES: Written comments may be This limit, which affects the existing environmental assessment, the NPS mailed to the address below. Electronic allocation of vehicle trips (among tour intends to gather information necessary comments may be submitted to the NPS buses, shuttle buses, private vehicles, for the preparation of the GMP/EIS and Planning, Environment, and Public administrative vehicles, and private obtain suggestions and information from Comment (PEPC) Web site: http:// inholders and their guests) will be other Agencies and the public on the parkplanning.nps.gov/DENA. To comprehensively evaluated in this EIS. scope of issues to be addressed in the comment using PEPC, select the ‘‘Denali The transportation system enabled GMP/EIS. Because the planning area Park Road Vehicle Management Plan’’, Denali to maintain vehicle use levels involves a complex of public lands with then select ‘‘Open for Public Comment’’. below this figure while providing different State and Federal designations, FOR FURTHER INFORMATION CONTACT: visitors the opportunity to travel the the NPS is partnering with the Adrienne Lindholm, Outdoor park road. However, visitation Wisconsin DNR in developing this plan. Recreation Planner, Denali Planning, continues to increase and demand The U.S. Fish and Wildlife Service will 240 West 5th Avenue, Anchorage, AK exceeds capacity in some cases. Trends participate in the planning team. 99501, (907) 644–3613. indicate that visitation will continue to Comments and participation in this SUPPLEMENTARY INFORMATION: Denali increase and that there will continue to scoping process are invited. National Park contains one of the most be a demand for access to Denali. There Participation in the planning process intact predator-prey ecosystems in the is also a need to accommodate the will be encouraged and facilitated by world as well as one of the best changing demographics, interests, and various means, including newsletters opportunities in North America to view needs of visitors. This will require a and open house meetings. The NPS will wildlife in its natural setting. Denali comprehensive review of the current conduct public scoping meetings to National Park was established in 1917 system and evaluation of alternatives for explain the planning process and to as a game refuge and conserving wildlife developing a system to better serve the solicit opinions about issues to address and protecting opportunities to view needs of visitors while protecting park in the GMP/EIS. Notification of all such wildlife remain its most important resources. meetings will be announced in the local values. Key resources and values Dated: June 20, 2008. press and in the NPS newsletters. include: Wildlife populations, wildlife Victor Knox, ADDRESSES: Additionally, if you wish to habitat, and the processes and Acting Regional Director, Alaska. comment on any issues associated with components of the park’s natural [FR Doc. E8–18571 Filed 8–11–08; 8:45 am] the GMP/EIS, you may submit your ecosystem; wilderness character, BILLING CODE 4310–PF–P comments by any one of several wilderness resource values, and methods. You may mail or hand-deliver wilderness recreational opportunities; comments to Superintendent, Ice Age scenic and geologic values of Mount DEPARTMENT OF THE INTERIOR and North Country National Scenic McKinley and surrounding mountain Trails, 700 Rayovac Drive, Suite 100, landscape; and visitor enjoyment and National Park Service Madison, Wisconsin 53711. You may inspiration from observing wildlife in provide comments electronically by its natural habitat and other natural Notice of Intent To Prepare a General entering them into the NPS’s Planning, features. Denali is now one of the most Management Plan and Environmental Environment and Public Comment Web visited subarctic national parks in the Impact Statement for the Ice Age site http://parkplanning.nps.gov. world, with the vast majority of National Scenic Trail Interpretive Site Information will be available for public visitation focused along the 90-mile and Cross Plains Unit of the Ice Age review and comment from the Office of park road. Park managers must ensure National Scientific Reserve, WI the Superintendent at the above that Denali’s vehicle management plan AGENCY: National Park Service, address. protects these critical resource values. Department of the Interior. Requests to be added to the project Before 1972, Denali visitation was low ACTION: Notice of Intent to Prepare a mailing list should be sent to Manager, because travelers arrived either by train General Management Plan and Ice Age NST, 700 Rayovac Drive, Suite or by an arduous overland route on the Environmental Impact Statement for the 100, Madison, Wisconsin 53711; unimproved Denali Highway. In 1972 Ice Age National Scenic Trail telephone 608–441–5610. park visitation increased 100% in direct Interpretive Site and Cross Plains Unit Before including your address, response to the opening of the George of the Ice Age National Scientific telephone number, e-mail address, or Parks Highway which created a direct Reserve, Wisconsin. other personal identifying information corridor from Anchorage to the park. in your comments, you should be aware Anticipating this increase, park SUMMARY: Pursuant to Section 102(2)(C) that your entire comment (including managers implemented a mandatory of the National Environmental Policy your personal identifying information)

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may be made publicly available at any Dated: May 19, 2008. The public participation procedures do time. While you can ask us in your Ernest Quintana, not apply to proposed contracts for the comments to withhold your personal Regional Director, Midwest Region. sale of surplus or interim irrigation identifying information from public [FR Doc. E8–18572 Filed 8–11–08; 8:45 am] water for a term of 1 year or less. Either review, we cannot guarantee that we BILLING CODE 4312–KN–P of the contracting parties may invite the will be able to do so. We will make all public to observe contract proceedings. submissions from organizations or All public participation procedures will businesses, from individuals identifying DEPARTMENT OF THE INTERIOR be coordinated with those involved in themselves as representatives or complying with the National Bureau of Reclamation officials, or organizations or businesses Environmental Policy Act. Pursuant to the ‘‘Final Revised Public Participation available for public inspection in their Quarterly Status Report of Water entirety. Procedures’’ for water resource-related Service, Repayment, and Other Water- contract negotiations, published in 47 FOR FURTHER INFORMATION CONTACT: Related Contract Negotiations FR 7763, February 22, 1982, a tabulation Superintendent, Ice Age and North AGENCY: Bureau of Reclamation, is provided of all proposed contractual Country National Scenic Trails, 700 Interior. actions in each of the five Reclamation Rayovac Drive, Suite 100, Madison, ACTION: Notice. regions. When contract negotiations are Wisconsin 53711; telephone 608–441– completed, and prior to execution, each 5610. SUMMARY: Notice is hereby given of proposed contract form must be contractual actions that have been approved by the Secretary of the SUPPLEMENTARY INFORMATION: The proposed to the Bureau of Reclamation Interior, or pursuant to delegated or primary purpose of the Ice Age NST is and are new, modified, discontinued, or redelegated authority, the Commissioner to create an outstanding 1,000-mile completed since the last publication of of Reclamation or one of the regional hiking trail that follows the terminal this notice on May 9, 2008. This notice directors. In some instances, moraines and other landscape features is one of a variety of means used to congressional review and approval of a left by the last glacial advance and inform the public about proposed report, water rate, or other terms and retreat approximately 10,000 years ago. contractual actions for capital recovery conditions of the contract may be The Ice Age National Scientific Reserve and management of project resources involved. (Reserve), a companion project to the Ice and facilities consistent with section 9(f) Public participation in and receipt of Age NST, is a network of nine units that of the Reclamation Project Act of 1939. comments on contract proposals will be contain clusters of the most significant Additional announcements of facilitated by adherence to the following examples of landscape features formed individual contract actions may be procedures: by continental glaciation. The Ice Age published in the Federal Register and in 1. Only persons authorized to act on NST and Reserve are the only newspapers of general circulation in the behalf of the contracting entities may negotiate the terms and conditions of a authorized areas in the National Park areas determined by Reclamation to be affected by the proposed action. specific contract proposal. System that focus on interpreting the 2. Advance notice of meetings or landscape formed by continental ADDRESSES: The identity of the approving officer and other information hearings will be furnished to those glaciation. The Ice Age NST Interpretive parties that have made a timely written Site lies within the boundary of the pertaining to a specific contract proposal may be obtained by calling or request for such notice to the Wisconsin DNR Cross Plains Unit of the appropriate regional or project office of Reserve. writing the appropriate regional office at the address and telephone number given Reclamation. 3. Written correspondence regarding The NPS efforts to establish, develop, for each region in the SUPPLEMENTARY proposed contracts may be made and manage the Ice Age NST are guided INFORMATION section. available to the general public pursuant by the 1983 Comprehensive Plan for FOR FURTHER INFORMATION CONTACT: Management and Use of the Ice Age to the terms and procedures of the Michelle Kelly, Water and Freedom of Information Act, as NST. The plan does not address or Environmental Resources Office, Bureau resolve the many detailed issues amended. of Reclamation, PO Box 25007, Denver, 4. Written comments on a proposed associated with owning, operating, and Colorado 80225–0007; telephone 303– organizing a major interpretive site contract or contract action must be 445–2888. submitted to the appropriate regional along the trail, although it cites the NPS SUPPLEMENTARY INFORMATION: Consistent authority to establish such a site. The officials at the locations and within the with section 9(f) of the Reclamation time limits set forth in the advance development of a new GMP/EIS for the Project Act of 1939 and the rules and public notices. Ice Age NST Interpretive Site and Cross regulations published in 52 FR 11954, 5. All written comments received and Plains Unit of the Reserve will result in April 13, 1987 (43 CFR 426.22), testimony presented at any public a long-term (15–20 year) vision for the Reclamation will publish notice of hearings will be reviewed and management and protection of this proposed or amendatory contract summarized by the appropriate regional unique area. The outcome of the GMP/ actions for any contract for the delivery office for use by the contract approving EIS will achieve a consistent of project water for authorized uses in authority. management over the entire project, newspapers of general circulation in the 6. Copies of specific proposed identify necessary developments, and affected area at least 60 days prior to contracts may be obtained from the support facilities to achieve the desired contract execution. Announcements appropriate regional director or his outcomes for the Ice Age NST and may be in the form of news releases, designated public contact as they Interpretive Site, provide direction for legal notices, official letters, become available for review and restoring and managing the significant memorandums, or other forms of comment. geologic and biologic features on the written material. Meetings, workshops, 7. In the event modifications are made site, and define appropriate visitor use and/or hearings may also be used, as in the form of a proposed contract, the activities. appropriate, to provide local publicity. appropriate regional director shall

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determine whether republication of the Warren Act contract for conveying up to contract will ensure permanent water notice and/or extension of the comment 300,000 acre-feet of nonproject flood supply for the endangered fish. period is necessary. flows via the Friant-Kern Canal for flood Completed Contract Actions Factors considered in making such a control purposes. determination shall include, but are not 1. (b) Maureen A. Call, Aspinall limited to (i) the significance of the Completed Contract Action Storage Unit, CRSP: Ms. Call has modification, and (ii) the degree of 31. Contract for exchange of water requested a 40-year water service public interest which has been among the United States, San Luis WD, contract for 1 acre-foot of M&I water out expressed over the course of the and Meyers Farms Family Trust. The of Blue Mesa Reservoir, which requires negotiations. At a minimum, the contract will allow for an exchange with Ms. Call to present a Plan of regional director shall furnish revised Reclamation of previously banked water Augmentation to the Division 4 Water contracts to all parties who requested for a like amount of project water made Court. Contract was executed February the contract in response to the initial available to San Luis WD on behalf of 15, 2008. public notice. Meyers Farms. Contract executed May 2, 1. (c) Vanessa Rueckert (Hidden Mesa 2008. Estates), Aspinall Storage Unit, CRSP: Definitions of Abbreviations Used in Lower Colorado Region: Bureau of Ms. Rueckert has requested a 40-year This Document Reclamation, PO Box 61470 (Nevada water service contract for 1 acre-foot of BCP—Boulder Canyon Project Highway and Park Street), Boulder City, M&I water out of Blue Mesa Reservoir, Reclamation—Bureau of Reclamation Nevada 89006–1470, telephone 702– which requires Ms. Rueckert to present CAP—Central Arizona Project 293–8192. a Plan of Augmentation to the Division CVP—Central Valley Project The Lower Colorado Region has no 4 Water Court. Contract was executed CRSP—Colorado River Storage Project update to report for this quarter. February 15, 2008. FR—Federal Register Upper Colorado Region: Bureau of IDD—Irrigation and Drainage District 1. (d) Thomas Alan Kay (North Fork ID—Irrigation District Reclamation, 125 South State Street, Reserve), Aspinall Storage Unit, CRSP: M&I—Municipal and Industrial Room 6107, Salt Lake City, Utah 84138– Mr. Kay has requested a 40-year water NMISC—New Mexico Interstate Stream 1102, telephone 801–524–3864. service contract for 11 acre-feet of M&I Commission New Contract Actions water out of Blue Mesa Reservoir, which O&M—Operation and Maintenance requires them to present a Plan of P–SMBP—Pick-Sloan Missouri Basin 1. (e) Mesa County (Solid Waste), Augmentation to the Division 4 Water Program Aspinall Storage Unit, CRSP: The Court. Contract was executed February PPR—Present Perfected Right County has requested a 40-year water 12, 2008. RRA—Reclamation Reform Act of 1982 service contract for 44 acre-feet of M&I 1. (e) Mesa County (Solid Waste), SOD—Safety of Dams water out of Blue Mesa Reservoir, which Aspinall Storage Unit, CRSP: The SRPA—Small Reclamation Projects Act requires them to present a Plan of County has requested a 40-year water of 1956 Augmentation to the Division 4 Water service contract for 44 acre-feet of M&I USACE—U.S. Army Corps of Engineers Court. water out of the Blue Mesa Reservoir, WD—Water District 1. (f) Mike and Marsha Jackson, which requires them to present a Plan Pacific Northwest Region: Bureau of Aspinall Storage Unit, CRSP: The of Augmentation to the Division 4 Water Reclamation, 1150 North Curtis Road, Jackson’s have requested a 40-year water Court. Contract was executed February Suite 100, Boise, Idaho 83706–1234, service contract for 1 acre-foot of M&I 12, 2008. telephone 208–378–5344. out of Blue Mesa Reservoir, which 24. Weber Basin Water Conservancy Discontinued Contract Action requires them to present a Plan of District, Weber Basin Project, Utah: Augmentation to the Division 4 Water 6. North Unit ID, Deschutes Project, Contract providing for the district to Court. Oregon: Warren Act contract with cost repay to the United States 15 percent of 1. (g) Dick Morfitt, Aspinall Storage the cost of Phase I SOD modifications to of service charge to allow for use of Unit, CRSP: Mr. Morfitt has requested a project facilities to convey nonproject the foundation at Arthur V. Watkins 40-year water service contract for 35 water. Dam. Contract was executed April 7, acre-feet of M&I water out of Blue Mesa Mid-Pacific Region: Bureau of 2008. Reclamation, 2800 Cottage Way, Reservoir, which requires him to 25. Weber Basin Water Conservancy Sacramento, California 95825–1898, present a Plan of Augmentation to the District, Weber Basin Project, Utah: telephone 916–978–5250. Division 4 Water Court. Contract providing for the district to 1. (h) Western Gravel, Aspinall repay to the United States 15 percent of New Contract Actions Storage Unit, CRSP: Western Gravel has the cost of Phase II SOD modifications 34. Ivanhoe ID, CVP, California: requested a 40-year water service to the foundation at Arthur V. Watkins Proposed partial assignment of 1,200 contract for 3 acre-feet of M&I water out Dam. Contract was executed May 2, acre-feet of class 1 and 7,400 acre-feet of of Blue Mesa Reservoir, which requires 2008. class 2 of the district’s CVP water them to present a Plan of Augmentation Great Plains Region: Bureau of supply to Kaweah Delta Conservation to the Division 4 Water Court. Reclamation, PO Box 36900, Federal District for irrigation purposes. 33. Elkhead Reservoir Enlargement: Building, 316 North 26th Street, 35. Cawelo WD, CVP, California: This contract will supersede contract Billings, Montana 59101, telephone Long-term Warren Act contract for No. 05–WC–40–420. The proposed 406–247–7752. conveying up to 10,000 acre-feet of contract will include the Recovery New Contract Actions nonproject water (exchanged banked Programs pro-rata share of the actual groundwater) via the Friant-Kern Canal construction cost plus fish screen costs. 40. LU Sheep Company, Boysen Unit, for irrigation and M&I purposes. Also identified in this proposed contract P–SMBP, Wyoming: Contract renewal of is the pro-rata share of the actual long-term water service contract. Modified Contract Action construction costs for the other 41. Busch Farms, Inc., Boysen Unit, 21. Delta Lands Reclamation District signatory parties. Upon payment by P–SMBP, Wyoming: Contract renewal of No. 770, CVP, California: Long-term Recovery Program, this proposed long-term water service contract.

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42. Gorst Ranch, Boysen Unit, P– For thirty (30) days after the date of Nevada. In this action the United States SMBP, Wyoming: Contract renewal of this publication, the Department of sought to obtain injunctive relief and long-term water service contract. Justice will receive comments relating to assessment of civil penalties against the Consent Decree. Comments should Republic Dumpco, Inc. and Republic Modified Contract Actions be addressed to the Assistant Attorney Silver State Disposal Inc. (doing 5. Highland-Hanover ID, Hanover- General, Environment and Natural business as Republic Services of Bluff Unit, P–SMBP, Wyoming: Execute Resources Division, and either e-mailed Southern Nevada) (hereinafter long-term water service contract. to [email protected] or ‘‘Republic Services of Southern 6. Upper Bluff ID, Hanover-Bluff Unit, mailed to P.O. Box 7611, U.S. Nevada’’), for alleged violations of the P–SMBP, Wyoming: Execute long-term Department of Justice, Washington, DC Clean Water Act (‘‘CWA’’), 33 U.S.C. water service contract. 20044–7611. In either case, the 1251–1387. The complaint also sought 37. Big Horn Canal ID, Boysen Unit, comments should refer to United States injunctive relief and assessment of civil P–SMBP, Wyoming: Big Horn Canal ID v. Donald E. Horne, et al., DOJ Ref. No. penalties against Republic Services of has requested the renewal of their long- 90–11–3–08035/1. Southern Nevada and Clark County, term water service contract. The proposed consent decree may be Nevada, under Section 7003 of the 38. Treeline Springs, LLC., Canyon examined at the United States Resource Conservation and Recovery Ferry Unit, Montana: Request for water Attorney’s Office, Western District of Act (‘‘RCRA’’), 42 U.S.C. 6973. The service contract for up to 620 acre-feet Missouri, Charles Evans Whittaker complaint also states claims for damages of water per year for replacement of Courthouse, 400 East Ninth Street, for trespass against all three defendants, water for senior water rights. Room 5510, Kansas City, Missouri and breach of contract and violations of 39. Hanover ID, Boysen Unit, P– 64106, and at the Region VII Office of permits against Clark County. SMBP, Wyoming: Hanover ID has the Environmental Protection Agency, The proposed Decree would require requested the renewal of their long-term 901 North Fifth Street, Kansas City, Republic Services of Southern Nevada water service contract. Kansas 66101. During the comment to pay $1 million as a civil penalty, and period, the Consent Decree may be to implement a comprehensive closure Dated: June 25, 2008. examined on the following Department of the Landfill estimated to cost $36.3 Roseann Gonzales, of Justice Web site: http:// million, including storm water controls, Director, Policy and Program Services, Denver www.usdoj.gov/enrd/ upgrades to the cover, methane gas Office. Consent_Decrees.html. A copy of the collection, groundwater monitoring, and [FR Doc. E8–18556 Filed 8–11–08; 8:45 am] Consent Decree may also be obtained by long-term operation and maintenance. BILLING CODE 4310–MN–P mail from the Consent Decree Library, In addition, Clark County agrees to P.O. Box 7611, U.S. Department of accept ownership of the landfill from Justice, Washington, DC 20044–7611, or the United States Bureau of Land DEPARTMENT OF JUSTICE by faxing or e-mailing a request to Tonia Management. The Consent Decree Fleetwood ([email protected]), resolves the violations alleged in the Notice of Lodging of Consent Decree fax no. (202) 514–0097, phone complaint. In addition, the United Under the Comprehensive confirmation number (202) 514–1547. In States grants a covenant not to sue for Environmental Response, requesting a copy from the Consent the Landfill under Section 7003 of Compensation, and Liability Act Decree Library, please enclose a check RCRA, and under sections 106 and 107 in the amount of $6.00 (25 cents per of the Comprehensive Environmental Notice is hereby given that a proposed page reproduction cost) payable to the Response, Compensation, and Liability Consent Decree with Victor A. Horne, in United States Treasury or, if by e-mail Act of 1980, as amended (‘‘CERCLA’’), the case of United States v. Donald E. or fax, forward a check in that amount 42 U.S.C. 9606 and 9607. Horne, et al., Civil Action No. 4:05– to the Consent Decree Library at the The Department of Justice will receive 00497, was lodged with the United stated address. for a period of thirty (30) days from the States District Court for the Western date of this publication comments District of Missouri on August 6, 2008. Maureen Katz, relating to the Decree. Comments should The United States filed the Complaint Assistant Section Chief, Environmental be addressed to the Assistant Attorney on May 27, 2005 on behalf of the Enforcement Section, Environment and General, Environment and Natural Administrator of the Environmental Natural Resources Division. Resources Division, and either e-mailed Protection Agency pursuant to the [FR Doc. E8–18547 Filed 8–11–08; 8:45 am] to [email protected] or Comprehensive Environmental BILLING CODE 4410–15–P mailed to P.O. Box 7611, U.S. Response, Compensation, and Liability Department of Justice, Washington, D.C. Act of 1980, as amended, 42 U.S.C. 20044–7611, and should reference 9601, et seq. (CERCLA), seeking DEPARTMENT OF JUSTICE United States v. Republic Dumpco, Civil recovery of costs incurred in responding Notice of Lodging of Consent Decree Action No. 2:08–cv–01024, and DOJ Ref. to the release or threat of release of Under the Clean Water Act and the No. 90–7–1–06725/2. Commenters may hazardous substances at or in Resource Conservation and Recovery request an opportunity for a public connection with the Armour Road Act meeting in the affected area, in Superfund Site located at 2251 Armour accordance with Section 7003(d) of Road North Kansas City, Missouri (Site). Notice is hereby given that on August RCRA, 42 U.S.C. 6973(d). The complaint alleges claims against 7, 2008, a proposed Consent Decree The Decree may be examined at the Victor Horne and five other defendants. (‘‘Decree’’) in United States v. Republic Office of the United States Attorney, 333 The Consent Decree referred to in this Dumpco, Inc., et al., Civil Action No. Las Vegas Blvd. South, Suite 5000, Las Notice addresses only the claims against 2:08–cv–01024 (D. Nev.) was lodged Vegas, Nevada 89101. During the public Victor Horne. The Consent Decree will with the United States District Court for comment period, the Decree may also be resolve the United States’ claims against the District of Nevada. examined on the following Department Victor Horne for the Site in return for a The civil action relates to the Sunrise of Justice Web site: http:// total payment of $2,500.00. Mountain Landfill in Las Vegas, www.usdoj.gov/enrd/

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Consent_Decrees.html. A copy of the determined that the Department will The intent of the Department’s Decree may also be obtained by mail conduct further investigation to certification is to include all workers of from the Consent Decree Library, P.O. determine if the workers meet the Clayton Marcus Co., Plant 1 Bethlehem, Box 7611, U.S. Department of Justice, eligibility requirements of the Trade Act a division of Rowe Fine Furniture, Inc. Washington, DC 20044–7611 or by of 1974. (‘‘Rowe’’) who were adversely affected faxing or e-mailing a request to Tonia by increased imports of upholstered Conclusion Fleetwood ([email protected]), furniture. fax no. (202) 514–0097, phone After careful review of the The amended notice applicable to confirmation number (202) 514–1547. In application, I conclude that the claim is TA–W–60,887 is hereby issued as requesting a copy from the Consent of sufficient weight to justify follows: Decree Library, please enclose a check reconsideration of the U.S. Department ‘‘All workers of Clayton Marcus Co., a in the amount of $16.50 (25 cents per of Labor’s prior decision. The division of Rowe Fine Furniture, Inc. page reproduction cost) for a copy of the application is, therefore, granted. (‘‘Rowe’’), Plant 1 Bethlehem, Hickory, North consent decree without attachments or Signed at Washington, DC, this 1st day of Carolina, who became totally or partially $42.25 for a copy of the consent decree August 2008. separated from employment on or after April 22, 2006, through March 21, 2009, are with the attachments, payable to the Elliott S. Kushner, eligible to apply for adjustment assistance U.S. Treasury or, if by e-mail or fax, Certifying Officer, Division of Trade forward a check in that amount to the under Section 223 of the Trade Act of 1974, Adjustment Assistance. and are also eligible to apply for alternative Consent Decree Library at the stated [FR Doc. E8–18586 Filed 8–11–08; 8:45 am] trade adjustment assistance under Section address. BILLING CODE 4510–FN–P 246 of the Trade Act of 1974.’’ Maureen Katz, Signed at Washington, DC, this 5th day of Assistant Chief, Environmental Enforcement August 2008. Section, Environment and Natural Resources DEPARTMENT OF LABOR Richard Church, Division. Employment and Training Certifying Officer, Division of Trade [FR Doc. E8–18621 Filed 8–11–08; 8:45 am] Administration Adjustment Assistance. BILLING CODE 4410–15–P [FR Doc. E8–18581 Filed 8–11–08; 8:45 am] [TA–W–60,887] BILLING CODE 4510–FN–P

DEPARTMENT OF LABOR Clayton Marcus Co., a Division of Rowe Fine Furniture, Inc. (‘‘Rowe’’), DEPARTMENT OF LABOR Employment and Training Plant 1 Bethlehem, Hickory, NC; Administration Amended Certification Regarding Employment and Training Administration [TA–W–63,640] Eligibility To Apply for Worker Adjustment Assistance and Alternative [TA–W–61,716] 3M Touch Systems; A Subsidiary of Trade Adjustment Assistance 3M, Electro & Communications Clayton Marcus Co., Inc., Plant #9, a In accordance with Section 223 of the Division, Milwaukee, WI; Notice of Subsidiary of La-Z-Boy Inc., Currently Trade Act of 1974 (19 U.S.C. 2273), and Affirmative Determination Regarding a Division of Rowe Fine Furniture, Inc. Section 246 of the Trade Act of 1974 (26 Application for Reconsideration (‘‘Rowe’’), Hickory, NC; Amended U.S.C. 2813), as amended, the Certification Regarding Eligibility To By application Dated July 30, 2008, a Department of Labor issued a Apply for Worker Adjustment company official requested Certification Regarding Eligibility to Assistance and Alternative Trade administrative reconsideration of the Apply for Worker Adjustment Adjustment Assistance negative determination regarding Assistance and Alternative Trade workers’ eligibility to apply for Trade Adjustment Assistance on March 21, In accordance with Section 223 of the Adjustment Assistance (TAA) and 2007, applicable to workers of Clayton Trade Act of 1974 (19 U.S.C. 2273), and Alternative Trade Adjustment Marcus Co., Plant 1 Bethlehem, Hickory, Section 246 of the Trade Act of 1974 (26 Assistance (ATAA) applicable to North Carolina. The notice was U.S.C. 2813), as amended, the workers and former workers of the published in the Federal Register on Department of Labor issued a subject firm. The determination was April 6, 2007 (72 FR 17184). Certification Regarding Eligibility to issued on July 16, 2008. The Notice of At the request of a company official, Apply for Worker Adjustment Determination was published in the the Department reviewed the Assistance and Alternative Trade Federal Register on July 30, 2008 (73 FR certification for workers of the subject Adjustment Assistance on June 25, 44284). firm. The workers are engaged in 2007, applicable to workers of Clayton The initial investigation resulted in a employment related to the production of Marcus Company, Inc., Plant #9, a negative determination based on the upholstered furniture. subsidiary of La-Z-Boy Inc., Hickory, finding that imports of touch screens for New information shows that in North Carolina. The notice was mobile phones did not contribute October 2007, Rowe Fine Furniture, Inc. published in the Federal Register on importantly to worker separations at the (‘‘Rowe’’) purchased Clayton Marcus July 19, 2007 (72 FR 39643). subject firm and no shift of production Co., Plant 1 Bethlehem and that some of At the request of a company official, to a foreign source occurred. the workers’ wages at the subject firm the Department reviewed the In the request for reconsideration, the are being reported under the certification for workers of the subject petitioner provided additional Unemployment Insurance (UI) tax firm. The workers are engaged in information about the customers of the accounts for Rowe Fine Furniture, Inc. employment related to the production of subject firm. (‘‘Rowe’’). cut and sewn materials used for The Department has carefully Accordingly, the Department is upholstered furniture. reviewed the request for reconsideration amending this certification to properly New information provided by the and the existing record and has reflect this matter. company shows that in October 2007,

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Rowe Fine Furniture, Inc. (‘‘Rowe’’) notice was published in the Federal DEPARTMENT OF LABOR purchased Clayton Marcus Co., Inc., Register on May 29, 2008 (73 FR 30977). Plant #9, a subsidiary of La-Z-Boy Inc. The certification was amended on June Employment and Training and that some of the workers’ wages at 26, 2008 to include an employee Administration the subject firm are being reported working out of Fayetteville, Georgia. [TA–W–63,659] under the Unemployment Insurance The notice was published in the Federal (UI) tax account for Rowe Fine Register on July 14, 2008 (73 FR 40386). Unilever Illinois Manufacturing, LLC, Furniture, Inc. (‘‘Rowe’’). Food Solutions Division, Including On- At the request of the State agency, the Accordingly, the Department is Site Leased Workers of Manpower, Department reviewed the certification amending the certification to include Account Resources and Intertech, workers of the subject firm whose UI for workers of the subject firm. Franklin Park, IL; Amended wages are reported by the successor New information shows that worker Certification Regarding Eligibility To firm, Rowe Fine Furniture, Inc. separations have occurred involving Apply for Worker Adjustment (‘‘Rowe’’). employees (Mr. Jimmy Gosnell, Mr. Assistance and Alternative Trade The amended notice applicable to Dino Kimbrell, Mr. David Lettner, and Adjustment Assistance TA–W–61,716 is hereby issued as Ms. Jody Meetz) of Megtec Systems, In accordance with Section 223 of the follows: Inc., a subsidiary of Sequa Corporation Trade Act of 1974 (19 U.S.C. 2273), and ‘‘All workers of Clayton Marcus Co., Inc., DePere, Wisconsin, working out of Section 246 of the Trade Act of 1974 (26 Plant #9, a subsidiary of La-Z-Boy Inc., Wellford, South Carolina, Jacksonville, U.S.C. 2813), as amended, the currently a division of Rowe Fine Furniture, Florida, Las Cruces, New Mexico and Department of Labor issued a Inc. (‘‘Rowe’’), Hickory, North Carolina, who Mesa, Arizona. became totally or partially separated from Certification of Eligibility to Apply for employment on or after February 26, 2007, Based on these findings, the Worker Adjustment Assistance and through June 25, 2009, are eligible to apply Department is amending this Alternative Trade Adjustment for adjustment assistance under Section 223 certification to include employees of the Assistance on July 17, 2008, applicable of the Trade Act of 1974, and are also eligible DePere, Wisconsin location of the to workers of Unilever Illinois to apply for alternative trade adjustment subject firm working out of Wellford, Manufacturing, LLC, Food Solutions assistance under Section 246 of the Trade Act Division, Franklin Park, Illinois. The of 1974.’’ South Carolina, Jacksonville, Florida, Las Cruces, New Mexico and Mesa, notice was published in the Federal Signed at Washington, DC, this 6th day of Arizona. Register on July 30, 2008 (73 FR 44284). August 2008. At the request of a company official, Linda G. Poole, The intent of the Department’s the Department reviewed the Certifying Officer, Division of Trade certification is to include all workers of certification for workers of the subject Adjustment Assistance. Megtec Systems, Inc., a subsidiary of firm. The workers are engaged in the [FR Doc. E8–18582 Filed 8–11–08; 8:45 am] Sequa Corporation, DePere, Wisconsin, production of commercial soup bases. BILLING CODE 4510–FN–P who were adversely affected by New information shows that leased increased imports of air flotation drying, workers of Manpower, Account pollution control and paper handling Resources and InterTech were employed DEPARTMENT OF LABOR equipment. on-site at the Franklin Park, Illinois The amended notice applicable to location of Unilever Illinois Employment and Training Manufacturing, LLC, Food Solutions Administration TA–W–62,833 is hereby issued as follows: Division. The Department has [TA–W–62,833; TA–W–62,833B; TA–W– determined that these workers were ‘‘All workers of Megtec Systems, Inc., a 62,833C; TA–W–62,833D; TA–W–62,833E] sufficiently under the control of subsidiary of Sequa Corporation, DePere, Unilever Illinois Manufacturing, LLC, Megtec Systems, Inc., a Subsidiary of Wisconsin (TA–W–62,833), including Food Solutions Division to be Sequa Corporation, Depere, WI, employees of Megtec Systems, Inc., a considered leased workers. Including Employees of Megtec subsidiary of Sequa Corporation, DePere, Based on these findings, the Systems, Inc., a Subsidiary of Sequa Wisconsin, working out of Wellford, South Department is amending this Corporation, Depere, WI, Working Out Carolina (TA–W–62,833B), Jacksonville, certification to include leased workers of: Wellford, SC; Jacksonville, FL; Las Florida (TA–W–62,833C), Las Cruces, New of Manpower, Account Resources and Cruces, NM; Mesa, AZ; Amended Mexico (TA–W–62,833D), and Mesa, Arizona InterTech working on-site at the Certification Regarding Eligibility To (TA–W–62,833E), who became totally or Franklin Park, Illinois location of the Apply for Worker Adjustment partially separated from employment on or subject firm. after February 11, 2007, through May 16, Assistance and Alternative Trade The intent of the Department’s 2010, are eligible to apply for adjustment Adjustment Assistance certification is to include all workers assistance under Section 223 of the Trade Act employed at Unilever Illinois In accordance with Section 223 of the of 1974, and are also eligible to apply for Manufacturing, LLC, Food Solutions Trade Act of 1974 (19 U.S.C. 2273), and alternative trade adjustment assistance under Division, Franklin Park, Illinois who Section 246 of the Trade Act of 1974 (26 Section 246 of the Trade Act of 1974.’’ were adversely affected by a shift in U.S.C. 2813), as amended, the Signed at Washington, DC, this 6th day of production of commercial soup bases to Department of Labor issued a August 2008. Canada. Certification Regarding Eligibility to Linda G. Poole, The amended notice applicable to Apply for Worker Adjustment TA–W–63,659 is hereby issued as Certifying Officer, Division of Trade Assistance and Alternative Trade Adjustment Assistance. follows: Adjustment Assistance on May 16, [FR Doc. E8–18583 Filed 8–11–08; 8:45 am] ‘‘All workers of Unilever Illinois 2008, applicable to workers of Megtec Manufacturing, LLC, Food Solutions Systems, Inc., a subsidiary of Sequa BILLING CODE 4510–FN–P Division, including on-site leased workers of Corporation, DePere, Wisconsin. The Manpower, Account Resources and

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InterTech, Franklin Park, Illinois, who have become totally or partially Section 246(a)(3)(A)(ii) of the Trade Act became totally or partially separated from separated, or are threatened to become must be met. employment on or after July 9, 2007, through totally or partially separated; 1. Whether a significant number of July 17, 2010, are eligible to apply for B. There has been a shift in workers in the workers’ firm are 50 adjustment assistance under Section 223 of production by such workers’ firm or years of age or older. the Trade Act of 1974, and are also eligible 2. Whether the workers in the to apply for alternative trade adjustment subdivision to a foreign country of assistance under Section 246 of the Trade Act articles like or directly competitive with workers’ firm possess skills that are not of 1974.’’ articles which are produced by such easily transferable. firm or subdivision; and 3. The competitive conditions within Signed at Washington, DC, this 5th day of the workers’ industry (i.e., conditions August 2008. C. One of the following must be within the industry are adverse). Linda G. Poole, satisfied: 1. The country to which the workers’ Certifying Officer, Division of Trade Affirmative Determinations for Worker Adjustment Assistance. firm has shifted production of the Adjustment Assistance articles is a party to a free trade [FR Doc. E8–18587 Filed 8–11–08; 8:45 am] The following certifications have been agreement with the United States; BILLING CODE 4510–FN–P issued. The date following the company 2. The country to which the workers’ name and location of each firm has shifted production of the determination references the impact articles is a beneficiary country under DEPARTMENT OF LABOR date for all workers of such the Andean Trade Preference Act, determination. African Growth and Opportunity Act, or Employment and Training The following certifications have been the Caribbean Basin Economic Recovery Administration issued. The requirements of Section Act; or 222(a)(2)(A) (increased imports) of the Notice of Determinations Regarding 3. There has been or is likely to be an Trade Act have been met. Eligibility To Apply for Worker increase in imports of articles that are None. Adjustment Assistance and Alternative like or directly competitive with articles The following certifications have been Trade Adjustment Assistance which are or were produced by such issued. The requirements of Section firm or subdivision. In accordance with Section 223 of the 222(a)(2)(B) (shift in production) of the Also, in order for an affirmative Trade Act of 1974, as amended (19 Trade Act have been met. determination to be made for U.S.C. 2273) the Department of Labor TA–W–63,698; Filtran, Inc., secondarily affected workers of a firm herein presents summaries of Ogdensburg, NY: July 7, 2007. and a certification issued regarding determinations regarding eligibility to TA–W–63,692; Firewire Surfboards, San eligibility to apply for worker apply for trade adjustment assistance for Diego, CA: July 3, 2007. adjustment assistance, each of the group workers (TA–W) number and alternative The following certifications have been eligibility requirements of Section trade adjustment assistance (ATAA) by issued. The requirements of Section 222(b) of the Act must be met. (TA–W) number issued during the 222(b) (supplier to a firm whose workers period of July 21 through August 1, (1) Significant number or proportion are certified eligible to apply for TAA) 2008. of the workers in the workers’ firm or of the Trade Act have been met. In order for an affirmative an appropriate subdivision of the firm None. determination to be made for workers of have become totally or partially The following certifications have been a primary firm and a certification issued separated, or are threatened to become issued. The requirements of Section regarding eligibility to apply for worker totally or partially separated; 222(b) (downstream producer for a firm adjustment assistance, each of the group (2) The workers’ firm (or subdivision) whose workers are certified eligible to eligibility requirements of Section is a supplier or downstream producer to apply for TAA based on increased 222(a) of the Act must be met. a firm (or subdivision) that employed a imports from or a shift in production to I. Section (a)(2)(A)—all of the group of workers who received a Mexico or Canada) of the Trade Act following must be satisfied: certification of eligibility to apply for have been met. A. A significant number or proportion trade adjustment assistance benefits and None. of the workers in such workers’ firm, or such supply or production is related to Affirmative Determinations for Worker an appropriate subdivision of the firm, the article that was the basis for such Adjustment Assistance and Alternative have become totally or partially certification; and Trade Adjustment Assistance separated, or are threatened to become (3) Either— totally or partially separated; (A) The workers’ firm is a supplier The following certifications have been B. The sales or production, or both, of and the component parts it supplied for issued. The date following the company such firm or subdivision have decreased the firm (or subdivision) described in name and location of each absolutely; and paragraph (2) accounted for at least 20 determination references the impact C. Increased imports of articles like or percent of the production or sales of the date for all workers of such directly competitive with articles workers’ firm; or determination. produced by such firm or subdivision (B) A loss or business by the workers’ The following certifications have been have contributed importantly to such firm with the firm (or subdivision) issued. The requirements of Section workers’ separation or threat of described in paragraph (2) contributed 222(a)(2)(A) (increased imports) and separation and to the decline in sales or importantly to the workers’ separation Section 246(a)(3)(A)(ii) of the Trade Act production of such firm or subdivision; or threat of separation. have been met. or In order for the Division of Trade TA–W–63,694; Klaussner Furniture II. Section (a)(2)(B)—both of the Adjustment Assistance to issue a Industries, Inc., Asheboro, NC: July following must be satisfied: certification of eligibility to apply for 31, 2008. A. A significant number or proportion Alternative Trade Adjustment TA–W–63,521; Daltile, Inc., A of the workers in such workers’ firm, or Assistance (ATAA) for older workers, Subsidiary of Mohawk Industries, an appropriate subdivision of the firm, the group eligibility requirements of Dallas, TX: June 10, 2007.

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TA–W–63,382; Stanley-National TA–W–63,662; SteelCase Inc., City of The following certifications have been Manufacturing Co, National Sales Industry Plant, City of Industry, CA: issued. The requirements of Section Co., National Manufacturing, July 9, 2007. 222(b) (downstream producer for a firm Sterling, IL: March 2, 2008. TA–W–63,660; Advance Transformer, whose workers are certified eligible to TA–W–63,361; H & R 1871, LLC, Philips Lighting Division, Boscobel, apply for TAA based on increased Gardner, MA: May 7, 2007. WI: August 11, 2008. imports from or a shift in production to TA–W–63,691; NewPage Corporation, TA–W–63,657; Delta Apparel, Inc., Mexico or Canada) and Section Niagara Mill, Niagara, WI: July 11, Maiden Division, Maiden, NC: July 246(a)(3)(A)(ii) of the Trade Act have 2007. 4, 2007. been met. TA–W–63,687; International Wood LLC, TA–W–63,650; Orcon Corporation, None. Weslaco, TX: July 11, 2007. Union City, CA: June 27, 2007. Negative Determinations for Alternative TA–W–63,672; ECD, Inc., Hillside, NJ: TA–W–63,602; Talport Industries, LLC, Trade Adjustment Assistance July 9, 2007. Yazoo City, MS: June 24, 2007. TA–W–63,576; Matador Tool and Die, TA–W–63,602A; Talport Industries, In the following cases, it has been Inc., Grand Rapids, MI: June 19, LLC, Hattiesburg, MS: June 24, determined that the requirements of 2007. 2007. 246(a)(3)(A)(ii) have not been met for TA–W–63,555; Monarchy Holding Inc., TA–W–63,591; Southwest Metal the reasons specified. Hurd Window and Door, Medford, Finishing, Inc., New Berlin, WI: The Department has determined that WI: June 17, 2007. June 23, 2007. criterion (1) of Section 246 has not been TA–W–63,531; William Pinchbeck, Inc., TA–W–63,587; SAF Holland USA, Inc., met. The firm does not have a dba Pinchbeck Roses, Guilford, CT: A Division of SAF Holland, Inc., significant number of workers 50 years June 12, 2007. Holland, MI: June 10, 2007. of age or older. TA–W–63,462; Carthage Fabrics, Inc., TA–W–63,503; 3 Day Blinds, Inc., TA–W–63,698; Filtran, Inc., Carthage, NC: May 28, 2007. Anaheim, CA: June 6, 2007. TA–W–63,436; Ponderay Newsprint Ogdensburg, NY. TA–W–63,585; CAPS Group TA–W–63,692; Firewire Surfboards, San Company, Usk, WA: May 20, 2007. Acquisition, LLC, Black Dot Group, TA–W–63,384; Robertshaw Controls Diego, CA. Crystal Lake, IL: June 23, 2007. Company, d/b/a Invensys Controls, The Department has determined that TA–W–63,684; Orbeco-Hellige, Inc., West Plains, MO: May 1, 2007. criterion (2) of Section 246 has not been Orbeco Analytical Systems, TA–W–63,276; Quip Industries, Inc., met. Workers at the firm possess skills Farmingdale, NY: July 13, 2007. Carlyle, IL: April 28, 2007. that are easily transferable. TA–W–62,849; NewPage Corporation, TA–W–63,670; American of Martinsville, GCA Temporary None. Formerly Known as Stora Enso The Department has determined that North America, Stamford, CT: Staffing and Ameristaff, Martinsville, VA: July 9, 2007. criterion (3) of Section 246 has not been February 13, 2007. met. Competition conditions within the TA–W–62,726; Metaldyne Corporation, TA–W–63,644; Siemens Medical Solutions Diagnostics, Reagent Mfg. workers’ industry are not adverse. QC Select, Farmington Hills, MI: None. January 17, 2007. 5210 Pacific Concourse Drive, Los TA–W–63,705; Border Apparel Angeles, CA: July 1, 2007. Negative Determinations for Worker Laundry, Ltd, 6969 B Industrial TA–W–63,644A; Siemens Medical Adjustment Assistance and Alternative Avenue, El Paso, TX: July 15, 2007. Solutions Diagnostics, Reagent Mfg. Trade Adjustment Assistance TA–W–63,482; Northridge Mills, Inc., 5700 W. 96th Street Facility, Los Angeles, CA: July 1, 2007. In the following cases, the San Fernando, CA: May 22, 2007. investigation revealed that the eligibility The following certifications have been TA–W–63,282; Barco Medical Imaging Div., Operating and Shipping criteria for worker adjustment assistance issued. The requirements of Section have not been met for the reasons 222(a)(2)(B) (shift in production) and Group, Beaverton, OR: April 29, 2007. specified. Section 246(a)(3)(A)(ii) of the Trade Act Because the workers of the firm are The following certifications have been have been met. not eligible to apply for TAA, the issued. The requirements of Section TA–W–63,756; Avery Dennison workers cannot be certified eligible for 222(b) (supplier to a firm whose workers Corporation, Paxar Americas, Inc & ATAA. are certified eligible to apply for TAA) Brand, Foothills Temp, Lenoir, NC: The investigation revealed that and Section 246(a)(3)(A)(ii) of the Trade May 19, 2008. criteria (a)(2)(A)(I.A.) and (a)(2)(B)(II.A.) Act have been met. TA–W–63,741; KLA-Tencor (employment decline) have not been Corporation, ADE Div., Superior, TA–W–63,695; Tubular Metal Systems, met. LLC, A Subsidiary of Global Adecco, Adecco Tech, MRI, None. Aerotek, Tucson, AZ: July 23, 2007. Automotive Systems, LLC, Pinconning, MI: July 14, 2007. The investigation revealed that TA–W–63,697; MTD Southwest, Inc., criteria (a)(2)(A)(I.B.) (Sales or Plastics Department, Tempe, AZ: TA–W–63,689; Brazeway, Inc., Adrian, MI: July 2, 2007. production, or both, did not decline) July 12, 2007. and (a)(2)(B)(II.B.) (shift in production TA–W–63,690; Burle Industries, Inc., A TA–W–63,642; Enercon, Bonney to a foreign country) have not been met. subsidiary of Photonis Holding Staffing and Kelley Services, Gray, SAS, Lancaster, PA: July 8, 2008. ME: July 1, 2007. TA–W–63,272; Lifetime Brands, Inc., TA–W–63,683; Numatech, Inc., A TA–W–63,642A; Enercon, Bonney Product Development-Direct to Subsidiary of Emerson Electric Staffing and Kelley Services, Consumer Div., York, PA. Company, Wixom, MI: July 10, Auburn, ME: July 1, 2007. The investigation revealed that 2007. TA–W–63,631; Hoover Universal, criteria (a)(2)(A)(I.C.) (increased TA–W–63,682; Artistics Plating and Subsidiary of Johnson Controls, imports) and (a)(2)(B)(II.B.) (shift in Metal Finishing, Inc., Anaheim, CA: West Carrollton Div, West production to a foreign country) have July 14, 2007. Carrollton, OH: August 11, 2008. not been met.

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TA–W–63,717; Auxora, Inc., Baldwin is not a supplier to or a downstream DEPARTMENT OF LABOR Park, CA. producer for a firm whose workers were TA–W–63,713; Canterbury Printing certified eligible to apply for TAA. Employment and Training Company of Rome Incorporated, Administration None. Rome, NY. [TA–W–63,729] TA–W–63,661; Samuel Aaron Inc., Long I hereby certify that the Island City, NY. aforementioned determinations were Manugraph DGM, Inc., Millersburg, PA; TA–W–63,609; C.A. Garner Veneer, Inc., issued during the period of July 21 Notice of Termination of Investigation Smithfield, KY. through August 1, 2008. Copies of these Pursuant to section 221 of the Trade TA–W–63,530; McNaughton Apparel determinations are available for Act of 1974, as amended, an Group, Inc., Moderate Sportsware inspection in Room C–5311, U.S. investigation was initiated on July 23, Division, New York, NY. Department of Labor, 200 Constitution TA–W–63,507; RF Micro Devices, 2008 in response to a petition filed by Avenue, NW., Washington, DC 20210 a company official on behalf of workers Broomfield, CO. during normal business hours or will be TA–W–63,487; Occidental Chemical at Manugraph DGM, Inc., Millersburg, mailed to persons who write to the Pennsylvania. The workers at the Corporation, Muscle Shoals, AL. above address. TA–W–63,467; JM Eagle, A Subsidiary subject facility produce web offset of JM Manufacturing Company, Dated: August 8, 2008. printing presses. The petitioner has requested that the Inc., Hastings, NE. Erin Fitzgerald, TA–W–63,383; WT Solutions, St. petition be withdrawn. Consequently, Director, Division of Trade Adjustment the investigation has been terminated. Johnsbury, VT. Assistance. TA–W–63,359; Mania Technologie [FR Doc. E8–18580 Filed 8–11–08; 8:45 am] Signed in Washington, DC, this 1st day of Production Systems, Inc., South August 2008. BILLING CODE 4510–FN–P Windsor, CT. Richard Church, TA–W–63,359A; Mania Technologie, Certifying Officer, Division of Trade Adjustment Assistance. Inc. (US), South Windsor, CT. DEPARTMENT OF LABOR TA–W–63,295; Visteon Corporation [FR Doc. E8–18578 Filed 8–11–08; 8:45 am] Regional Assembly, Fuel Delivery— Employment and Training BILLING CODE 4510–FN–P Climate Group Div., Concordia, Administration MO. TA–W–63,130; Sea Gull Lighting DEPARTMENT OF LABOR Products LLC, Riverside, NJ. [TA–W–63,617] Employment and Training TA–W–63,192; Shiloh Industries, Comprehensive Logistic, Inc., Liverpool Manufacturing Division, Administration Including Leased Workers of Source Valley City, OH. Providers, Inc., Youngstown, Ohio; Investigations Regarding Certifications TA–W–62,895; Siny Corp. d/b/a Notice of Termination of Investigation of Eligibility To Apply for Worker Monterey Mills, Janesville, WI. Adjustment Assistance and Alternative The workers’ firm does not produce Pursuant to Section 221 of the Trade Trade Adjustment Assistance an article as required for certification Act of 1974, as amended, an Petitions have been filed with the under Section 222 of the Trade Act of investigation was initiated on June 30, 1974. Secretary of Labor under Section 221(a) 2008, in response to a worker petition of the Trade Act of 1974 (‘‘the Act’’) and TA–W–63,720; Alvan Motor Freight, filed by a company official on behalf of are identified in the Appendix to this Inc., Kalamazoo, MI. workers of Comprehensive Logistics, notice. Upon receipt of these petitions, TA–W–63,714; Publishers Circulation Inc., including leased workers of Source the Director of the Division of Trade Fulfillment, Customer Care Center, Providers, Inc. employed on-site at the Adjustment Assistance, Employment Waltham, MA. Ford Motor Company, Louisville and Training Administration, has TA–W–63,693; Classic Components instituted investigations pursuant to Corporation, Scottsdale, AZ. Assembly Plant, Vehicle Operations Division, Louisville, Kentucky. Section 221(a) of the Act. TA–W–63,681; Invensys Controls/ The purpose of each of the The petitioning group of workers is Ranco, Plain City, OH. investigations is to determine whether TA–W–63,678; Volex, Inc., VIS–US covered by an active certification, (TA– the workers are eligible to apply for Division, Hickory, NC. W–62,214 as amended) which expires adjustment assistance under Title II, TA–W–63,665; University at Buffalo on November 8, 2009. Consequently, Chapter 2, of the Act. The investigations Foundation Inc., Millard Fillmore further investigation in this case would will further relate, as appropriate, to the College, Buffalo, NY. serve no purpose, and the investigation determination of the date on which total TA–W–63,664; WM. Wright Co., has been terminated. or partial separations began or Wrights Factory Outlet, Fiskdale, threatened to begin and the subdivision MA. Signed at Washington, DC, this 31st day of July 2008. of the firm involved. TA–W–63,653; Chase Home Finance The petitioners or any other persons Richard Church, LLC, A Division of J P Morgan showing a substantial interest in the Chase & Co., Lexington, KY. Certifying Officer, Division of Trade subject matter of the investigations may TA–W–63,643; Zafarana Enterprises, Adjustment Assistance. request a public hearing, provided such Inc., Lathrup Village, MI. [FR Doc. E8–18585 Filed 8–11–08; 8:45 am] request is filed in writing with the TA–W–63,309; Tache USA, Inc., Long BILLING CODE 4510–FN–P Director, Division of Trade Adjustment Island City, NY. Assistance, at the address shown below, The investigation revealed that not later than August 22, 2008. criteria of Section 222(b)(2) has not been Interested persons are invited to met. The workers’ firm (or subdivision) submit written comments regarding the

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subject matter of the investigations to the Director, Division of Trade Signed at Washington, DC, this 6th day of the Director, Division of Trade Adjustment Assistance, Employment August 2008. Adjustment Assistance, at the address and Training Administration, U.S. Linda G. Poole, shown below, not later than August 22, Department of Labor, Room C–5311, 200 Certifying Officer, Division of Trade 2008. Constitution Avenue, NW., Washington, Adjustment Assistance. The petitions filed in this case are DC 20210. available for inspection at the Office of

APPENDIX TAA petitions instituted between 7/28/08 and 8/1/08

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

63748 ...... Great Eastern Mussel Farms, Inc. (Comp) ...... Tenants Harbor, ME ...... 07/28/08 07/25/08 63749 ...... Lear Corporation (Wkrs) ...... Bridgeton, MO ...... 07/28/08 07/24/08 63750 ...... Hi-Jon, Inc. (Wkrs) ...... San Francisco, CA ...... 07/28/08 07/18/08 63751 ...... Comau, Inc., Novi Industries (Comp) ...... Novi, MI ...... 07/28/08 07/23/08 63752 ...... San Francisco Network (Wkrs) ...... San Rafael, CA ...... 07/28/08 07/18/08 63753 ...... Elbeco Inc, Transcontinental Acquisition Grp Div. (Comp) .. Los Angeles, CA ...... 07/28/08 07/25/08 63754 ...... Lane Furniture Ind. (Wkrs) ...... Belden, MS ...... 07/29/08 07/28/08 63755 ...... MWR (CWA) ...... Sidney, NY ...... 07/29/08 07/09/08 63756 ...... Avery Dennison Corporation (Comp) ...... Lenoir, NC ...... 07/29/08 07/28/08 63757 ...... Continental Sprayers International, Inc. (State) ...... Bridgeport, CT ...... 07/29/08 07/28/08 63758 ...... Lear Corporation (Wkrs) ...... El Paso, TX ...... 07/29/08 07/25/08 63759 ...... S. Shamash and Sons (Wkrs) ...... New York, NY ...... 07/29/08 07/21/08 63760 ...... American Racing Equipment (Rep) ...... Rancho Dominguez, CA ...... 07/29/08 06/24/08 63761 ...... Level 3 (Wkrs) ...... Austin, TX ...... 07/29/08 07/28/08 63762 ...... Westin Automotive (State) ...... St. James, MN ...... 07/29/08 07/28/08 63763 ...... Bennington Paperboard (Comp) ...... N. Hoosick, NY ...... 07/29/08 07/28/08 63764 ...... Haverhill Paperboard (Comp) ...... Bradford, MA ...... 07/29/08 07/28/08 63765 ...... Campbell Manufacturing (State) ...... Sparta, MO ...... 07/29/08 07/25/08 63766 ...... Federal-Mogul Corporation (Comp) ...... Boyertown, PA ...... 07/29/08 07/24/08 63767 ...... Pride Manufacturing Co., LLC (Comp) ...... Guilford, ME ...... 07/30/08 07/28/08 63768 ...... Zagaroli Classics, Inc. (State) ...... Hickory, NC ...... 07/30/08 07/28/08 63769 ...... TSI Graphics (State) ...... Effingham, IL ...... 07/30/08 07/28/08 63770 ...... ACCO Brands—GBC (Wkrs) ...... Pleasant Prairie, WI ...... 07/30/08 07/28/08 63771 ...... Blue Water Automotive Systems, Inc. (Wkrs) ...... Burlington, NC ...... 07/30/08 07/25/08 63772 ...... Rogue Valley Door (Wkrs) ...... Grants Pass, OR ...... 07/30/08 07/29/08 63773 ...... Enviro-Powder Company (Comp) ...... Caledonia, MI ...... 07/30/08 07/29/08 63774 ...... AME Manufacturing, Inc. (Wkrs) ...... Riverside, CA ...... 07/30/08 07/25/08 63775 ...... Duncan Solutions (State) ...... Harrison, AR ...... 07/31/08 07/30/08 63776 ...... GE Consumer and Industrial Lighting (IUECWA) ...... Cleveland, OH ...... 07/31/08 07/29/08 63777 ...... Wilton Armetale (Comp) ...... Mount Joy, PA ...... 07/31/08 07/09/08 63778 ...... Chuck Roast Equipment, Inc. (Comp) ...... Conway, NH ...... 07/31/08 07/31/08 63779 ...... Wee Ones, Inc. (Wkrs) ...... Louisiana, MO ...... 07/31/08 07/30/08 63780 ...... Newell Rubbermaid (State) ...... Maryville, TN ...... 07/31/08 07/30/08 63781 ...... Dow Reichhold Specialty Latex, LLC (Comp) ...... Chickamauga, GA ...... 07/31/08 07/30/08 63782 ...... Whirlpool Corporation (Comp) ...... LaVergne, TN ...... 07/31/08 07/29/08 63783 ...... Kellsport Industries, Inc. (Comp) ...... Fall River, MA ...... 07/31/08 07/30/08 63784 ...... Stimson Lumber Company (Wkrs) ...... Colville, WA ...... 07/31/08 07/22/08 63785 ...... American Wood Mark (State) ...... Ham Lake, MN ...... 08/01/08 07/31/08 63786 ...... International Automotive Components—North America Rochester Hills, MI ...... 08/01/08 07/29/08 (State). 63787 ...... Bowne (Wkrs) ...... Atlanta, GA ...... 08/01/08 07/25/08 63788 ...... Hanes Dye and Finishing (Wkrs) ...... Butner, NC ...... 08/01/08 07/30/08 63789 ...... Spectra-Physics (Wkrs) ...... Tucson, AZ ...... 08/01/08 07/28/08 63790 ...... The Fish Harder Companies, LLC (Wkrs) ...... Indiana, PA ...... 08/01/08 07/31/08 63791 ...... Thermo Fisher Scientific—SAMCO (Wkrs) ...... San Fernando, CA ...... 08/01/08 07/28/08 63792 ...... Caraaustar—Chattanooga Paperboard (AFLCIO) ...... Chattanooga, TN ...... 08/01/08 07/31/08

[FR Doc. E8–18579 Filed 8–11–08; 8:45 am] BILLING CODE 4510–FN–P

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DEPARTMENT OF LABOR Signed in Washington, DC, this 6th day of publication of this notice will be August 2008. considered in making any final Employment and Training Linda G. Poole, determination. Administration Certifying Officer, Division of Trade Normally, the Commission will not Adjustment Assistance. issue the amendment until the [FR Doc. E8–18584 Filed 8–11–08; 8:45 am] [TA–W–63,604] expiration of 60 days after the date of BILLING CODE 4510–FN–P Destron Fearing Corporation, Animal publication of this notice. The Applications Division, South Saint Commission may issue the license Paul, MN; Notice of Revised NUCLEAR REGULATORY amendment before expiration of the 60- Determination on Reconsideration of COMMISSION day period provided that its final Alternative Trade Adjustment determination is that the amendment Assistance Biweekly Notice; Applications and involves no significant hazards Amendments to Facility Operating consideration. In addition, the By letter dated July 30, 2008, a State Licenses Involving No Significant Commission may issue the amendment agency representative requested Hazards Considerations prior to the expiration of the 30-day administrative reconsideration comment period should circumstances I. Background regarding Alternative Trade Adjustment change during the 30-day comment Assistance (ATAA) applicable to Pursuant to section 189a. (2) of the period such that failure to act in a workers of the subject firm. The Atomic Energy Act of 1954, as amended timely way would result, for example in negative determination was signed on (the Act), the U.S. Nuclear Regulatory derating or shutdown of the facility. July 17, 2008 and published in the Commission (the Commission or NRC Should the Commission take action Federal Register on July 30, 2008 (73 FR staff) is publishing this regular biweekly prior to the expiration of either the 44284). notice. The Act requires the comment period or the notice period, it The workers of Destron Fearing Commission publish notice of any will publish in the Federal Register a Corporation, Animal Applications amendments issued, or proposed to be Division, South Saint Paul, Minnesota issued and grants the Commission the notice of issuance. Should the were certified eligible to apply for Trade authority to issue and make Commission make a final No Significant Adjustment Assistance (TAA) on July immediately effective any amendment Hazards Consideration Determination, 17, 2008. to an operating license upon a any hearing will take place after The initial ATAA investigation determination by the Commission that issuance. The Commission expects that determined that the skills of the subject such amendment involves no significant the need to take this action will occur worker group are easily transferable to hazards consideration, notwithstanding very infrequently. other positions in the local area. the pendency before the Commission of Written comments may be submitted In the request for reconsideration, the a request for a hearing from any person. by mail to the Chief, Rulemaking, petitioner provided sufficient This biweekly notice includes all Directives and Editing Branch, Division information confirming that the skills of notices of amendments issued, or of Administrative Services, Office of proposed to be issued from July 17, the workers at the subject firm are not Administration, U.S. Nuclear Regulatory 2008 to July 30, 2008. The last biweekly easily transferable in the local Commission, Washington, DC 20555– commuting area. notice was published on July 29, 2008 (73 FR 43953). 0001, and should cite the publication Additional investigation has date and page number of this Federal determined that the workers possess Notice of Consideration of Issuance of Register notice. Written comments may skills that are not easily transferable. A Amendments to Facility Operating also be delivered to Room 6D22, Two significant number or proportion of the Licenses, Proposed No Significant White Flint North, 11545 Rockville worker group are age fifty years or over. Hazards Consideration Determination, Pike, Rockville, Maryland, from 7:30 Competitive conditions within the and Opportunity for a Hearing a.m. to 4:15 p.m. Federal workdays. industry are adverse. The Commission has made a Copies of written comments received Conclusion proposed determination that the may be examined at the Commission’s following amendment requests involve Public Document Room (PDR), located After careful review of the additional no significant hazards consideration. at One White Flint North, Public File facts obtained on reconsideration, I Under the Commission’s regulations in conclude that the requirements of Area O1F21, 11555 Rockville Pike (first 10 CFR 50.92, this means that operation floor), Rockville, Maryland. The filing of Section 246 of the Trade Act of 1974, as of the facility in accordance with the amended, have been met for workers at requests for a hearing and petitions for proposed amendment would not (1) leave to intervene is discussed below. the subject firm. involve a significant increase in the In accordance with the provisions of probability or consequences of an Within 60 days after the date of the Act, I make the following accident previously evaluated; or (2) publication of this notice, person(s) may certification: create the possibility of a new or file a request for a hearing with respect All workers of Destron Fearing different kind of accident from any to issuance of the amendment to the Corporation, Animal Applications Division, accident previously evaluated; or (3) subject facility operating license and South Saint Paul, Minnesota, who became involve a significant reduction in a any person whose interest may be totally or partially separated from margin of safety. The basis for this affected by this proceeding and who employment on or after June 26, 2007 proposed determination for each wishes to participate as a party in the through July 17, 2010, are eligible to apply proceeding must file a written request for trade adjustment assistance under Section amendment request is shown below. 223 of the Trade Act of 1974 and are also The Commission is seeking public via electronic submission through the eligible to apply for alternative trade comments on this proposed NRC E-Filing system for a hearing and adjustment assistance under Section 246 of determination. Any comments received a petition for leave to intervene. the Trade Act of 1974. within 30 days after the date of Requests for a hearing and a petition for

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leave to intervene shall be filed in to rely to establish those facts or expert electronic docket for the proceeding accordance with the Commission’s opinion. The petition must include (even in instances in which the ‘‘Rules of Practice for Domestic sufficient information to show that a petitioner/requestor (or its counsel or Licensing Proceedings’’ in 10 CFR Part genuine dispute exists with the representative) already holds an NRC- 2. Interested person(s) should consult a applicant on a material issue of law or issued digital ID certificate). Each current copy of 10 CFR 2.309, which is fact. Contentions shall be limited to petitioner/requestor will need to available at the Commission’s PDR, matters within the scope of the download the Workplace Forms located at One White Flint North, Public amendment under consideration. The ViewerTM to access the Electronic File Area 01F21, 11555 Rockville Pike contention must be one which, if Information Exchange (EIE), a (first floor), Rockville, Maryland. proven, would entitle the petitioner/ component of the E-Filing system. The Publicly available records will be requestor to relief. A petitioner/ Workplace Forms ViewerTM is free and accessible from the Agencywide requestor who fails to satisfy these is available at http://www.nrc.gov/site- Documents Access and Management requirements with respect to at least one help/e-submittals/install-viewer.html. System’s (ADAMS) Public Electronic contention will not be permitted to Information about applying for a digital Reading Room on the Internet at the participate as a party. ID certificate is available on NRC’s NRC Web site, http://www.nrc.gov/ Those permitted to intervene become public Web site at http://www.nrc.gov/ reading-rm/doc-collections/cfr/. If a parties to the proceeding, subject to any site-help/e-submittals/apply- request for a hearing or petition for limitations in the order granting leave to certificates.html. leave to intervene is filed within 60 intervene, and have the opportunity to Once a petitioner/requestor has days, the Commission or a presiding participate fully in the conduct of the obtained a digital ID certificate, had a officer designated by the Commission or hearing. docket created, and downloaded the EIE by the Chief Administrative Judge of the If a hearing is requested, and the viewer, it can then submit a request for Atomic Safety and Licensing Board Commission has not made a final hearing or petition for leave to Panel, will rule on the request and/or determination on the issue of no intervene. Submissions should be in petition; and the Secretary or the Chief significant hazards consideration, the Portable Document Format (PDF) in Administrative Judge of the Atomic Commission will make a final accordance with NRC guidance Safety and Licensing Board will issue a determination on the issue of no available on the NRC public Web site at notice of a hearing or an appropriate significant hazards consideration. The http://www.nrc.gov/site-help/e- order. final determination will serve to decide submittals.html. A filing is considered As required by 10 CFR 2.309, a when the hearing is held. If the final complete at the time the filer submits its petition for leave to intervene shall set determination is that the amendment documents through EIE. To be timely, forth with particularity the interest of request involves no significant hazards an electronic filing must be submitted to the petitioner in the proceeding, and consideration, the Commission may the EIE system no later than 11:59 p.m. how that interest may be affected by the issue the amendment and make it Eastern Time on the due date. Upon results of the proceeding. The petition immediately effective, notwithstanding receipt of a transmission, the E-Filing should specifically explain the reasons the request for a hearing. Any hearing system time-stamps the document and why intervention should be permitted held would take place after issuance of sends the submitter an e-mail notice with particular reference to the the amendment. If the final confirming receipt of the document. The following general requirements: (1) The determination is that the amendment EIE system also distributes an e-mail name, address, and telephone number of request involves a significant hazards notice that provides access to the the requestor or petitioner; (2) the consideration, any hearing held would document to the NRC Office of the nature of the requestor’s/petitioner’s take place before the issuance of any General Counsel and any others who right under the Act to be made a party amendment. have advised the Office of the Secretary to the proceeding; (3) the nature and A request for hearing or a petition for that they wish to participate in the extent of the requestor’s/petitioner’s leave to intervene must be filed in proceeding, so that the filer need not property, financial, or other interest in accordance with the NRC E-Filing rule, serve the documents on those the proceeding; and (4) the possible which the NRC promulgated in August participants separately. Therefore, effect of any decision or order which 28, 2007 (72 FR 49139). The E-Filing applicants and other participants (or may be entered in the proceeding on the process requires participants to submit their counsel or representative) must requestor’s/petitioner’s interest. The and serve documents over the internet apply for and receive a digital ID petition must also set forth the specific or in some cases to mail copies on certificate before a hearing request/ contentions which the petitioner/ electronic storage media. Participants petition to intervene is filed so that they requestor seeks to have litigated at the may not submit paper copies of their can obtain access to the document via proceeding. filings unless they seek a waiver in the E-Filing system. Each contention must consist of a accordance with the procedures A person filing electronically may specific statement of the issue of law or described below. seek assistance through the ‘‘Contact fact to be raised or controverted. In To comply with the procedural Us’’ link located on the NRC Web site addition, the petitioner/requestor shall requirements of E-Filing, at least five (5) at http://www.nrc.gov/site-help/e- provide a brief explanation of the bases days prior to the filing deadline, the submittals.html or by calling the NRC for the contention and a concise petitioner/requestor must contact the technical help line, which is available statement of the alleged facts or expert Office of the Secretary by e-mail at between 8:30 a.m. and 4:15 p.m., opinion which support the contention [email protected], or by calling Eastern Time, Monday through Friday. and on which the petitioner/requestor (301) 415–1677, to request (1) a digital The help line number is (800) 397–4209 intends to rely in proving the contention ID certificate, which allows the or locally, (301) 415–4737. at the hearing. The petitioner/requestor participant (or its counsel or Participants who believe that they must also provide references to those representative) to digitally sign have a good cause for not submitting specific sources and documents of documents and access the E-Submittal documents electronically must file a which the petitioner is aware and on server for any proceeding in which it is motion, in accordance with 10 CFR which the petitioner/requestor intends participating; and/or (2) creation of an 2.302(g), with their initial paper filing

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requesting authorization to continue to documents located in ADAMS, contact subsequently issued a notice of submit documents in paper format. the PDR Reference staff at 1 (800) 397– availability of the models for referencing Such filings must be submitted by: (1) 4209, (301) 415–4737 or by e-mail to in license amendment applications in First class mail addressed to the Office [email protected]. the Federal Register on August 16, 2007 of the Secretary of the Commission, U.S. AmerGen Energy Company, LLC, (72 FR 46103), which included the Nuclear Regulatory Commission, Docket No. 50–461, Clinton Power resolution of public comments on the Washington, DC 20555–0001, Attention: Station, Unit No. 1, DeWitt County, model SE. The August 16, 2007, notice Rulemaking and Adjudications Staff; or Illinois. of availability referenced the November (2) courier, express mail, or expedited Exelon Generation Company, LLC, 13, 2007, notice. The licensee has delivery service to the Office of the Docket Nos. 50–237 and 50–249, affirmed the applicability of the Secretary, Sixteenth Floor, One White Dresden Nuclear Power Station, Units 2 November 13, 2007, NSHC Flint North, 11555 Rockville Pike, and 3, Grundy County, Illinois. determination in its application. Rockville, Maryland, 20852, Attention: Exelon Generation Company, LLC, Basis for proposed no significant Rulemaking and Adjudications Staff. Docket Nos. 50–373 and 50–374, LaSalle hazards consideration determination: Participants filing a document in this County Station, Units 1 and 2, LaSalle As required by 10 CFR 50.91(a), an manner are responsible for serving the County, Illinois. analysis of the issue of no significant document on all other participants. AmerGen Energy Company, LLC, et hazards consideration is presented Filing is considered complete by first- al., Docket No. 50–219, Oyster Creek below: class mail as of the time of deposit in Nuclear Generating Station, Ocean County, New Jersey. Criterion 1—The Proposed Change Does the mail, or by courier, express mail, or Not Involve a Significant Increase in the expedited delivery service upon Exelon Generation Company, LLC, and PSEG Nuclear LLC, Docket Nos. 50– Probability or Consequences of an depositing the document with the Accident Previously Evaluated provider of the service. 277 and 50–278, Peach Bottom Atomic Non-timely requests and/or petitions Power Station, Units 2 and 3, York and The proposed change generically and contentions will not be entertained Lancaster Counties, Pennsylvania. implements TSTF–475, Revision 1, absent a determination by the Exelon Generation Company, LLC, ’’Control Rod Notch Testing Frequency Commission, the presiding officer, or Docket Nos. 50–254 and 50–265, Quad and SRM Insert Control Rod Action.’’ the Atomic Safety and Licensing Board Cities Nuclear Power Station, Units 1 TSTF–475, Revision 1, modifies that the petition and/or request should and 2, Rock Island County, Illinois. NUREG–1433 (BWR/4) and NUREG– be granted and/or the contentions Date of amendment request: June 9, 1434 (BWR/6) STS. The changes: (1) should be admitted, based on a 2008. Revise TS testing frequency for balancing of the factors specified in 10 Description of amendment request: surveillance requirement (SR) 3.1.3.2 in CFR 2.309(c)(1)(i)-(viii). To be timely, The proposed amendments would adopt TS 3.1.3, for the subject plants, except filings must be submitted no later than the Technical Specification Task Force Oyster Creek Nuclear Generating 11:59 p.m. Eastern Time on the due (TSTF) Standard Technical Station, and the TS surveillance date. Specification (STS) change TSTF–475, requirement in TS 4.2, Specification D Documents submitted in adjudicatory Revision 1. The amendments would: (1) for Oyster Creek Nuclear Generating proceedings will appear in NRC’s (a) Revise the TS surveillance Station, (2) clarify the requirement to electronic hearing docket which is requirement (SR) frequency in TS 3.1.3, fully insert all insertable control rods for available to the public at http:// ‘‘Control Rod OPERABILITY’’ (except the limiting condition for operation ehd.nrc.gov/EHD_Proceeding/home.asp, for Oyster Creek Nuclear Generating (LCO) in TS 3.3.1.2, Required Action unless excluded pursuant to an order of Station), and (b) revise the TS E.2, ’’Source Range Monitoring the Commission, an Atomic Safety and surveillance requirement in TS 4.2, Instrumentation’’ (NUREG–1434 only), Licensing Board, or a Presiding Officer. ‘‘Reactivity Control,’’ Specification D and (3) revise Example 1.4–3 in Section Participants are requested not to include (for Oyster Creek Nuclear Generating 1.4, ‘‘Frequency,’’ to clarify the personal privacy information, such as Station); (2) clarify the requirement to applicability of the 1.25 surveillance Social Security numbers, home fully insert all insertable control rods for test interval extension. This change does addresses, or home phone numbers in the limiting condition for operation not affect either the design or operation their filings. With respect to copyrighted (LCO) in TS 3.3.1.2, Required Action of the Control Rod Drive Mechanism works, except for limited excerpts that E.2, ‘‘Source Range Monitoring (CRDM). The affected surveillance and serve the purpose of the adjudicatory Instrumentation’’ (Clinton Power Required Action is not considered to be filings and would constitute a Fair Use Station only); and (3) revise Example an initiator of any analyzed event. application, participants are requested 1.4–3 in section 1.4 ‘‘Frequency’’ to Revising the frequency for notch testing not to include copyrighted materials in clarify the applicability of the 1.25 fully withdrawn control rods will not their submission. surveillance test interval extension affect the ability of the control rods to For further details with respect to this (Oyster Creek Nuclear Generating shutdown the reactor if required. Given amendment action, see the application Station excluded). the extremely reliable nature of the for amendment which is available for The Nuclear Regulatory Commission CRDM, as demonstrated through public inspection at the Commission’s (NRC) staff issued a notice of industry operating experience, the PDR, located at One White Flint North, opportunity for comment in the Federal proposed monthly notch testing of all Public File Area 01F21, 11555 Rockville Register on November 13, 2007 (72 FR withdrawn control rods continues to Pike (first floor), Rockville, Maryland. 63935), on possible license amendments provide a high level of confidence in Publicly available records will be adopting TSTF–475 using the NRC’s control rod operability. Hence, the accessible from the ADAMS Public consolidated line item improvement overall intent of the notch testing Electronic Reading Room on the Internet process (CLIIP) for amending licensees’ surveillances, which is to detect either at the NRC Web site, http:// TSs, which included a model safety random stuck control rods or identify www.nrc.gov/reading-rm/adams.html. If evaluation (SE) and model no generic concerns affecting control rod you do not have access to ADAMS or if significant hazards consideration operability, is not significantly affected there are problems in accessing the (NSHC) determination. The NRC staff by the proposed change. Requiring

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control rods to be fully inserted when The NRC staff proposes to determine 2. Does the proposed amendment create the associated SRM is inoperable is that the amendment requests involve no the possibility of a new or different kind of consistent with other similar significant hazards consideration. accident from any accident previously requirements and will increase the Attorney for licensee: Bradley Fewell, evaluated? Response: No. shutdown margin. The clarification of Associate General Counsel, Exelon The proposed change does not introduce Example 1.4–3 in Section 1.4, Generation Company, LLC, 4300 any new modes of plant operation and will ‘‘Frequency,’’ is an editorial change Winfield Road, Warrenville, IL 60555. not result in a change to the design function made to provide consistency with other NRC Branch Chief: Russell Gibbs. of any structure, system, or component that discussions in Section 1.4. Therefore, Carolina Power & Light Company, et is used for accident mitigation. By allowing the proposed changes do not involve a al., Docket No. 50–400, Shearon Harris the proposed change in the UHS Main significant increase in the probability or Nuclear Power Plant, Unit 1, Wake and Reservoir level, only the parameters for UHS consequences of an accident previously Chatham Counties, North Carolina. operation are changed, while the safety Date of amendment request: April 30, functions of the UHS and systems that evaluated. The consequences of an provide heat sink capability continue to be accident after adopting TSTF–475, 2008. maintained. The UHS function provides Revision 1, are no different than the Description of amendment request: accident mitigation capabilities and does not consequences of an accident prior to The proposed amendment would revise reflect the potential for accident generation. adoption. Therefore, this change does Technical Specification (TS) section Therefore, the possibility for creating a new not involve a significant increase in the 3.7.5a to restore the Ultimate Heat Sink or different kind of accident is not feasible probability or consequences of an (UHS) Main Reservoir minimum level to because the UHS is only utilized for heat accident previously evaluated. the value allowed by the initial removal functions that are not a potential operating license as a result of source for accident generation. Criterion 2—The Proposed Change Does The proposed change does not result in improvements made to the Emergency any credible new failure mechanisms, Not Create the Possibility of a New or Service Water system. The change will Different Kind of Accident From any malfunctions, or accident initiators not allow continued plant operation to a considered in the original design and Accident Previously Evaluated Main Reservoir minimum level of 206 licensing basis. The engineering analyses The proposed change does not feet (ft) Mean Sea Level (MSL) in Modes performed to support the proposed change involve a physical alteration of the plant 1–4, versus the current minimum demonstrate that affected safety-related (no new or different type of equipment allowed level of 215 ft MSL. systems and components are capable of will be installed) or a change in the Basis for proposed no significant performing their intended safety functions at the reduced Main Reservoir level. Therefore, methods governing normal plant hazards consideration determination: the proposed change will not create the operation. The proposed change will not As required by 10 CFR 50.91(a), the possibility of a new or different kind of introduce new failure modes or effects licensee has provided its analysis of the accident from any previously evaluated. and will not, in the absence of other issue of no significant hazards Therefore, the proposed changes do not unrelated failures, lead to an accident consideration, which is presented create the possibility of a new or different whose consequences exceed the below: kind of accident from any accident previously evaluated. consequences of accidents previously 1. Does the proposed amendment involve analyzed. Thus, this change does not 3. Does the proposed amendment involve a significant increase in the probability or a significant reduction in the margin of create the possibility of a new or consequences of an accident previously safety? different kind of accident from any evaluated? Response: No. accident previously evaluated. Response: No. The proposed change has been evaluated The proposed change to decrease the UHS Criterion 3—The Proposed Change Does for systems that are needed to support Main Reservoir minimum level does not alter accident mitigation functions as well as Not Involve a Significant Reduction in the function, design, or operating practices normal operational evolutions. Operational the Margin of Safety for plant systems or components. The UHS margins were found to exist in the systems TSTF–475, Revision 1, will: (1) Revise is utilized to remove heat loads from plant that utilize the UHS capabilities such that the TS SR 3.1.3.2 frequency in TS 3.1.3, systems during normal and accident this proposed change will not result in the conditions. This function is not expected or loss of any safety function necessary for ‘‘Control Rod OPERABILITY,’’ (2) postulated to result in the generation of any clarify the requirement to fully insert all normal or accident conditions. While accident and continues to adequately satisfy operating margins have been reduced by the insertable control rods for the limiting the associated safety functions with the proposed changes, safety margins have been condition for operation (LCO) in TS proposed change. Therefore, the probability maintained as assumed in the accident 3.3.1.2, ‘‘Source Range Monitoring of an accident presently evaluated in the analyses for postulated events. Therefore, the Instrumentation,’’ and (3) revise safety analyses will not be increased because proposed changes do not involve a Example 1.4–3 in Section 1.4, the UHS function does not have the potential significant reduction in the margin of safety. to be the source of an accident. ‘‘Frequency,’’ to clarify the applicability The NRC staff has reviewed the of the 1.25 surveillance test interval The heat loads that the UHS is designed to accommodate have been evaluated for licensee’s analysis and, based on this extension. The GE Nuclear Energy functionality with the reduced level review, it appears that the three Report, ‘‘CRD Notching Surveillance requirement. The result of these evaluations standards of 10 CFR 50.92(c) are Testing for Limerick Generating is that there is existing margin associated satisfied. Therefore, the NRC staff Station,’’ dated November 2006, with the systems that utilize the UHS for proposes to determine that the concludes that extending the control rod normal and accident conditions. This margin amendment request involves no notch test interval from weekly to is sufficient to accommodate the postulated significant hazards consideration. monthly is not expected to impact the normal and accident heat loads with the Attorney for licensee: David T. reliability of the scram system and that proposed change to the UHS. Since the safety Conley, Associate General Counsel II— the analysis supports the decision to functions of the UHS are maintained, the systems that ensure acceptable offsite dose Legal Department, Progress Energy change the surveillance frequency. consequences will continue to operate as Service Company, LLC, Post Office Box Therefore, the proposed changes in designed. Therefore, the proposed change 1551, Raleigh, North Carolina 27602. TSTF–475, Revision 1, do not involve a does not involve a significant increase in the NRC Branch Chief: Thomas H. Boyce. significant reduction in a margin of probability or consequences of an accident Exelon Generation Company, LLC, safety. previously evaluated. Docket Nos. 50–373 and 50–374, LaSalle

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County Station, Units 1 and 2, LaSalle possibility of a new or different kind of 1. Does the proposed amendment involve County, Illinois. accident from any accident previously a significant increase in the probability or Date of amendment request: May 2, evaluated. consequences of an accident previously 2008. 3. Does the proposed TS change involve a evaluated? Description of amendment request: significant reduction in a margin of safety? Response: No. The proposed amendments would Response: No. The low pressure Emergency Core Cooling The proposed change relocates the System (ECCS) subsystems are designed to revise Technical Specification (TS) numerical volumes of diesel fuel oil required inject to reflood or to spray the core after any 3.8.3, ‘‘Diesel Fuel Oil and Starting to support seven-day operation of the onsite size break up to and including a design basis Air,’’ to replace the numerical volume DGs, and the numerical volumes equivalent Loss of Coolant Accident (LOCA). The requirements for stored diesel fuel oil to a six-day supply, to licensee control. As proposed changes to the Required Actions inventory with requirements that state the bases for the existing limits on diesel fuel and associated Completion Times do not that volumes equivalent to seven days oil are not changed, no change is made to the change the conditions, operating and six days of fuel oil are available. accident analysis assumptions, and no configurations, or minimum amount of Exelon Generation Company is margin of safety is reduced as part of this operating equipment assumed in the safety change. analysis for accident mitigation. No changes requesting to move the diesel fuel oil are proposed to the manner in which the numerical volumes equivalent to seven- Therefore, the proposed change does not involve a significant reduction in a margin of ECCS provides plant protection or which day and six-day supplies to the TS safety. would create new modes of plant operation. Bases. The proposed changes will not affect the Basis for proposed no significant The NRC staff has reviewed the probability of any event initiators. There will hazards consideration determination: licensee’s analysis and, based on this be no degradation in the performance of, or As required by 10 CFR 50.91(a), the review, it appears that the three an increase in the number of challenges licensee has provided its analysis of the standards of 10 CFR 50.92(c) are imposed on, safety related equipment issue of no significant hazards satisfied. Therefore, the NRC staff assumed to function during an accident proposes to determine that the situation. There will be no change to normal consideration, which is presented plant operating parameters or accident below: requested amendments involve no significant hazards consideration. mitigation performance. Therefore, the proposed changes do not 1. Does the proposed TS change involve a Attorney for licensee: Mr. Bradley J. significant increase in the probability or involve a significant increase in the consequences of an accident previously Fewell, Associate General Counsel, probability or consequences of an accident evaluated? Exelon Generation Company, LLC, 4300 previously evaluated. Response: No. Winfield Road, Warrenville, IL 60555. 2. Does the proposed amendment create The proposed change relocates the NRC Branch Chief: Russell Gibbs. the possibility of a new or different kind of numerical volume of diesel fuel oil required Nuclear Management Company, LLC, accident from any accident previously to support seven-day operation of the onsite Docket No. 50–263, Monticello Nuclear evaluated? DGs [diesel generators], and the numerical Generating Plant, Wright County, Response: No. volume equivalent to a six-day supply, to Minnesota. There are no hardware changes nor are licensee control. The specific volumes of fuel Date of amendment request: June 26, there any changes in the method by which oil equivalent to a seven-day and six day any plant systems perform a safety function. supply is calculated considering the DG 2008. This request does not affect the normal manufacturer’s fuel oil consumption rates Description of amendment request: method of plant operation. and the energy content of ULSD [ultra low The licensee proposed to amend the The proposed changes do not introduce sulfur diesel] fuel. Moreover, these Technical Specifications, revising new equipment, which could create a new or calculations consider the entire range of API existing Condition D of Specification different kind of accident. No new external [American Petroleum Industry] gravities 3.5.1, ‘‘ECCS [Emergency Core Cooling threats, release pathways, or equipment allowed by the LSCS [LaSalle County System]—Operating,’’ to: (1) Apply to failure modes are created. No new accident Station] Diesel Fuel Oil Testing Program. The two entire Low-Pressure Core Injection scenarios, transient precursors, failure requirement to meet UFSAR [Updated Final mechanisms, or limiting single failures are Safety Analysis Report] 9.5.4.1.1.d, diesel (LPCI) subsystems being inoperable (currently, the Condition applies when introduced as a result of this request. loading assumptions, maintain a seven-day Therefore, the implementation of the supply, and the actions taken when the two LPCl subsystems are inoperable due proposed changes will not create a possibility volume of fuel oil available is less than a six- to inoperable injection paths); (2) add a for an accident of a new or different type day supply have not changed. These new Condition E to provide a 72-hour than those previously evaluated. requirements remain consistent with the completion time when one Core Spray 3. Does the proposed amendment involve assumptions in the accident analyses, and neither the probability, nor the consequences subsystem and one LPCl subsystem (or a significant reduction in a margin of safety? of any accident previously evaluated will be one or two LPCl pump(s) are inoperable; Response: No. affected by the proposed change. (3) add a new Condition F to provide a The ECCS are designed with sufficient Therefore, the proposed change does not 72-hour completion time when both redundancy such that a division of low involve a significant increase in the Core Spray subsystems are inoperable; pressure ECCS may be removed from service probability or consequences of an accident for maintenance or testing. The remaining and (4) re-designate the Conditions and subsystems are capable of providing water previously evaluated. Required Actions (starting at existing 2. Does the proposed TS change create the and removing heat loads to satisfy the possibility of a new or different kind of letter E) to reflect the insertion of new Updated Safety Analysis Report requirements accident from any previously evaluated? Conditions E and F (i.e., these are for accident mitigation or unit safe Response: No. purely editorial changes). shutdown. The proposed change does not involve any Basis for proposed no significant There will be no change to the manner in physical alteration of the plant (i.e., no new hazards consideration determination: which the safety limits or limiting safety or different type of equipment will be As required by Title 10 of the Code of system settings are determined nor will there installed), or affect the control parameters Federal Regulations (10 CFR) Part be any change to those plant systems necessary to assure the accomplishment of governing unit operation, or the response of 50.91(a), the licensee has provided its plant equipment to transient conditions. The protection functions. There will be no change proposed change is consistent with the safety analysis of the issue of no significant to post-LOCA peak clad temperatures. analysis assumptions. hazards consideration (NSHC). The For these reasons, the proposed Based on the above information, the licensee’s NSHC analysis is reproduced amendment does not involve a significant proposed change does not create the below: reduction in a margin of safety.

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The NRC staff has reviewed the reading-rm/adams.html. If you do not Specifications for Combustion licensee’s analysis and, based on the have access to ADAMS or if there are Engineering Plants.’’ NRC staff’s own analysis above, it problems in accessing the documents Date of issuance: July 23, 2008. appears that the three standards of 10 located in ADAMS, contact the PDR Effective date: As of the date of CFR 50.92(c) are satisfied. Therefore, the Reference staff at 1 (800) 397–4209, issuance and shall be implemented NRC staff proposes to determine that the (301) 415–4737 or by e-mail to within 90 days from the date of proposed amendment involves no [email protected]. issuance. significant hazards consideration. Carolina Power & Light Company, Amendment No.: 280. Attorney for licensee: Peter M. Glass, Docket No. 50–261, H. B. Robinson Renewed Facility Operating License Assistant General Counsel, Xcel Energy Steam Electric Plant, Unit No. 2, No. NPF–6: Amendment revised the Services, Inc., 414 Nicollet Mall, Darlington County, South Carolina. Technical Specifications/license. Date of initial notice in Federal Minneapolis, MN 55401. Date of application for amendment: Register: May 6, 2008 (73 FR 25039). July 17, 2007, as supplemented by Notice of Issuance of Amendments to The supplement dated July 1, 2008, letters dated November 9, 2007, and Facility Operating Licenses provided additional information that April 1, 2008. clarified the application, did not expand During the period since publication of Brief description of amendment: The the last biweekly notice, the the scope of the application as originally amendment establishes more effective Commission has issued the following noticed, and did not change the staff’s and appropriate action, surveillance, amendments. The Commission has original proposed no significant hazards and administrative requirements related determined for each of these consideration determination as to ensuring the habitability of the amendments that the application published in the Federal Register. control room envelope in accordance complies with the standards and The Commission’s related evaluation with the NRC-approved Technical requirements of the Atomic Energy Act of the amendment is contained in a Specification Task Force (TSTF) of 1954, as amended (the Act), and the Safety Evaluation dated July 23, 2008. Standard Technical Specification Commission’s rules and regulations. No significant hazards consideration change traveler TSTF–448, Revision 3, The Commission has made appropriate comments received: No. findings as required by the Act and the ‘‘Control Room Habitability.’’ This Exelon Generation Company, LLC, Commission’s rules and regulations in technical specification improvement Docket Nos. 50–237 and 50–249, 10 CFR Chapter I, which are set forth in was initially made available in the Dresden Nuclear Power Station, Units 2 the license amendment. Federal Register by the NRC on January and 3, Grundy County, Illinois. Notice of Consideration of Issuance of 17, 2007 (72 FR 2022). Docket Nos. 50–254 and 50–265, Amendment to Facility Operating Date of issuance: July 23, 2008. Quad Cities Nuclear Power Station, License, Proposed No Significant Effective date: Effective as of the date Units 1 and 2, Rock Island County, Hazards Consideration Determination, of issuance and shall be implemented Illinois. and Opportunity for A Hearing in within 180 days. Date of application for amendments: connection with these actions was Amendment No: 219. August 1, 2007, as supplemented by published in the Federal Register as Renewed Facility Operating License letters dated February 26 and May 1, indicated. No. DPR–23: The amendment revises 2008. Unless otherwise indicated, the the Technical Specifications and Brief description of amendments: The Commission has determined that these Facility Operating License. amendments revise the technical specification allowable value (AV) for amendments satisfy the criteria for Date of initial notice in Federal the Reactor Protection System (RPS) categorical exclusion in accordance Register: August 28, 2007 (72 FR Instrumentation Function 10, ‘‘Turbine with 10 CFR 51.22. Therefore, pursuant 49570). The supplements dated Condenser Vacuum—Low,’’ specified in to 10 CFR 51.22(b), no environmental November 9, 2007, and April 1, 2008, TS Table 3.3.1.1–1, ‘‘Reactor Protection impact statement or environmental provided additional information that System Instrumentation,’’ for Dresden assessment need be prepared for these clarified the application, did not expand Nuclear Power Station, Units 2 and 3 amendments. If the Commission has the scope of the application as originally (DNPS), and Quad Cities Nuclear Power prepared an environmental assessment noticed, and did not change the staff’s Station, Units 1 and 2. The amendments under the special circumstances original proposed no significant hazards consideration determination as also revise the Channel Functional Test provision in 10 CFR 51.22(b) and has and Channel Calibration Surveillance made a determination based on that published in the Federal Register. The Commission’s related evaluation of the Test Interval (STI) for DNPS TS Table assessment, it is so indicated. 3.3.1.1–1, Function 10. As part of the For further details with respect to the amendment is contained in a safety DNPS STI revision, surveillance action see (1) the applications for evaluation dated July 23, 2008. requirement 3.3.1.10, ‘‘Channel amendment, (2) the amendment, and (3) No significant hazards consideration Calibration,’’ which is specific to the the Commission’s related letter, Safety comments received: No. Turbine Condenser Vacuum—Low Evaluation and/or Environmental Entergy Operations, Inc., Docket No. instrument function, is deleted since it 50–368, Arkansas Nuclear One, Unit Assessment as indicated. All of these is no longer applicable. items are available for public inspection No. 2, Pope County, Arkansas. Date of issuance: July 22, 2008. at the Commission’s Public Document Date of application for amendment: Effective date: As of the date of Room (PDR), located at One White Flint March 13, 2008, as supplemented by issuance and shall be implemented North, Public File Area 01F21, 11555 letter dated July 1, 2008. within 120 days. Rockville Pike (first floor), Rockville, Brief description of amendment: The Amendment Nos.: 227, 219, 239, 234. Maryland. Publicly available records amendment relocates the Technical Renewed Facility Operating License will be accessible from the Agencywide Specification (TS) 3.4.7, ‘‘Reactor Nos. DPR–19, DPR–25, DPR–29 and Documents Access and Management Coolant System Chemistry,’’ to the DPR–30. The amendments revise the Systems (ADAMS) Public Electronic Technical Requirements Manual (TRM). Technical Specifications and Licenses. Reading Room on the Internet at the The change is consistent with the Date of initial notice in Federal NRC Web site, http://www.nrc.gov/ NUREG 1432, ‘‘Standard Technical Register: December 4, 2007 (72 FR

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68214) The February 26 and May 1, section 5.5, ‘‘Programs and Manuals.’’ The Commission’s related evaluation 2008, supplements contained clarifying The amendment also adds a license of the amendment is contained in a information and did not change the NRC condition to support implementation of Safety Evaluation dated July 15, 2008. staff’s initial proposed finding of no the TS changes. No significant hazards consideration significant hazards consideration. The Date of issuance: July 15, 2008. comments received: No. Commission’s related evaluation of the Effective date: As of the date of Nuclear Management Company, LLC, amendments is contained in a Safety issuance to be implemented within 120 Docket Nos. 50–282 and 50–306, Prairie Evaluation dated July 22, 2008. days. Island Nuclear Generating Plant, Units No significant hazards consideration Amendment No.: 126 1 and 2, Goodhue County, Minnesota. comments received: No. Renewed Facility Operating License Date of application for amendments: FPL Energy, Point Beach, LLC, Docket No. DPR–69: Amendment revised the July 19, 2007, as supplemented by letter Nos. 50–266 and 50–301, Point Beach License and TSs. dated June 25, 2008. Nuclear Plant, Units 1 and 2, Town of Date of initial notice in Federal Brief description of amendments: The Two Creeks, Manitowoc County, Register: September 11, 2007 (72 FR amendments revise surveillance Wisconsin. 51864). The supplemental letter dated requirements for the duration of the Date of application for amendments: June 19, 2008, provided additional heater tests for technical specification March 31, 2008. information that clarified the (TS) 3.6.9, ‘‘Shield Building Ventilation Brief description of amendments: application, did not expand the scope of System (SBVS),’’ TS 3.7.12, ‘‘Auxiliary These amendments to the Technical the application as originally noticed, Building Special Ventilation System Specification delete the definition of E and did not change the Nuclear (ABSVS),’’ TS 3.7.13, ‘‘Spent Fuel Pool Bar and replace the current limits on Regulatory Commission staff’s initial Special Ventilation System (SFPSVS),’’ reactor coolant system (RCS) gross proposed no significant hazards and the frequency for performance of specific activity with a new limit on consideration determination. filter tests in TS 5.5.9, ‘‘Ventilation RCS noble gas activity. The noble gas The Commission’s related evaluation Filter Testing Program (VFTP). activity is now based on dose equivalent of the amendment is contained in a Date of issuance: July 18, 2008. Xenon-133 definition and replaces the E Safety Evaluation dated July 15, 2008. Effective date: As of the date of Bar definition. The changes are No significant hazards consideration issuance and shall be implemented consistent with Nuclear Regulatory comments received: No. within 90 days. Commission-approved Industry/ Nine Mile Point Nuclear Station, LLC, Amendment Nos.: 186, 176. Technical Specification Task Force Docket No. 50–220, Nine Mile Point Facility Operating License Nos. DPR– (TSTF) Standard Technical Nuclear Station, Unit No. 1 (NMP1), 42 and DPR–60: Amendments revised Specification Change Traveler, TSTF– Oswego County, New York. the Technical Specifications. 490, Revision 0. Date of application for amendment: Date of initial notice in Federal Date of issuance: July 14, 2008. July 12, 2007, as supplemented on June Register: October 9, 2007 (72 FR 57355). Effective date: As of the date of 19, 2008. The Commission’s related evaluation of issuance and shall be implemented Brief description of amendment: The the amendments is contained in a Safety within 30 days. amendment establishes more effective Evaluation dated July 18, 2008. The Amendment Nos.: 233, 238. and appropriate action, surveillance, information contained in the June 25, Renewed Facility Operating License and administrative requirements related 2008, supplement is clarifying in nature Nos. DPR–24 and DPR–27: Amendments to ensuring the habitability of the and does not change either the scope of revised the Technical Specifications/ control room envelope in accordance the amendment request or the no License. with the NRC-approved Technical significant hazards consideration Date of initial notice in Federal Specification (TS) Task Force Traveler determination. Register: May 6, 2008 (73 FR 25041). (TSTF)–448, Revision 3, and changes No significant hazards consideration The Commission’s related evaluation of the NMP1 TSs related to control room comments received: No. the amendments is contained in a Safety envelope habitability in TS Section STP Nuclear Operating Company, Evaluation dated July 14, 2008. 3.4.5, ‘‘Control Room Air Treatment Docket Nos. 50–498 and 50–499, South No significant hazards consideration System,’’ and TS Section 6.5, ‘‘Programs Texas Project, Units 1 and 2, Matagorda comments received: No. and Manuals.’’ The amendment also County, Texas. Nine Mile Point Nuclear Station, LLC, adds a license condition to support Date of amendment request: June 26, Docket No. 50–410, Nine Mile Point implementation of the TS changes. 2007, as supplemented by letters dated Nuclear Station, Unit No. 2 (NMP–2), Date of issuance: July 15, 2008. April 29 and May 27, 2008. Oswego County, New York. Effective date: As of the date of Brief description of amendments: The Date of application for amendment: issuance to be implemented within 120 amendments added a new license July 12, 2007, as supplemented on June days. condition (12) for Unit 1 and new 19, 2008. Amendment No.: 195. license condition (10) for Unit 2 on the Brief description of amendment: The Renewed Facility Operating License control room envelope (CRE) amendment establishes more effective No. DPR–63: Amendment revised the habitability program. In addition, the and appropriate action, surveillance, License and TSs. amendments revised the Technical and administrative requirements related Date of initial notice in Federal Specification (TS) requirements related to ensuring the habitability of the Register: September 11, 2007 (72 FR to the habitability of the CRE in TS control room envelope in accordance 51863). The supplemental letter dated 3.7.7, ‘‘Control Room Makeup and with the NRC-approved Technical June 19, 2008, provided additional Cleanup Filtration System (CRMCFS),’’ Specification (TS) Task Force Traveler information that clarified the and added the new Control Room (TSTF)–448, Revision 3, and changes application, did not expand the scope of Envelope Habitability Program to TS the NMP2 TSs related to control room the application as originally noticed, Section 6.8, ‘‘Administrative Controls— envelope habitability in TS section and did not change the NRC staff’s Procedures, Programs, and Manuals.’’ 3.7.2, ‘‘Control Room Envelope initial proposed no significant hazards These changes are consistent with the Filtration (CREF) System,’’ and TS consideration determination. NRC-approved TS Task Force (TSTF)

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Standard Technical Specification For exigent circumstances, the under the special circumstances change traveler TSTF–448, Revision 3, Commission has either issued a Federal provision in 10 CFR 51.12(b) and has ‘‘Control Room Envelope Habitability.’’ Register notice providing opportunity made a determination based on that The availability of the TS improvement for public comment or has used local assessment, it is so indicated. was published in the Federal Register media to provide notice to the public in For further details with respect to the on January 17, 2007 (72 FR 2022), as the area surrounding a licensee’s facility action see (1) the application for part of the Consolidated Line Item of the licensee’s application and of the amendment, (2) the amendment to Improvement Process. Commission’s proposed determination Facility Operating License, and (3) the Date of issuance: July 29, 2008. of no significant hazards consideration. Commission’s related letter, Safety Effective date: As of the date of The Commission has provided a Evaluation and/or Environmental issuance and shall be implemented reasonable opportunity for the public to Assessment, as indicated. All of these within 60 days of issuance. comment, using its best efforts to make items are available for public inspection Amendment Nos.: Unit 1—185; Unit available to the public means of at the Commission’s Public Document 2—172. communication for the public to Room (PDR), located at One White Flint Facility Operating License Nos. NPF– respond quickly, and in the case of North, Public File Area 01F21, 11555 76 and NPF–80: The amendments telephone comments, the comments Rockville Pike (first floor), Rockville, revised the Facility Operating Licenses have been recorded or transcribed as Maryland. Publicly available records and Technical Specifications. appropriate and the licensee has been will be accessible from the Agencywide Documents Access and Management Date of initial notice in Federal informed of the public comments. In circumstances where failure to act System’s (ADAMS) Public Electronic Register: August 14, 2007 (72 FR in a timely way would have resulted, for Reading Room on the Internet at the 45460). The supplemental letters dated example, in derating or shutdown of a NRC Web site, http://www.nrc.gov/ April 29 and May 27, 2008, provided nuclear power plant or in prevention of reading-rm/adams.html. If you do not additional information that clarified the either resumption of operation or of have access to ADAMS or if there are application, did not expand the scope of increase in power output up to the problems in accessing the documents the application as originally noticed, plant’s licensed power level, the located in ADAMS, contact the PDR and did not change the staff’s original Commission may not have had an Reference staff at 1 (800) 397–4209, proposed no significant hazards opportunity to provide for public (301) 415–4737 or by e-mail to consideration determination as comment on its no significant hazards [email protected]. published in the Federal Register. The consideration determination. In such The Commission is also offering an Commission’s related evaluation of the case, the license amendment has been opportunity for a hearing with respect to amendments is contained in a Safety issued without opportunity for the issuance of the amendment. Within Evaluation dated July 29, 2008. comment. If there has been some time 60 days after the date of publication of No significant hazards consideration for public comment but less than 30 this notice, person(s) may file a request comments received: No. days, the Commission may provide an for a hearing with respect to issuance of Notice of Issuance of Amendments to opportunity for public comment. If the amendment to the subject facility Facility Operating Licenses and Final comments have been requested, it is so operating license and any person whose Determination of No Significant stated. In either event, the State has interest may be affected by this Hazards Consideration and been consulted by telephone whenever proceeding and who wishes to Opportunity for a Hearing (Exigent possible. participate as a party in the proceeding Public Announcement or Emergency Under its regulations, the Commission must file a written request via electronic Circumstances) may issue and make an amendment submission through the NRC E–Filing immediately effective, notwithstanding system for a hearing and a petition for During the period since publication of the pendency before it of a request for leave to intervene. Requests for a the last biweekly notice, the a hearing from any person, in advance hearing and a petition for leave to Commission has issued the following of the holding and completion of any intervene shall be filed in accordance amendments. The Commission has required hearing, where it has with the Commission’s ‘‘Rules of determined for each of these determined that no significant hazards Practice for Domestic Licensing amendments that the application for the consideration is involved. Proceedings’’ in 10 CFR Part 2. amendment complies with the The Commission has applied the Interested person(s) should consult a standards and requirements of the standards of 10 CFR 50.92 and has made current copy of 10 CFR 2.309, which is Atomic Energy Act of 1954, as amended a final determination that the available at the Commission’s PDR, (the Act), and the Commission’s rules amendment involves no significant located at One White Flint North, Public and regulations. The Commission has hazards consideration. The basis for this File Area 01F21, 11555 Rockville Pike made appropriate findings as required determination is contained in the (first floor), Rockville, Maryland, and by the Act and the Commission’s rules documents related to this action. electronically on the Internet at the NRC and regulations in 10 CFR Chapter I, Accordingly, the amendments have Web site, http://www.nrc.gov/reading- which are set forth in the license been issued and made effective as rm/doc-collections/cfr/. If there are amendment. indicated. problems in accessing the document, Because of exigent or emergency Unless otherwise indicated, the contact the PDR Reference staff at 1 circumstances associated with the date Commission has determined that these (800) 397–4209, (301) 415–4737, or by e- the amendment was needed, there was amendments satisfy the criteria for mail to [email protected]. If a not time for the Commission to publish, categorical exclusion in accordance request for a hearing or petition for for public comment before issuance, its with 10 CFR 51.22. Therefore, pursuant leave to intervene is filed by the above usual Notice of Consideration of to 10 CFR 51.22(b), no environmental date, the Commission or a presiding Issuance of Amendment, Proposed No impact statement or environmental officer designated by the Commission or Significant Hazards Consideration assessment need be prepared for these by the Chief Administrative Judge of the Determination, and Opportunity for a amendments. If the Commission has Atomic Safety and Licensing Board Hearing. prepared an environmental assessment Panel, will rule on the request and/or

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petition; and the Secretary or the Chief 1. Technical—primarily concerns/ participating; and/or (2) creation of an Administrative Judge of the Atomic issues relating to technical and/or electronic docket for the proceeding Safety and Licensing Board will issue a health and safety matters discussed or (even in instances in which the notice of a hearing or an appropriate referenced in the applications. petitioner/requestor (or its counsel or order. 2. Environmental—primarily representative) already holds an NRC- As required by 10 CFR 2.309, a concerns/issues relating to matters issued digital ID certificate). Each petition for leave to intervene shall set discussed or referenced in the petitioner/ requestor will need to forth with particularity the interest of environmental analysis for the download the Workplace Forms the petitioner in the proceeding, and applications. ViewerTM to access the Electronic how that interest may be affected by the 3. Miscellaneous—does not fall into Information Exchange (EIE), a results of the proceeding. The petition one of the categories outlined above. component of the E–Filing system. The should specifically explain the reasons As specified in 10 CFR 2.309, if two Workplace Forms ViewerTM is free and why intervention should be permitted or more petitioners/requestors seek to is available at http://www.nrc.gov/site- with particular reference to the co-sponsor a contention, the petitioners/ help/e-submittals/install-viewer.html. following general requirements: (1) The requestors shall jointly designate a Information about applying for a digital name, address, and telephone number of representative who shall have the ID certificate is available on NRC’s the requestor or petitioner; (2) the authority to act for the petitioners/ public Web site at http://www.nrc.gov/ nature of the requestor’s/petitioner’s requestors with respect to that site-help/e-submittals/apply- right under the Act to be made a party contention. If a petitioner/requestor certificates.html. to the proceeding; (3) the nature and seeks to adopt the contention of another Once a petitioner/requestor has extent of the requestor’s/petitioner’s sponsoring petitioner/requestor, the obtained a digital ID certificate, had a property, financial, or other interest in petitioner/requestor who seeks to adopt docket created, and downloaded the EIE the proceeding; and (4) the possible the contention must either agree that the viewer, it can then submit a request for effect of any decision or order which sponsoring petitioner/requestor shall act hearing or petition for leave to may be entered in the proceeding on the as the representative with respect to that intervene. Submissions should be in requestor’s/petitioner’s interest. The contention, or jointly designate with the Portable Document Format (PDF) in petition must also identify the specific sponsoring petitioner/requestor a accordance with NRC guidance contentions which the petitioner/ representative who shall have the available on the NRC public Web site at requestor seeks to have litigated at the authority to act for the petitioners/ http://www.nrc.gov/site-help/e- proceeding. requestors with respect to that submittals.html. A filing is considered Each contention must consist of a contention. complete at the time the filer submits its specific statement of the issue of law or Those permitted to intervene become documents through EIE. To be timely, fact to be raised or controverted. In parties to the proceeding, subject to any an electronic filing must be submitted to addition, the petitioner/requestor shall limitations in the order granting leave to the EIE system no later than 11:59 p.m. provide a brief explanation of the bases intervene, and have the opportunity to Eastern Time on the due date. Upon for the contention and a concise participate fully in the conduct of the receipt of a transmission, the E–Filing statement of the alleged facts or expert hearing. Since the Commission has system time-stamps the document and opinion which support the contention made a final determination that the sends the submitter an e-mail notice and on which the petitioner intends to amendment involves no significant confirming receipt of the document. The rely in proving the contention at the hazards consideration, if a hearing is EIE system also distributes an e-mail hearing. The petitioner must also requested, it will not stay the notice that provides access to the provide references to those specific effectiveness of the amendment. Any document to the NRC Office of the sources and documents of which the hearing held would take place while the General Counsel and any others who petitioner is aware and on which the amendment is in effect. have advised the Office of the Secretary petitioner intends to rely to establish A request for hearing or a petition for that they wish to participate in the those facts or expert opinion. The leave to intervene must be filed in proceeding, so that the filer need not petition must include sufficient accordance with the NRC E–Filing rule, serve the documents on those information to show that a genuine which the NRC promulgated in August participants separately. Therefore, dispute exists with the applicant on a 28, 2007, (72 FR 49139). The E–Filing applicants and other participants (or material issue of law or fact.1 process requires participants to submit their counsel or representative) must Contentions shall be limited to matters and serve documents over the Internet apply for and receive a digital ID within the scope of the amendment or in some cases to mail copies on certificate before a hearing request/ under consideration. The contention electronic storage media. Participants petition to intervene is filed so that they must be one which, if proven, would may not submit paper copies of their can obtain access to the document via entitle the petitioner to relief. A filings unless they seek a waiver in the E–Filing system. petitioner/requestor who fails to satisfy accordance with the procedures A person filing electronically may these requirements with respect to at described below. seek assistance through the ‘‘Contact least one contention will not be To comply with the procedural Us’’ link located on the NRC Web site permitted to participate as a party. requirements of E–Filing, at least five (5) at http://www.nrc.gov/site-help/e- Each contention shall be given a days prior to the filing deadline, the submittals.html or by calling the NRC separate numeric or alpha designation petitioner/ requestor must contact the technical help line, which is available within one of the following groups: Office of the Secretary by e-mail at between 8:30 a.m. and 4:15 p.m., [email protected], or by Eastern Time, Monday through Friday. 1 To the extent that the applications contain calling (301) 415–1677, to request (1) a The help line number is (800) 397–4209 attachments and supporting documents that are not digital ID certificate, which allows the or locally, (301) 415–4737. publicly available because they are asserted to participant (or its counsel or Participants who believe that they contain safeguards or proprietary information, petitioners desiring access to this information representative) to digitally sign have a good cause for not submitting should contact the applicant or applicant’s counsel documents and access the E–Submittal documents electronically must file a and discuss the need for a protective order. server for any proceeding in which it is motion, in accordance with 10 CFR

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2.302(g), with their initial paper filing inoperable ERCW pumps. Additionally, Conference of Radiation Control requesting authorization to continue to this amendment adds a temporary Program Directors (CRCPD) (Public submit documents in paper format. CONDITION and a Note to Technical Meeting) (Contact: Andrea Jones, 301– Such filings must be submitted by: (1) Specification 3.7.8, ‘‘Essential Raw 415–2309). First class mail addressed to the Office Cooling Water,’’ reflecting the This meeting will be Webcast live at of the Secretary of the Commission, U.S. restoration of functionality of Train A the Web address—http://www.nrc.gov. Nuclear Regulatory Commission, ERCW by the temporary alteration. Washington, DC 20555–0001, Attention: Date of issuance: July 24, 2008. Week of August 18, 2008—Tentative Rulemaking and Adjudications Staff; or Effective date: July 24, 2008, and shall There are no meetings scheduled for (2) courier, express mail, or expedited be implemented as of the date of the week of August 18, 2008. delivery service to the Office of the issuance. Week of August 25, 2008—Tentative Secretary, Sixteenth Floor, One White Amendment No.: 69. Flint North, 11555 Rockville, Pike, Facility Operating License No. NPF– There are no meetings scheduled for Rockville, Maryland, 2085 Attention 2,: 90: Amendment revises the Technical the week of August 25, 2008. Specifications and License. Rulemaking and Adjudications Staff. Week of September 1, 2008—Tentative Participants filing a document in this Public comments requested as to manner are responsible for serving the proposed no significant hazards There are no meetings scheduled for document on all other participants. consideration (NSHC): the week of September 1, 2008. No. The Commission’s related Filing is considered complete by first- Week of September 8, 2008—Tentative class mail as of the time of deposit in evaluation of the amendment, finding of the mail, or by courier, express mail, or emergency circumstances, state There are no meetings scheduled for expedited delivery service upon consultation, and final NSHC the week of September 8, 2008. determination are contained in a safety depositing the document with the Week of September 15, 2008 provider of the service. evaluation dated July 24, 2008. Non-timely requests and/or petitions Attorney for licensee: General There are no meetings scheduled for and contentions will not be entertained Counsel, Tennessee Valley Authority, the week of September 15, 2008. absent a determination by the 6A West Tower, ET 11H, 400 West * The schedule for Commission Commission, the presiding officer, or Summit Hill Drive, Knoxville, TN meetings is subject to change on short the Atomic Safety and Licensing Board 37902. notice. To verify the status of meetings, that the petition and/or request should NRC Branch Chief: L. Raghavan. call (recording)—(301) 415–1292. be granted and/or the contentions Dated at Rockville, Maryland, this 31st day Contact person for more information: should be admitted, based on a of July 2008. Michelle Schroll, (301) 415–1662. balancing of the factors specified in 10 For the Nuclear Regulatory Commission. The NRC Commission Meeting CFR 2.309(c)(1)(i)–(viii). To be timely, Joseph G. Giitter, Schedule can be found on the Internet filings must be submitted no later than at: http://www.nrc.gov/about-nrc/policy- Director, Division of Operating Reactor 11:59 p.m. Eastern Time on the due Licensing, Office of Nuclear Reactor making/schedule.html. date. Regulation. The NRC provides reasonable Documents submitted in adjudicatory [FR Doc. E8–18185 Filed 8–11–08; 8:45 am] accommodation to individuals with proceedings will appear in NRC’s disabilities where appropriate. If you electronic hearing docket which is BILLING CODE 7590–01–P need a reasonable accommodation to available to the public at http:// participate in these public meetings, or _ ehd.nrc.gov/EHD Proceeding/home.asp, NUCLEAR REGULATORY need this meeting notice or the unless excluded pursuant to an order of COMMISSION transcript or other information from the the Commission, an Atomic Safety and public meetings in another format (e.g. Licensing Board, or a Presiding Officer. Sunshine Federal Register Notice braille, large print), please notify the Participants are requested not to include NRC’s Disability Program Coordinator, personal privacy information, such as AGENCY HOLDING THE MEETINGS: Nuclear Rohn Brown, at 301–492–2279, TDD: social security numbers, home Regulatory Commission. 301–415–2100, or by e-mail at addresses, or home phone numbers in DATE: Weeks of August 11, 18, 25, [email protected]. Determinations on their filings. With respect to copyrighted September 1, 8, 15, 2008. requests for reasonable accommodation works, except for limited excerpts that PLACE: Commissioners’ Conference will be made on a case-by-case basis. serve the purpose of the adjudicatory Room, 11555 Rockville Pike, Rockville, This notice is distributed by mail to filings and would constitute a Fair Use Maryland. several hundred subscribers; if you no application, participants are requested STATUS: Public and Closed. longer wish to receive it, or would like not to include copyrighted materials in to be added to the distribution, please their submission. Week of August 11, 2008 contact the Office of the Secretary, Tennessee Valley Authority, Docket Tuesday, August 12, 2008 Washington, DC 20555 (301–415–1969). No. 50 390, Watts Bar Nuclear Plant, In addition, distribution of this meeting Unit 1, Rhea County, Tennessee. 1:30 p.m. Meeting with FEMA and notice over the Internet system is Date of amendment request: July 24, State and Local Representatives on available. If you are interested in 2008. Offsite Emergency Preparedness Issues receiving this Commission meeting Description of amendment request: (Public Meeting) (Contact: Lisa Gibney, schedule electronically, please send an This amendment allows the 301–415–8376). electronic message to [email protected]. implementation of a temporary This meeting will be Webcast live at alteration that will be used to restore the Web address—http://www.nrc.gov. Dated: August 7, 2008. Train A of the Essential Raw Cooling R. Michelle Schroll, Water (ERCW) to a functional condition Thursday, August 14, 2008 Office of the Secretary. and to provide additional time to restore 1:30 p.m. Meeting with Organization [FR Doc. E8–18689 Filed 8–8–08; 12:00 pm] the operability of at least one of the of Agreement States (OAS) and BILLING CODE 7590–01–P

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OFFICE OF THE UNITED STATES SECURITIES AND EXCHANGE LLC (‘‘BSX’’), which would operate, TRADE REPRESENTATIVE COMMISSION upon Commission approval of certain proposed rule changes, BSE’s equities [Release No. 34–58324; File Nos. SR–BSE– Fiscal Year 2008 Tariff-Rate Quota 2008–02; SR–BSE–2008–23; SR–BSE–2008– trading facility, and make related Allocations of Raw Cane Sugar, 25; SR–BSECC–2008–01] amendments to the Operating Refined and Specialty Sugar, and Agreement of BSX; (5) adopt two rules; Sugar-Containing Products; Correction Self-Regulatory Organizations; Boston and (6) obtain Commission approval for Stock Exchange, Incorporated; Boston the affiliation between BSE and certain AGENCY: USTR. Stock Exchange Clearing Corporation; broker-dealer subsidiaries of NASDAQ Order Approving Proposed Rule OMX (collectively, the ‘‘BSE ACTION: Notice; correction. Change, as Modified by Amendment Governance Proposal’’). The BSE No. 1, Amending the Certificate of Governance Proposal was published for SUMMARY: The Office of the United Incorporation of Boston Stock comment in the Federal Register on States Trade Representative published a Exchange, Incorporated; Notice of May 8, 2008.3 The Commission received document in the Federal Register of Filing of Amendment No. 1 to a no comments on the BSE Governance August 24, 2007 concerning Fiscal Year Proposed Rule Change Relating to the Proposal. On July 28, 2008, BSE filed 2008 Tariff-Rate Quota allocations of Acquisition of the Boston Stock Amendment No. 1 to the BSE raw cane sugar, refined and specialty Exchange, Incorporated by The Governance Proposal.4 This order sugar, and sugar-containing products. NASDAQ OMX Group, Inc., and Order provides notice of and requests The document contained incorrect data. Granting Accelerated Approval of the comment on Amendment No. 1 to the Proposed Rule Change, as Modified by BSE Governance Proposal and approves Correction to Previous Notice Amendment No. 1; Notice of Filing of the BSE Governance Proposal, as In the Federal Register of August 24, Amendment No. 1 to a Proposed Rule modified by Amendment No. 1, on an 2007, Volume 72, Page 48695, the Office Change Relating to a Proposal To accelerated basis. of the United States Trade Transfer Boston Stock Exchange, On April 23, 2008, BSE filed with the Incorporated’s Ownership Interest in Representative published a notice Commission a proposed rule change Boston Options Exchange Group, LLC (‘‘BOX Transfer Proposal’’) to transfer its entitled ‘‘Fiscal Year 2008 Tariff-Rate and Order Granting Accelerated ownership interest in the Boston Quota Allocations of Raw Cane Sugar, Approval of the Proposed Rule Options Exchange Group, LLC (‘‘BOX’’), Refined and Specialty Sugar, and Sugar- Change, as Modified by Amendment the operator of BSE’s Boston Options Containing Products.’’ A correction is No. 1; Notice of Filing of Amendment Exchange facility (‘‘BOX Market’’), to being made to the information in the No. 1 to a Proposed Rule Change by MX U.S. 2, Inc. (‘‘MX US’’), a wholly- table in the second column, which the Boston Stock Exchange Clearing owned U.S. subsidiary of the Montre´al contains the country-specific allocations Corporation Relating to Amendment of Exchange Inc. (‘‘MX’’), and to amend the for raw sugar. The figure for the Its Articles of Organization and By- BOX LLC Agreement. The BOX Transfer allocation for the country of Nicaragua Laws in Connection With the Planned Proposal was published for comment in is incorrect. The correct figure is 22,114 Acquisition by The NASDAQ OMX the Federal Register on May 8, 2008.5 Metric Tons Raw Equivalent (MTRV) Group, Inc., and Order Granting The Commission received no comments rather than 22,538 MTRV. All other Accelerated Approval of the Proposed on the BOX Transfer Proposal. On July information remains unchanged and Rule Change, as Modified by 28, 2008, BSE filed Amendment No. 1 will not be repeated in this correction. Amendment No. 1 to the BOX Transfer Proposal.6 This order provides notice of and requests FOR FURTHER INFORMATION CONTACT: August 7, 2008. comment on Amendment No. 1 to the Leslie O’Connor, Office of Agricultural I. Introduction BOX Transfer Proposal and approves Affairs, telephone: 202–395–6127 or the BOX Transfer Proposal, as modified facsimile: 202–395–4579. On April 21, 2008, the Boston Stock Exchange, Inc. (‘‘BSE’’) filed with the by Amendment No. 1, on an accelerated Susan C. Schwab, Securities and Exchange Commission basis. United States Trade Representative. (‘‘Commission’’ or ‘‘SEC’’) a proposed On April 23, 2008, BSE filed with the Commission a proposed rule change [FR Doc. E8–18520 Filed 8–11–08; 8:45 am] rule change, pursuant to Section (‘‘BSE Interim Certificate Proposal’’) to BILLING CODE 3190–W8–P 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’) 1 and Rule 19b–4 amend the BSE Certificate to permit BSE thereunder 2 to: (1) Amend and restate to make distributions to BSE the BSE Certificate in its entirety to membership owners in connection with reflect the planned acquisition of BSE the transfer of its ownership interest in by The NASDAQ OMX Group, Inc. 3 See Securities Exchange Act Release No. 57757 (‘‘NASDAQ OMX’’), the parent (May 1, 2008), 73 FR 26159 (SR–BSE–2008–23) corporation of The NASDAQ Stock (‘‘BSE Governance Proposal Notice’’). Market LLC (‘‘Nasdaq’’); (2) replace the 4 In Amendment No. 1 to the BSE Governance BSE Constitution in its entirety with Proposal, BSE filed NASDAQ OMX’s Certificate and proposed new BSE By-Laws; (3) adopt a By-Laws, as proposed to be amended in connection with the acquisition of BSE by NASDAQ OMX, and written operating agreement for its proposed to make a non-substantive correction in subsidiary, Boston Options Exchange the purpose section of the original filing. See infra Regulation, LLC (‘‘BOXR’’), and amend note 104 and accompanying text. the BOXR By-Laws; (4) obtain approval 5 See Securities Exchange Act Release No. 57762 (May 1, 2008), 73 FR 26170 (SR–BSE–2008–25) for a change of control of BSX Group, (‘‘BOX Transfer Proposal Notice’’). 6 In Amendment No. 1 to the BOX Transfer 1 15 U.S.C. 78s(b)(1). Proposal, BSE proposes to clarify Section 8.4(g) of 2 17 CFR 240.19b–4. the BOX LLC Agreement.

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BOX. The BSE Interim Certificate cooperation and coordination with from trading privileges on BSE. BSE Proposal was published for comment in persons engaged in regulating, clearing, members would receive cash as the Federal Register on May 7, 2008.7 settling, and processing information consideration for their ownership The Commission received no comment with respect to, and facilitating interests in BSE and would not retain letters regarding the BSE Interim transactions in securities; to remove any ownership interest in BSE or its Certificate Proposal. On July 28, 2008, impediments to and perfect the affiliates. NASDAQ OMX plans that BSE BSE filed Amendment No. 1 to the BSE mechanism of a free and open market would operate as a separate self- Interim Certificate Proposal.8 This order and a national market system; and, in regulatory organization (‘‘SRO’’) with approves the BSE Interim Certificate general, to protect investors and the rules, memberships, and listings that are Proposal as modified by Amendment public interest. The Commission also separate and distinct from those of No. 1. finds that these proposed rule changes Nasdaq.18 On April 24, 2008, the Boston Stock are consistent with Section 6(b)(1) of the BSE has four affiliates: BSX, BOX, Exchange Clearing Corporation Act,13 which requires, among other BOXR, and BSECC. BSE owns 53.21 (‘‘BSECC’’) filed with the Commission a things, that a national securities percent of BSX, which operated the proposed rule change (‘‘BSECC exchange be so organized and have the Boston Equities Exchange (‘‘BeX’’) until Governance Proposal’’). The BSECC capacity to carry out the purposes of the BeX ceased operations in September Governance Proposal was published for Act, and to comply and enforce 2007.19 The remaining 46.79 percent of comment in the Federal Register on compliance by its members and persons BSX is owned by Citigroup Financial May 13, 2008.9 The Commission associated with its members, with the Strategies Inc., Credit Suisse First received no comments on the BSECC provisions of the Act, the rules and Boston Next Fund Inc., LB 1 Group, Governance Proposal. On July 28, 2008, regulations thereunder, and the rules of Inc., Fidelity Global Brokerage Group, BSECC filed Amendment No. 1 to the the exchange; Section 6(b)(3) of the Inc., and Merrill Lynch L.P. Holdings BSECC Governance Proposal.10 This Act,14 which requires, in part, that the Inc. Following the BSE Acquisition, order provides notice of and requests rules of an exchange assure a fair NASDAQ OMX indirectly would own, comment on Amendment No. 1 to the representation of its members in the through its ownership of BSE, the 53.21 BSECC Governance Proposal and selection of its directors and percent of BSX that BSE would continue approves the BSECC Governance administration of its affairs; and Section to own. In addition, NASDAQ OMX Proposal, as modified by Amendment 6(b)(7) of the Act,15 which requires, in would acquire the 46.79 percent interest No. 1, on an accelerated basis. part, that the rules of an exchange in BSX that is not presently owned by BSE. Consequently, BSX would become II. Discussion and Commission provide a fair procedure for disciplining members. a wholly-owned subsidiary of NASDAQ Findings 20 The Commission also finds that the OMX. After careful review, the Commission BSECC Governance Proposal is NASDAQ OMX would not acquire finds that the BSE Interim Certificate consistent with Section 17A(b)(3)(C) of BSE’s interest in BOX, the transfer of Proposal, the BSE Governance Proposal, the Act,16 which requires, in part, that which to a third party is a condition to and the BOX Ownership Transfer 21 the rules of a registered clearing agency the closing of the BSE Acquisition. Proposal are consistent with the assure the fair representation of its BSE proposes to transfer its 21.87 requirements of the Act and the rules percent ownership interest in BOX to shareholders (or members) and and regulations thereunder applicable to MX US, a wholly-owned subsidiary of participants in the selection of its board a national securities exchange.11 MX.22 BSE intends to distribute the of directors and administration of its Specifically, the Commission finds that proceeds from the BOX transfer to its these proposed rule changes are affairs. The discussion below does not review member owners by redeeming a portion consistent with Section 6(b)(5) of the of each BSE member ownership for a every detail of each of the proposed rule Act,12 which requires, among other pro rata share of the net proceeds.23 changes, but focuses on the most things, that the rules of a national Although BSE no longer would hold an significant rules and policy issues securities exchange be designed to ownership interest in BOX, as discussed considered by the Commission in prevent fraudulent and manipulative in greater detail below,24 the BOX reviewing the proposals. acts and practices; to promote just and Market would remain a facility of BSE NASDAQ OMX, the parent equitable principles of trade; to foster and, therefore, BSE would continue to corporation of Nasdaq, and BSE have have self-regulatory obligations with entered into an agreement pursuant to 7 See Securities Exchange Act Release No. 57760 respect to the BOX Market.25 (May 1, 2008), 73 FR 25809 (SR–BSE–2008–02) which NASDAQ OMX would acquire all Finally, BOXR and BSECC are wholly- (‘‘BSE Interim Certificate Proposal Notice’’). of the outstanding membership interests owned subsidiaries of BSE and, 8 In Amendment No. 1 to the BSE Interim in BSE (‘‘BSE Acquisition’’).17 Certificate Proposal, BSE proposes to correct Following the BSE Acquisition, BSE typographical errors in the proposed amendments 18 See Securities Exchange Act Release No. 57761 to the current BSE Certificate. Because Amendment would be a wholly-owned subsidiary of (May 1, 2008), 73 FR 26182, at 26183 (SR– No. 1 is technical in nature, the Commission is not NASDAQ OMX. The BSE Acquisition NASDAQ–2008–035) (‘‘NASDAQ OMX By-Laws publishing it for comment. would have the effect of: (1) converting Proposal Notice’’). 19 9 See Securities Exchange Act Release No. 57782 BSE, a registered national securities See infra note 222. (May 6, 2008), 73 FR 27583 (SR–BSECC–2008–01) 20 See BSE Governance Proposal Notice, supra (‘‘BSECC Governance Proposal Notice’’). exchange, from a Delaware, non-stock note 3, 73 FR at 26159. See also infra notes 222– 10 In Amendment No. 1 to the BSECC Governance corporation into a Delaware stock 244 and accompanying text. Proposal, BSECC filed NASDAQ OMX’s Certificate corporation; and (2) demutualizing BSE 21 See BSE Interim Certificate Proposal Notice, and NASDAQ OMX’s By-Laws, as proposed to be by separating equity ownership in BSE supra note 7, 73 FR at 25810. amended in connection with the acquisition of BSE 22 See BOX Transfer Proposal Notice, supra note by NASDAQ OMX. See infra note 258 and 5, 73 FR at 26170. 13 accompanying text. 15 U.S.C. 78f(b)(1). 23 See BSE Interim Certificate Proposal Notice, 11 In approving these proposed rule changes, the 14 15 U.S.C. 78f(b)(3). supra note 7, 73 FR at 25810. Commission has considered the proposed rule’s 15 15 U.S.C. 78f(b)(7). 24 See infra notes 124–136 and accompanying impact on efficiency, competition, and capital 16 15 U.S.C. 78q–1(b)(3)(C). text. formation. 15 U.S.C. 78c(f). 17 See BSE Governance Proposal Notice, supra 25 15 U.S.C. 78c(a)(2). See also BOX Transfer 12 15 U.S.C. 78f(b)(5). note 3, 73 FR 26159. Proposal Notice, supra note 5, 73 FR at 26171.

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therefore, following the BSE Acquisition by a holding company of one or more appropriate in furtherance of the would become wholly-owned, indirect SROs has not presented any concerns purposes of the Act. subsidiaries of NASDAQ OMX.26 that have not been addressed, for With regard to NASDAQ OMX’s Following the BSE Acquisition, example, by Commission-approved ownership of two registered clearing Nasdaq OMX would own five SROs: measures at the holding company level agencies following the BSE Acquisition, Nasdaq, BSE, BSECC, Philadelphia that are designed to protect the the Commission does not believe the Stock Exchange, Inc. (‘‘Phlx’’) and Stock independence of each SRO.31 acquisition of BSECC and SCCP by Clearing Corporation of Philadelphia NASDAQ OMX would reduce (‘‘SCCP’’).27 As discussed below, the The Commission believes that the competition with respect to the Commission believes that the ownership current market for cash equity trading clearance and settlement of securities of BSE and BSECC by the same public venues is highly competitive. Existing transactions. The Commission notes that holding company that owns Nasdaq, exchanges face significant competition NSCC currently provides clearance and Phlx, and SCCP would not impose any from other exchanges and from non- settlement services and a central burden on competition not necessary or exchange entities such as alternative counterparty guarantee for virtually all appropriate in furtherance of the Act’s trading systems that trade the same or trades on the New York Stock Exchange purposes.28 The Commission previously similar financial instruments.32 New LLC, Nasdaq, the American Stock has approved proposals in which a entrants to the market do not face Exchange LLC and for all regional holding company owns multiple significant barriers to entry. In this exchanges, electronic communications SROs.29 However, the BSE Acquisition regard, the Chicago Board Options networks and alternative trading is the first instance in which the Exchange, Incorporated and the systems in the U.S.35 In September Commission is approving the ownership International Securities Exchange, LLC a 2007, BSECC ceased processing trades by one holding company of three few years ago commenced trading of and currently provides only limited 30 exchanges and two clearing agencies. cash equity securities.33 In addition, account maintenance services to its The Commission’s experience to date other entities have recently applied for participants. SCCP continues to forward with the issues raised by the ownership trades to NSCC for clearance and exchange registration, which provides 36 evidence that they have determined settlement. The Commission will 26 See BSECC Governance Proposal Notice, supra continue to evaluate the competitive there are benefits in starting a new note 9, 73 FR at 27583. environment should the operations of 27 exchange to compete in the See Securities Exchange Act Release No. 57703 either BSECC or SCCP expand, taking (April 23, 2008), 73 FR 23293 (April 29, 2008) (SR– 34 marketplace. In addition, since BeX into account the maintenance of fair Phlx–2008–31) (notice of proposed rule change ceased operating in September 2007, related to NASDAQ OMX’s acquisition of Phlx competition among brokers and dealers, (‘‘Phlx Acquisition’’)). See also Securities Exchange BSE has zero market share in cash clearing agencies, and transfer agents.37 Act Release No. 57818 (May 14, 2008), 73 FR 29171 equity trading, and prior to September For these reasons, the Commission finds (May 20, 2008) (SR–SCCP–2008–01) (notice of 2007, BSE had a very small market proposed rule change to amend and restate the that the BSECC’s proposed rule change Articles of Incorporation of the Stock Clearing share. Therefore, the BSE Acquisition is consistent with Section 17A(b)(3)(I), Corporation of Philadelphia (‘‘SCCP’’) in would not change the number of active which requires that the rules of a connection with the Phlx Acquisition). See also exchanges or the distribution of market clearing agency not impose any burden Securities Exchange Act Release Nos. 58179 (July 17, 2008), 73 FR 42874 (July 23, 2008) (order share across exchanges. Accordingly, on competition not necessary or approving SR–Phlx–2008–31) and 58180 (July 17, the Commission finds that the BSE’s appropriate in furtherance of the 2008), 73 FR 42890 (July 23, 2008) (order approving proposed rule changes are consistent purpose of the Act. SR–SCCP–2008–01). Finally, the Commission will 28 with Section 6(b)(8), which requires that 15 U.S.C. 78f(b)(8) and 15 U.S.C. 78q–1(b)(3)(I). continue to monitor holding companies’ 29 See, e.g., Securities Exchange Act Release Nos. the rules of an exchange not impose any 53382 (February 27, 2006), 71 FR 11251 (March 6, burden on competition not necessary or ownership of multiple SROs for 2006) (SR–NYSE–2005–77) (approving proposed compliance with the Act, the rules and rule change relating to the combination of the New 31 See infra notes 38–47, 258–261 and regulations thereunder, as well as the York Stock Exchange, Inc. and Archipelago accompanying text for a discussion of proposals by SRO’s own rules. Holdings, Inc.); 58179, supra note 27. BSE and BSECC to adopt NASDAQ OMX’s By-Laws 30 The Depository Trust and Clearing Corporation as part of their rules. See also Securities Exchange A. BSE (‘‘DTCC’’) is a holding company that at one point Act Release No. 58183 (July 17, 2008), 73 FR 42850 owned five registered clearing agencies: The (July 23, 2008) (order approving SR–NASDAQ– 1. Relationship Between NASDAQ OMX National Securities Clearing Corporation (‘‘NSCC’’), 2008–035) (‘‘NASDAQ OMX By-Laws Approval and BSE; Jurisdiction Over NASDAQ the Depository Trust Company (‘‘DTC’’), the Order’’). OMX Government Securities Clearing Corporation 32 (‘‘GSCC’’), the MBS Clearing Corporation See, e.g., Securities Exchange Act Release No. 58092 (July 3, 2008), 73 FR 40144 (July 11, 2008), After the BSE Acquisition, BSE would (‘‘MBSCC’’), and the Emerging Markets Clearing become a subsidiary of NASDAQ OMX. Corporation (‘‘EMCC’’). See Securities Exchange Act in which the Commission recognized that Release Nos. 41786 (August 24, 1999), 64 FR 47882 ‘‘[n]ational securities exchanges registered under Although NASDAQ OMX is not itself an (September 1, 1999) (SR–DTC–99–17); 41800 Section 6(a) of the Exchange Act face increased SRO, its activities with respect to the (August 27, 1999), 64 FR 48694 (September 7, 1999) competitive pressures from entities that trade the operation of BSE must be consistent (SR–NSCC–99–10); 44987 (October 25, 2001), 66 FR same or similar financial instruments * * *.’’ 33 with, and must not interfere with, the 55218 (November 1, 2001) (SR–EMCC–2001–03); See Securities Exchange Act Release Nos. 44988 (October 25, 2001), 66 FR 55222 (November 55389 (March 2, 2007), 72 FR 10575 (March 8, self-regulatory obligations of BSE. 1, 2001) (SR–MBSCC–2001–01); and 44989 (October 2007) (order approving the establishment of CBOE NASDAQ OMX’s By-Laws make 25, 2001), 66 FR 55220 (November 1, 2001) (SR– Stock Exchange, LLC); 55392 (March 2, 2007), 72 applicable to all of NASDAQ OMX’s GSCC–2001–11). These clearing agencies provided FR 10572 (March 8, 2007) (order approving trading SRO subsidiaries, including BSE (after clearance and settlement services for different rules for non-option securities trading on CBOE instruments or provided different clearance and Stock Exchange, LLC); 54528 (September 28, 2006), settlement services for the same instruments. The 71 FR 58650 (October 4, 2006) (order approving 35 See Annual Report for the Depository Trust and GSCC and the MBSCC have since merged to form rules governing ISE’s electronic trading system for Clearing Corporation for 2007, page 14. NSCC is a the Fixed Income Clearing Corporation (‘‘FICC’’). equities). subsidiary of the DTCC, as are the FICC and the See Securities Exchange Act Release No. 47015 34 See Securities Exchange Act Release No. 57322 DTC. (December 17, 2002), 67 FR 78531 (December 24, (February 13, 2008), 73 FR 9370 (February 20, 2008) 36 In recent years, both BSECC and SCCP have 2002) (SR–GSCC–2002–09 and SR–MBSCC–2002– (File No. 10–182) (notice of application and forwarded all trades to NSCC for clearance and 01). The EMCC no longer operates as a clearing Amendment No. 1 thereto by BATS Exchange, Inc. settlement. agency. for registration as a national securities exchange). 37 See 15 U.S.C. 78q–1(a)(2)(A).

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the BSE Acquisition), certain provisions Similarly, the NASDAQ OMX Board, Certificate in its entirety. The restated of NASDAQ OMX’s Certificate and when evaluating any issue, would be BSE Certificate would provide for the NASDAQ OMX’s By-Laws that are required to take into account the issuance of 1,000 shares of common designed to maintain the independence potential impact on the integrity, stock (‘‘BSE Common Stock’’), all of of each of its SRO subsidiaries’ self- continuity, and stability of its SRO which would be held by NASDAQ regulatory function, enable each SRO subsidiaries.43 Finally, the NASDAQ OMX.48 The restated BSE Certificate subsidiary to operate in a manner that OMX By-Laws require that any changes would further provide that NASDAQ complies with the federal securities to the NASDAQ OMX Certificate and OMX may not transfer or assign any laws, and facilitate the ability of each By-Laws be submitted to the Board of shares of BSE Common Stock, in whole SRO subsidiary and the Commission to Directors of each of its SRO subsidiaries, or in part, to any entity, unless such fulfill their regulatory and oversight including BSE, and, if such amendment transfer or assignment is filed with and obligations under the Act.38 is required to be filed with the approved by the Commission under The By-Laws of NASDAQ OMX Commission pursuant to Section 19(b) Section 19 of the Act and the rules specify that NASDAQ OMX and its of the Act, such change shall not be promulgated thereunder.49 In addition, officers, directors, employees, and effective until filed with, or filed with the restated BSE Certificate would agents irrevocably submit to the and approved by, the Commission. contain provisions relating to the BSE jurisdiction of the United States federal The Commission believes that the board of directors (‘‘BSE Board’’) courts, the Commission, and each self- NASDAQ OMX By-Laws, as amended to including that the total number of regulatory subsidiary of NASDAQ OMX accommodate the BSE Acquisition, are directors (‘‘BSE Directors’’) constituting for the purposes of any suit, action or designed to facilitate the BSE’s ability to the BSE Board would be fixed from time proceeding pursuant to the United fulfill its self-regulatory obligations and to time by NASDAQ OMX, as the sole States federal securities laws, and the are, therefore, consistent with the Act. stockholder, and would be elected by rules and regulations thereunder, arising In particular, the Commission believes NASDAQ OMX to hold office until their out of, or relating to, the activities of any these changes are consistent with respective successors have been duly self-regulatory subsidiary.39 Further, Section 6(b)(1) of the Act,44 which elected and qualified.50 Of particular NASDAQ OMX agreed to provide the requires, among other things, that a importance are the BSE Board Commission with access to its books national securities exchange be so composition requirements in the BSE and records.40 NASDAQ OMX also organized and have the capacity to carry By-Laws relating to independence and agreed to keep confidential non-public out the purposes of the Act, and to fair representation of members.51 information relating to the self- comply and enforce compliance by its Finally, the restated BSE Certificate regulatory function of BSE and not to members and persons associated with would specifically provide that BSE’s use such information for any non- its members with the provisions of the business would include actions that regulatory purpose.41 In addition, the Act, the rules and regulations support its regulatory responsibilities NASDAQ OMX Board, as well as its thereunder, and the rules of the under the Act.52 officers, employees, and agents are exchange. The Commission finds that the BSE required to give due regard to the Under Section 20(a) of the Act,45 any Certificate, as proposed to be amended preservation of the independence of person with a controlling interest in and restated, is consistent with the Act, BSE’s self-regulatory function.42 NASDAQ OMX would be jointly and and, in particular, with Sections 6(b)(1) severally liable with and to the same and 6(b)(3) of the Act. The Commission 38 Provisions of NASDAQ OMX’s Certificate and extent that NASDAQ OMX is liable believes that the restated BSE Certificate By-Laws are rules of BSE and BSECC because they is designed to allow BSE to exercise are stated policies, practices, or interpretations of under any provision of the Act, unless BSE and BSECC, pursuant to Section 19(b) of the the controlling person acted in good those powers necessary to carry out the Act and Rule 19b–4 thereunder. Accordingly, BSE faith and did not directly or indirectly purposes of the Act and ensure and BSECC filed them with the Commission. See induce the act or acts constituting the compliance by its members with the Act Amendment No. 1 to the BSE Governance Proposal, and BSE rules. The Commission further supra note 4, and Amendment No. 1 to the BSECC violation or cause of action. In addition, 46 Governance Proposal, supra note 10 and infra note Section 20(e) of the Act creates aiding believes that the restriction on the 258 and accompanying text. and abetting liability for any person transfer or assignment of any shares of 39 See proposed Section 12.3, NASDAQ OMX By- who knowingly provides substantial BSE Common Stock without Laws. assistance to another person in violation Commission approval would minimize 40 See proposed Section 12.1(c), NASDAQ OMX the potential that a person could By-Laws. To the extent that they relate to the of any provision of the Act or rule activities of BSE, all books, records, premises, thereunder. Further, Section 21C of the improperly interfere with or restrict the officers, directors, and employees of NASDAQ Act 47 authorizes the Commission to ability of the Commission, BSE, or OMX would be deemed to be those of the BSE. See enter a cease-and-desist order against BOXR to carry out their regulatory id. any person who has been ‘‘a cause of’’ responsibilities under the Act. 41 See proposed Section 12.1(b), NASDAQ OMX By-Laws. This requirement to keep confidential a violation of any provision of the Act 3. Proposed New BSE By-Laws non-public information relating to the self- through an act or omission that the regulatory function is designed to prevent attempts person knew or should have known In the BSE Governance Proposal, the to limit the Commission’s ability to access and would contribute to the violation. BSE proposes to replace its Constitution examine such information or limit the ability of with new BSE By-Laws. The new BSE directors, officers, or employees of NASDAQ OMX 2. BSE Certificate By-Laws reflect NASDAQ OMX’s from disclosing such information to the Commission. See id. Other holding companies with In the BSE Governance Proposal, BSE expectation that BSE would be operated SRO subsidiaries have undertaken similar proposes to amend and restate the BSE with governance, regulatory, and market commitments. See, e.g., Securities Exchange Act structures similar to those of Nasdaq. Release No. 56955 (December 13, 2007), 72 FR 43 71979, at 71983 (December 19, 2007) (SR–ISE– See proposed Section 12.7, NASDAQ OMX By- 48 2007–101) (order approving the acquisition of Laws. See Article Fourth, restated BSE Certificate. International Securities Exchange, LLC’s parent, 44 15 U.S.C. 78f(b)(1). 49 Id. International Securities Exchange Holdings, Inc., by 45 15 U.S.C. 78t(a). 50 See Article Fifth, restated BSE Certificate. Eurex Frankfurt AG). 46 15 U.S.C. 78t(e). 51 See infra notes 53–84 and accompanying text. 42 See Section 12.1(a), NASDAQ OMX By-Laws. 47 15 U.S.C. 78u-3. 52 See Article Third, restated BSE Certificate.

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Key provisions of these new BSE By- least 20% of the BSE Directors would the sole stockholder, deems appropriate, Laws are discussed below. have to be Member Representative consistent with the compositional The property, business, and affairs of Directors and, as is currently the case, requirements of the BSE By-Laws.67 As BSE would be managed under the one Industry Director would have to be soon as practicable after election of the direction of the BSE Board.53 The exact selected as a representative of a firm or initial BSE Board, BSE would hold its number of BSE Directors would be organization that is registered with BSE annual meeting for the purpose of determined by NASDAQ OMX, as the for the purposes of participating in electing directors in accordance with sole stockholder, but in no event would options trading on the BOX Market the procedures set forth in the BSE By- the BSE Board have fewer than ten (‘‘BOX Participant Director’’).60 A BSE Laws.68 For subsequent boards, BSE directors.54 Director could not be subject to a Directors, other than the Member Moreover, the number of Non- statutory disqualification.61 The new Representative Directors and the BOX Industry Directors,55 including at least BSE By-Laws also permit up to two Participant Director,69 would be three Public Directors 56 and at least one officers of BSE, who would otherwise be nominated by a Nominating Committee BSE Director representative of issuers considered Industry Directors, to be appointed by the BSE Board 70 and then and investors,57 would have to equal or designated as Staff Directors,62 and elected by NASDAQ OMX as sole exceed the sum of the number of thereby be excluded from the definition stockholder.71 Industry Directors 58 and Member of Industry Director.63 The BSE Board also would appoint a Representative Directors.59 Further, at The initial BSE Board would be Member Nominating Committee selected by NASDAQ OMX, as the sole composed of no fewer than three and no 53 See Article IV, BSE By-Laws. stockholder, immediately following the more than six members.72 All members 54 See Section 4.2, BSE By-Laws. In addition, no BSE Acquisition. NASDAQ OMX would of the Member Nominating Committee decrease in the number of BSE Directors would shorten the term of any incumbent BSE Director. hold a special meeting (or sign a consent would be associated persons of a current See Article Fifth, restated BSE Certificate. in lieu thereof) for the purpose of BSE member. The BSE Board would 55 ‘‘Non-Industry Director’’ is a BSE Director electing the BSE Board. The initial BSE appoint such individuals after (excluding Staff Directors) who is: (i) A Public Board would satisfy the compositional appropriate consultation with Director; (ii) an officer or employee of an issuer of requirements in the BSE By-Laws.64 representatives of BSE members. The securities listed on BSE; or (iii) any other individual who would not be an Industry Director. See Article Specifically, the initial BSE Board Member Nominating Committee would I(bb), BSE By-Laws. would consist of at least three Public nominate candidates for the Member 56 ‘‘Public Director’’ is a BSE Director who has no Directors, one or two Staff Directors, at Representative Director positions to be material business relationship with a broker or a least two Member Representative filled. The candidates nominated by the dealer, BSE or its affiliates, or FINRA. See Article Directors,65 an Industry Director Member Nominating Committee would I(gg), BSE By-Laws. 66 57 See Section 4.3(a), BSE By-Laws. The BSE representing BOX Participants, at least be included on a formal list of Director representative of issuers and investors one Non-Industry Director candidates (‘‘List of Candidates’’). would be nominated by the Nominating and representative of issuers and investors, BSE members may nominate Governance Committee and elected by NASDAQ and such additional Industry and Non- additional candidates for inclusion on OMX as the sole stockholder. See Sections 4.4(a) Industry Directors as NASDAQ OMX, as the List of Candidates by submitting, and 4.14(b), BSE By-Laws. 58 ‘‘Industry Director’’ is a person who: (i) Is or within the prescribed timeframe that is has served in the prior three years as an officer, Member Nominating Committee or voted upon by based on the preceding year’s voting director, or employee of a broker or dealer, BSE members pursuant to the BSE By-Laws (or date (‘‘Voting Date’’),73 a timely written excluding an outside director or a director not elected by the stockholders without such nomination or voting in the case of the initial engaged in the day-to-day management of a broker 67 See Section 4.3(b), BSE By-Laws. See also BSE or dealer; (ii) is an officer, director (excluding an Member Representative Directors elected pursuant to Section 4.3(b) of the BSE By-Laws). See Article Governance Proposal Notice, supra note 3, 73 FR outside director), or employee of an entity that at 26162. owns more than 10% of the equity of a broker or I(x), BSE By-Laws. 60 68 Id. Specifically, in accordance with Section dealer, and the broker or dealer accounts for more See Section 4.4, BSE By-Laws, and Section 14, 14.4(b) of the BSE By-Laws, the initial BSE Board than 5% of the gross revenues received by the BOXR By-Laws. selected by NASDAQ OMX would appoint a consolidated entity; (iii) owns more than 5% of the 61 See Section 4.3(a), BSE By-Laws. Nominating Committee and Member Nominating equity securities of any broker or dealer, whose 62 ‘‘Staff Director’’ is a BSE Director, selected at Committee, and such committees would nominate investments in brokers or dealers exceed 10% of his the sole discretion of the BSE Board, who is an candidates for election pursuant to the procedures or her net worth, or whose ownership interest officer of BSE. See Article I(g), BSE By-Laws. set forth in Section 4.4 of the BSE By-Laws, which otherwise permits him or her to be engaged in the 63 The exclusion of Staff Directors from the process is described below. Telephone conversation day-to-day management of a broker or dealer; (iv) definition of Industry Director is consistent with between John Yetter, Vice President and Deputy provides professional services to brokers or dealers, provisions previously approved by the Commission. General Counsel, Nasdaq, and Nancy Burke-Sanow, and such services constitute 20% or more of the See Securities Exchange Act Release No. 53128 Assistant Director, and Jennifer Dodd, Special professional revenues received by the Industry (January 13, 2006), 71 FR 3550 (January 23, 2006) Counsel, Division of Trading and Markets, Director or 20% or more of the gross revenues (order approving application of Nasdaq for Commission, on June 11, 2008. In Amendment No. received by the Industry Director’s firm or registration as a national securities exchange) 1 to the BSE Governance Proposal, BSE states that partnership; (v) provides professional services to a (‘‘Nasdaq Exchange Approval Order’’). See also the initial BSE Board will populate the Committees director, officer, or employee of a broker, dealer, or Securities Exchange Act Release No. 44280 (May 8, of the BSE Board and BSE’s standing committees in corporation that owns 50% or more of the voting 2001), 66 FR 26892 (May 15, 2001) (order approving accordance with the compositional requirements of stock of a broker or dealer, and such services relate amendment to the National Association of Sections 4.13 and 4.14 of the BSE By-Laws. See to the director’s, officer’s, or employee’s Securities Dealers (‘‘NASD’’) By-Laws to allow for Amendment No. 1 to the BSE Governance Proposal, professional capacity and constitute 20% or more the treatment of Staff Governors as ‘‘neutral’’ for supra note 4. The Commission notes that this of the professional revenues received by the purposes of Industry/Non-Industry balancing on the would include the initial Nominating Committee Industry Director or 20% or more of the gross NASD Board of Governors). and Member Nominating Committee. See Section revenues received by the Industry Director’s firm or 64 See Section 4.3(b), BSE By-Laws. 4.14(b), BSE By-Laws. partnership; or (vi) has a consulting or employment 65 The initial Member Representative Directors 69 See infra notes 207–216 and accompanying text relationship with or provides professional services would be officers, directors, or employees of BSE for a description of the nomination and election to BSE or any affiliate thereof or to FINRA or has members. See BSE Governance Proposal Notice, process for the BOX Participant Director who would had any such relationship or provided any such supra note 3, at 73 FR 26162. serve on the BSE Board. services at any time within the prior three years. 66 ‘‘BOX Participant’’ is a firm or organization that 70 See Article I(t), BSE By-Laws. is registered with BOX for purposes of participating See Section 4.14(b), BSE By-Laws. 71 59 See Section 4.3(a), BSE By-Laws. ‘‘Member in options trading on the BOX Market as an order See Section 4.4(a), BSE By-Laws. Representative Director’’ is a BSE Director who has flow provider or market maker. See Section 1.1, 6th 72 See Section 4.14, BSE By-Laws. been elected by NASDAQ OMX as the sole BOX LLC Agreement. See also BOX Rules, Chapter 73 The Voting Date is a date selected by the BSE stockholder after having been nominated by the II. Board for BSE members to vote with respect to

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petition executed by the authorized Candidates who receive the most votes the exchange’s directors and the representatives of 10% or more of all would be submitted to NASDAQ OMX administration of its affairs. The BSE members. If there is only one for election,76 and NASDAQ OMX Commission finds that the requirement candidate for each Member would elect those candidates.77 under BSE By-Laws that at least 20% of Representative Director seat by the date The Commission finds that the the BSE Directors represent members,81 on which a BSE member may no longer proposed changes regarding the and the process for selecting Member submit a timely nomination, the composition of the BSE Board are Representative Directors, are designed Member Representative Directors would consistent with the Act, including to ensure the fair representation of BSE be elected by NASDAQ OMX directly Section 6(b)(1) of the Act,78 which members on the BSE Board. The from the List of Candidates nominated requires, among other things, that a Commission believes that the method by the Member Nominating Committee. national securities exchange be for selecting Member Representative If the number of candidates on the List organized to carry out the purposes of Directors on the BSE Board allows of Candidates exceeds the number of the Act and comply with the members to have a voice in BSE’s use Member Representative Director requirements of the Act. The of its self-regulatory authority.82 In positions to be filled, there would be a Commission previously has stated its particular, the Commission notes that Contested Vote,74 in which case each belief that the inclusion of public, non- the Member Nominating Committee is BSE member would have the right to industry representatives on exchange composed solely of persons associated cast one vote for each Member oversight bodies is critical to an with BSE members and is selected after Representative Director position to be exchange’s ability to protect the public consultation with representatives of BSE filled.75 The persons on the List of interest.79 Further, public members. In addition, the BSE By-Laws representatives help to ensure that no include a process by which members Member Representative Directors in the event there single group of market participants has can directly petition and vote for is more than one candidate for a Member representation on the BSE Board. The Representative Director position (‘‘Contested the ability to systematically Vote’’). As described below, the BSE Board would disadvantage other market participants Commission therefore finds that the select a Voting Date each year. However, a vote through the exchange governance process for selecting Member would be conducted on the Voting Date only in the process. The Commission believes that Representative Directors to the BSE event of Contested Vote. See BSE Governance public directors can provide unique, Board is consistent with Section 6(b)(3) Proposal Notice, supra note 3, 73 FR at 26161, n.11. of the Act.83 The Commission also notes In Amendment No. 1 to the BSE Governance unbiased perspectives, which should Proposal, BSE states that: ‘‘In order to make the enhance the ability of the BSE Board to that these provisions are consistent with intent of this definition clearer, immediately address issues in a non-discriminatory previous proposals approved by the following the closing of the [BSE Acquisition], Commission.84 [BSE] will propose to the newly constituted Board fashion and foster the integrity of BSE. of the Exchange an amendment to the definition to The Commission also finds that the 4. Committees read as follows: ‘‘ ‘Voting Date’ means the date composition of the BSE Board satisfies The proposed new BSE By-Laws selected by the Board on an annual basis, on which Section 6(b)(3) of the Act,80 which [BSE members] may vote with respect to Member requires that one or more directors be would include provisions governing the Representative Directors in the event of a Contested composition and authority of various Vote.’’ Following approval by the [BSE] Board, representative of issuers and investors [BSE] will immediately file the amendment as a BSE committees established by the BSE and not be associated with a member of 85 proposed rule change for approval by the the exchange or with a broker or dealer. Board. The BSE By-Laws would Commission. This clarifying change could not be The fair representation requirement in establish several standing BSE Board included in this filing because Article XX of [BSE’s] committees that are composed solely of current Constitution, which is being replaced by the Section 6(b)(3) of the Act is intended to proposed [BSE] By-Laws, provides that [BSE’s] give members a voice in the selection of BSE Directors and would delineate their members must approve amendments to the [BSE] general duties and compositional Constitution. The [BSE] members voted, on 86 in excess of such 20% limitation shall be requirements. These committees are December 4, 2007, to approve the [BSE] By-Laws as the Executive Committee, the Finance submitted in this filing and it would have been disregarded. Following approval by the [BSE] impracticable and unduly expensive to seek a Board, [BSE] will immediately file the amendment Committee, the Management second member vote for approval of this clarifying as a proposed rule change for approval by the Compensation Committee, the Audit change. Following adoption of the new By-Laws, Commission. This clarifying change could not be Committee, and the Regulatory the [BSE] Board will have authority to approve By- included in this filing because Article XX of [BSE’s] Law amendments.’’ See Amendment No. 1 to the current Constitution, which is being replaced by the Oversight Committee (‘‘BSE ROC’’). In BSE Governance Proposal, supra note 4. proposed [BSE] By-Laws, provides that [BSE’s] addition to these committees, the BSE Also, in the case of the first annual meeting held members must approve amendments to the By-Laws provide for the appointment by pursuant to the new BSE By-Laws, a nomination for Constitution. The members voted, on December 4, 2007, to approve the By-Laws as submitted in this the BSE Board of certain standing the Member Representative Director positions committees, not composed solely of BSE would be considered timely if delivered not earlier filing and it would have been impracticable and than the close of business on the later of the 120th unduly expensive to seek a second member vote for Directors, to administer various day prior to the first Voting Date and not later than approval of this clarifying change. Following provisions of the rules that BSE expects the close of business on the 90th day prior to the adoption of the new [BSE] By-Laws, the [BSE] to propose with respect to governance, first Voting Date, or the 10th day following the day Board will have authority to approve [BSE] By-Law on which public announcement of such Voting Date amendments.’’ See Amendment No. 1 to the BSE 81 is first made. See BSE Governance Proposal Notice, Governance Proposal, supra note 4. See Section 4.3(a), BSE By-Laws. supra note 3, 73 FR at 26161, n.12. See also Section 76 See Section 4.4(f), BSE By-Laws. 82 In addition, the BSE By-Laws provide that one 4.4(d), BSE By-Laws. 77 See Section 4.4(b), BSE By-Laws. BSE Director would represent BOX Participants. 74 See Section 1(k), BSE By-Laws. 78 15 U.S.C. 78f(b)(1). See infra notes 207–216 and accompanying text for a description of the nomination and election 75 In Amendment No. 1 to the BSE Governance 79 See Regulation of Exchanges and Alternative process for the BOX Participant Director who would Proposal, BSE states that: ‘‘In order to limit the Trading Systems, Securities Exchange Act Release serve on the BSE Board. influence that a single affiliated group of members No. 40760 (December 8, 1998), 63 FR 70844 83 might exercise over [BSE], immediately following (December 22, 1998). See also Securities Exchange 15 U.S.C. 78f(b)(3). the closing of the [BSE Acquisition], [BSE] will Act Release Nos. 53382, supra note 29, 71 FR at 84 See, e.g., Securities Exchange Act Release Nos. propose to the newly constituted [BSE Board] an 11261 n.121 and accompanying text; 53128, supra 58179, supra note 27; 53128, supra note 63; and amendment to stipulate that no [BSE member], note 63, 71 FR at 3553, n.54 and accompanying text; 49098 (January 16, 2004), 69 FR 3974 (January 27, either alone or together with its affiliates, may and 44442 (June 18, 2001), 66 FR 33733, n.13 and 2004) (order approving the demutualization of account for more than 20% of the votes cast for a accompanying text, (June 25, 2001) (SR–PCX–01– Phlx). candidate, and any votes cast by such [BSE 03). 85 See Sections 4.12–4.14, BSE By-Laws. member], either alone or together with its affiliates, 80 15 U.S.C. 78f(b)(3). 86 See Section 4.13, BSE By-Laws.

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listing, equity trading, and member impediments to or perfection of the costs associated with the regulatory discipline.87 These committees include mechanisms for a free and open market operations of BSE.97 the Member Nominating Committee, the and a national market system.91 Taken Section 6(b)(1) of the Act 98 requires Nominating Committee, the BSE Listing together, these provisions reinforce the an exchange to be so organized and have and Hearings Review Council, the BSE notion that BSE, while wholly-owned the capacity to be able to carry out the Review Council, the Quality of Markets by NASDAQ OMX, is not solely a purposes of the Act. The Commission Committee, the Market Operations commercial enterprise, but rather is an believes that BSE’s regulatory structure Review Committee, the Arbitration and SRO registered pursuant to the Act and is designed to insulate its regulatory Mediation Committee, and the Market subject to the obligations imposed by functions from its market and other Regulation Committee. the Act. commercial interests so that it can carry As noted above, all members of the The BSE ROC would be composed of out its regulatory obligations and, Member Nominating Committee must be Public Directors, each of whom also therefore, BSE’s proposal is consistent associated persons of a BSE member. In would need to qualify as an with the Act. addition, at least 20% of the members independent director pursuant to 6. Restrictions on Affiliation Between of the BSE Listing and Hearings Review Nasdaq Rule 4200.92 The BSE ROC BSE and Its Members: Proposed BSE Council, the BSE Review Council, the would be responsible for monitoring the Chapter XXXIX Quality of Markets Committee, and the adequacy and effectiveness of BSE’s Market Operations Review Committee regulatory program and assisting the a. Limitations on BSE Members’ must be composed of Member BSE Board in reviewing BSE’s Ownership of NASDAQ OMX Representatives. Moreover, the regulatory plan and the overall In connection with the transaction, in Nominating Committee, the BSE Review effectiveness of BSE’s regulatory the BSE Governance Proposal, BSE Council, the Quality of Markets functions.93 BSE also would have a proposes to add a new Chapter XXXIX, Committee, the Arbitration and Chief Regulatory Officer (‘‘BSE CRO’’) Section 1 to the BSE Rules to prohibit Mediation Committee, and the Market who would have general supervision of BSE members and persons associated Regulation Committee must be the BSE’s regulatory operations, with BSE members from beneficially compositionally balanced between including responsibility for overseeing owning more than 20% of the then- Industry members 88 and Non-Industry BSE’s surveillance, examination, and outstanding voting securities of members.89 These compositional enforcement functions and for NASDAQ OMX. Members that trade on requirements are designed to ensure that administering any regulatory services an exchange traditionally have had members are protected from unfair, agreements with another SRO to which ownership interests in such exchange. unfettered actions by an exchange BSE is a party.94 The BSE CRO would As the Commission has noted in the pursuant to its rules, and that, in have to meet with the BSE ROC in past, however, a member’s interest in an general, an exchange is administered in executive session at regularly scheduled exchange could become so large as to a way that is equitable to all those who meetings of such committee and at any cast doubt on whether the exchange can trade on its market or through its time upon request of the BSE CRO or fairly and objectively exercise its self- facilities. The Commission believes that any member of the BSE ROC. The BSE regulatory responsibilities with respect the proposed compositional balance of CRO could also serve as the General to that member.99 A member that is a these BSE committees is consistent with Counsel of BSE.95 controlling shareholder of an exchange the Section 6(b)(3) of the Act because it In addition, the BSE By-Laws would or an exchange’s holding company provides for the fair representation of contain a stipulation that dividends might be tempted to exercise that BSE members in the administration of could not be paid to the stockholders controlling influence by pressuring or the affairs of BSE.90 using regulatory funds, which are fees, directing the exchange to refrain from, fines, or penalties derived from the or the exchange otherwise may hesitate 5. Regulatory Oversight Responsibilities regulatory operations of BSE.96 This and Regulatory Funds to, diligently monitor and surveil the restriction on the use of regulatory member’s conduct or diligently enforce The BSE By-Laws would provide that funds is intended to preclude BSE from its rules and the federal securities laws the BSE Board, when evaluating any using its authority to raise regulatory with respect to conduct by the member proposal, would, to the fullest extent funds for the purpose of benefiting its that violates such provisions. permitted by applicable law, take into shareholders, or for other non-regulatory In addition, the NASDAQ OMX account: (i) the potential impact thereof purposes, such as executive Certificate imposes limits on direct and on the integrity, continuity, and stability compensation. Regulatory funds, of BSE and the other operations of BSE, however, would not be construed to 97 The Commission further notes that the BSX on the ability to prevent fraudulent and include revenues derived from listing Operating Agreement is being amended to adopt a manipulative acts and practices and on fees, market data revenues, transaction restriction on distributions of regulatory funds investors and the public, and (ii) comparable to the restriction proposed for inclusion revenues, or any other aspect of the in the BSE By-Laws. See proposed Section 9.2, BSX whether such would promote just and commercial operations of BSE, even if a Operating Agreement. equitable principles of trade, foster portion of such revenues are used to pay 98 15 U.S.C. 78f(b)(1). cooperation and coordination with 99 See, e.g., Securities Exchange Act Release Nos. persons engaged in regulating, clearing, 91 See Section 4.9, BSE By-Laws. 57478 (March 12, 2008), 73 FR 14521, 14523 (March 18, 2008) (SR–NASDAQ–2007–004 and SR– settling, processing information with 92 See Section 4.13(e), BSE By-Laws. 93 NASDAQ–2007–080) (‘‘NOM Approval Order’’); respect to and facilitating transactions Id. 55389, supra note 33, 72 FR at 10578; 55293 in securities, or assist in the removal of 94 See Section 5.10, BSE By-Laws. (February 14, 2007), 72 FR 8033, 8037 (February 22, 95 Id. The Commission has previously approved a 2007) (SR–NYSE–2006–120); 53382, supra note 29, similar structure. See Nasdaq Exchange Approval 71 FR at 11256; 51149 (February 8, 2005), 70 FR 87 See Section 4.14 and Articles VI–VII, BSE By- Order, supra note 63, 71 FR at 3555, n.103 and 7531, 7538 (February 14, 2005) (SR–CHX–2004–26); Laws. accompanying text (order approving application of 49718 (May 17, 2004), 69 FR 29611, 29624 (May 24, 88 See Article I(u), BSE By-Laws. Nasdaq for registration as a national securities 2004) (SR–PCX–2004–08); 49098, supra note 84, 69 89 See Article I(cc), BSE By-Laws. exchange, including the ability of the CRO to serve FR at 3986; 49067 (January 13, 2004), 69 FR 2761, 90 See, e.g., Securities Exchange Act Release Nos. as General Counsel). 2767 (January 20, 2004) (SR–BSE–2003–19) (‘‘BOX 58179, supra note 27; 53128, supra note 63; and 96 See Section 9.8, BSE By-Laws. See also Section LLC Agreement Order’’); and Nasdaq Exchange 49098, supra note 84. 1(ii), BSE By-Laws. Approval Order, supra note 63, 71 FR at 3552.

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indirect changes in control, which are The Commission finds that the or holding under Section 19(b) of the designed to prevent any shareholder ownership restriction in proposed Act.110 Second, BSE or an entity from exercising undue control over the Chapter XXXIX, Section 1 of the BSE affiliated with BSE could acquire or operation of its SRO subsidiaries and to Rules, combined with the voting maintain an ownership interest in, or ensure that its SRO subsidiaries and the limitations in Article Fourth.C of engage in a business venture with, an Commission are able to carry out their Section 12.5 of the NASDAQ OMX affiliate of a BSE member without filing regulatory obligations under the Act. Certificate and the NASDAQ OMX By- a proposed rule change relating to such Specifically, no person who beneficially Laws, is consistent with the Act, affiliation under Section 19(b) of the owns shares of common stock, preferred including Sections 6(b)(1) and 6(b)(5) of Act, if there were information barriers stock, or notes of NASDAQ OMX in the Act. These limitations should between the BSE member and BSE and excess of 5% of the securities generally reduce the potential for a BSE member its facilities. These information barriers entitled to vote may vote shares in to improperly interfere with or restrict would have to prevent the member from excess of 5%.100 This limitation would the ability of the Commission or BSE to having an ‘‘informational advantage’’ mitigate the potential for any NASDAQ effectively carry out their respective concerning the operation of BSE or its OMX shareholder to exercise undue regulatory oversight responsibilities facilities or ‘‘knowledge in advance of control over the operations of the BSE under the Act. other [BSE] members’’ of any proposed and facilitate BSE’s and the changes to the operations of BSE or its b. Limitations on Affiliation Between Commission’s ability to carry out their trading systems. Further, BSE may only BSE and Its Members regulatory obligations under the Act. notify an affiliated member of any The NASDAQ OMX Board may BSE also proposes to prohibit BSE or proposed changes to its operations or approve exemptions from the 5% voting an entity with which it is affiliated from trading systems in the same manner as limitation for any person that is not a acquiring or maintaining an ownership it notifies non-affiliated members. BSE broker-dealer, an affiliate of a broker- interest in, or engaging in a business and its affiliated member may not share dealer, or a person subject to a statutory venture 105 with, a BSE member or an employees, office space, or data disqualification under Section 3(a)(39) affiliate of a BSE member in the absence bases.111 Finally, the BSE ROC must of the Act,101 provided that the of an effective filing with the certify annually that BSE has taken all NASDAQ OMX Board also determines Commission under Section 19(b) of the reasonable steps to implement and that granting such exemption would be Act.106 Further, the proposed rule comply with the rule.112 consistent with the self-regulatory would prohibit a BSE member from Proposed BSE Rules Chapter XXXIX obligations of Nasdaq.102 Further, any becoming an affiliate 107 of BSE or an is consistent with rules of Nasdaq, such exemption from the 5% voting affiliate of an entity affiliated with BSE which the Commission previously limitation would not be effective until in the absence of an effective filing found consistent with the Act.113 The approved by the Commission pursuant under Section 19(b) of the Act.108 Commission similarly finds that to Section 19 of the Act.103 The BSE However, the proposed rule would proposed Chapter XXXIX to the BSE Governance Proposal reflects an exclude from this restriction two types Rules is consistent with the amendment to the NASDAQ OMX By- of affiliations. requirements of Section 6(b)(5) of the Laws to require the NASDAQ OMX First, a BSE member or an affiliate of Act,114 which requires that an exchange Board, prior to approving any a BSE member could acquire or hold an have rules designed, among other exemption from the 5% voting equity interest in NASDAQ OMX that is things, to promote just and equitable limitation, to determine that granting permitted pursuant to proposed BSE principles of trade, to remove such exemptions would also be Rules 109 (i.e., less than 20% of the impediments and to perfect the consistent with BSE’s self-regulatory outstanding voting securities) without mechanism of a free and open market obligations.104 the need for BSE to file such acquisition and a national market system, and in general, to protect investors and the 100 See Article Fourth.C., NASDAQ OMX the public, and (2) promote just and equitable public interest.115 Certificate. principles of trade, foster cooperation and The Commission is concerned about 101 15 U.S.C. 78c(a)(39). See Article Fourth.C.6., coordination with persons engaged in regulating, the potential for unfair competition and NASDAQ OMX Certificate. clearing, settling, processing information with 102 Specifically, the NASDAQ OMX Board must respect to and facilitating transactions in securities 110 determine that granting such exemption would (1) or assist in the removal of impediments to or Id. As discussed above, the proposed BSE not reasonably be expected to diminish the quality perfection of the mechanisms for a free and open Rules would provide that ‘‘[n]o member or person of, or public confidence in, NASDAQ OMX or market and a national market system. See proposed associated with a member shall be the beneficial Nasdaq or the other operations of NASDAQ OMX Section 12.5, NASDAQ OMX By-Laws. owner of greater than twenty percent (20%) of the and its subsidiaries, on the ability to prevent 105 Proposed BSE Rule, Chapter XXXIX, Section then-outstanding voting securities of [NASDAQ fraudulent and manipulative acts and practices on 2. BSE defines ‘‘business venture’’ as an OMX].’’ investors and the public, and (2) promote just and arrangement under which (1) BSE or an entity with 111 Proposed BSE Rule, Chapter XXXIX, Section equitable principles of trade, foster cooperation and which it is affiliated and (2) a BSE member or an 2(b)(2)(A). coordination with persons engaged in regulating, affiliate of a BSE member, engage in joint activities 112 Proposed BSE Rule, Chapter XXXIX, Section clearing, settling, processing information with with the expectation of shared profit and a risk of 2(b)(2)(B). respect to and facilitating transactions in securities shared loss from common entrepreneurial efforts. 113 See Nasdaq Rules 2130 and 2140. See also or assist in the removal of impediments to or 106 Id. In connection with the Phlx Acquisition, Nasdaq Exchange Approval Order, supra note 63, perfection of the mechanisms for a free and open Phlx proposed, and the Commission approved, a 71 FR at 3552, n. 41 and accompanying text, and market and a national market system. See Article similar rule. See Phlx Rule 985(b) and Securities Securities Exchange Act Release No. 54170 (July 18, Fourth.C.6, NASDAQ OMX Certificate. Exchange Act Release No. 58179, supra note 27, 73 2006), 71 FR 42149 (July 25, 2006) (SR–NASDAQ– 103 See Section 12.5, NASDAQ OMX By-Laws. FR at 42886–42887. 2006–006) (order approving Nasdaq’s proposal to 104 See Amendment No. 1 to the BSE Governance 107 Id. BSE defines ‘‘affiliate’’ as having the adopt Nasdaq Rule 2140, restricting affiliations Proposal, supra note 4. Specifically, the NASDAQ meaning specified in Rule 12b–2 under the Act, 17 between Nasdaq and its members). Also, in OMX Board must determine that granting such CFR 240.12b–2, provided, however, that one entity connection with the Phlx Acquisition, Phlx exemption would (1) not reasonably be expected to would not be deemed to be an affiliate of another proposed, and the Commission approved, similar diminish the quality of, or public confidence in, entity solely by reason of having a common rules. See Phlx Rule 985(a) and (b) and Securities NASDAQ OMX or its SRO Subsidiaries or the other director. Id. Exchange Act Release No. 58179, supra note 27, 73 operations of NASDAQ OMX and its subsidiaries, 108 15 U.S.C. 78s(b). FR at 42886–42887. on the ability to prevent fraudulent and 109 Proposed BSE Rule, Chapter XXXIX, Section 114 15 U.S.C. 78f(b)(5). manipulative acts and practices on investors and 1. 115 Id.

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conflicts of interest between an and NOS would remain facilities of continues to be concerned about exchange’s self-regulatory obligations Nasdaq. Under Nasdaq Rules, NES potential unfair competition and and its commercial interests that could operates as a facility 118 of Nasdaq and conflict of interest between an exist if an exchange were to otherwise routes orders to other market centers as exchange’s self-regulatory obligations become affiliated with one of its directed by Nasdaq. Similarly, NOS is and its commercial interest when the members, as well as the potential for operated and regulated as a facility of exchange is affiliated with one of its unfair competitive advantage that the Nasdaq with respect to its routing of members, the Commission believes that affiliated member could have by virtue System Securities (‘‘NOS facility it is appropriate and consistent with the of informational or operational function’’), and, consequently, the Act to permit NES and NOS to become advantages, or the ability to receive operation of NOS in this capacity would affiliates of BSE for the limited purpose preferential treatment.116 The be subject to BSE oversight, as well as of providing routing services for Nasdaq Commission believes that the proposed Commission oversight.119 Nasdaq is for orders that first attempt to access additions to the BSE Rules are designed responsible for ensuring that NES and liquidity on Nasdaq’s systems before to mitigate these concerns by requiring NOS are operated consistent with routing to BSE, and in light of the that BSE file a proposed rule change in Section 6 of the Act and Nasdaq’s Rules. protections afforded by the other connection with proposed affiliations In addition, Nasdaq must file with the conditions described above. Commission rule changes and fees between BSE and its members, unless B. BOX such affiliation is due to a member’s relating to NES and NOS. Third, use of interest in NASDAQ OMX that is NES’s and NOS’s routing function by 1. BSE Transfer of BOX Interest permitted under proposed Chapter Nasdaq members would continue to be The BOX Market is a facility of XXXIX, Section 1 of the BSE Rules or optional. Parties that do not desire to BSE.124 BOXR is BSE’s wholly-owned conforms to the specified information use NES may enter orders into Nasdaq subsidiary,125 to which BSE has barrier requirements. as immediate-or-cancel orders or any delegated, pursuant to a delegation plan other order-type available through If BSE entered into an affiliation with (‘‘Delegation Plan’’),126 certain self- Nasdaq that are ineligible for routing.120 a BSE member (or any other party) that regulatory responsibilities related to the Similarly, NOM participants are not resulted in a change to a BSE Rule or the BOX Market (BSE together with BOXR required to use NOS to route orders, and need to establish new BSE Rules, as with respect to the BOX Market, a NOM participant may route its orders defined under the Act, then such ‘‘Regulatory Authority’’).127 affiliation would be subject to the rule through any available router it 121 In the BOX Transfer Proposal, BSE filing requirements of Section 19(b) of selects. In addition, the Commission proposes to transfer its 21.87% the Act and Rule 19b–4 thereunder. notes that NES and NOS are members of ownership interest in BOX to MX US. an SRO unaffiliated with Nasdaq, which Following this transfer, BSE no longer 7. Exceptions to Limitations on serves as their designated examining would have any ownership interest in Affiliation Between BSE and Its authority under Rule 17d–1.122 Members BOX and MX US would have a 53.24% In the past, the Commission has 128 expressed concern that the affiliation of ownership interest. Because BSE NASDAQ OMX currently owns two would no longer have an ownership broker-dealers: (1) NASDAQ Execution an exchange with one of its members raises potential conflicts of interest, and interest, it no longer would be admitted Services, LLC (‘‘NES’’), and (2) and named as a BOX Member.129 The NASDAQ Options Services, LLC the potential for unfair competitive advantage.123 Although the Commission proposed changes to the BOX LLC (‘‘NOS’’). NES and NOS are members of Agreement reflect this change. However, BSE. Absent relief, after the closing of Securities;’’ and (2) routes orders in options that are NASDAQ OMX’s acquisition of BSE, 124 not currently trading on NOM (‘‘Non-System See Securities Exchange Act Release Nos. NASDAQ OMX’s ownership of NES and Securities’’). See NOM Rules, Chapter VI Sections 49066 (January 13, 2004), 69 FR 2773 (January 20, NOS would cause NES and NOS to 1(b) and 11. See also NOM Approval Order, supra 2004) (SR–BSE–2003–17); 49065 (January 13, 2004), violate the provision in proposed BSE note 99. With respect to System Securities, NOM 69 FR 2768 (January 20, 2004) (SR–BSE–2003–04) participants may designate orders to be routed to (‘‘BOXR Order’’); 49068 (January 13, 2004), 69 FR Rules Chapter XXXIX, Section 2 another market center when trading interest is not 2775 (January 20, 2004) (SR–BSE–2002–15); and prohibiting BSE members from being available on NOM or to execute only on NOM. See BOX LLC Agreement Order, supra note 99. Section affiliated with BSE. NOM Rules, Chapter VI, Section 11. See also NOM 3(a)(2) of the Act states that ‘‘[t]he term ‘facility’ BSE has proposed, in the BSE Approval Order, supra note 99, 73 FR at 14532– when used with respect to an exchange includes its premises, tangible or intangible property whether Governance Proposal, that NES and 14533. 118 See Nasdaq Rule 4758(b)(3). See also on the premises or not, any right to the use of such NOS be permitted to become affiliates of Securities Exchange Act Release No. 56708 (October premises or property or any service thereof for the BSE, subject to certain conditions and 26, 2007), 72 FR 61925 (November 1, 2007) (SR– purpose of effecting or reporting a transaction on an limitations. First, BSE proposes that NASDAQ–2007–078) (‘‘NES Routing Release’’). As exchange (including, among other things, any system of communication to or from the exchange, NES and NOS would only route orders a facility of Nasdaq, Nasdaq Rule 4758(b) acknowledges that Nasdaq is responsible for filing by ticker or otherwise, maintained by or with the to BSE that first attempt to access with the Commission rule changes related to the consent of the exchange), and any right of the liquidity on Nasdaq.117 Second, NES operation of, and fees for services provided by, NES exchange to the use of any property or service.’’ 15 and that NES is subject to exchange non- U.S.C. 78c(a)(2). 125 116 See Securities Exchange Act Release No. discrimination requirements. See BOXR Order, supra note 124. 53382, supra note 29. See also Securities Exchange 119 See NOM Rules, Chapter 11(e). See also NOM 126 See BSE Rules, Chapter XXXVI. See also Act Release No. 54170, supra note 113. Approval Order, supra note 99, 73 FR at 14533. BOXR Order, supra note 124. 120 117 NES currently provides to Nasdaq members See Nasdaq Rule 4758(b)(7). 127 See Section 1.1, 6th BOX LLC Agreement. optional routing services to other market centers, 121 See NOM Rules, Chapter VI, Section 11(a) 128 MX US currently has a 31.37% ownership including BSE, as set forth in Nasdaq’s rules. See (allowing Participants to designate orders as interest in BOX. See Securities Exchange Act Nasdaq Rules 4751, 4755, and 4758. NES does not available for routing or not available for routing). Release No. 57260 (February 1, 2008), 73 FR 7617 currently route to BSE because BSE currently does See also NOM Approval Order, supra note 99, 73 (February 8, 2008) (SR–BSE–2008–06). not trade equity securities. See infra note 222. NOS FR at 14533, n.91 and accompanying text. 129 ‘‘BOX Member’’ means a person admitted and provides to Nasdaq members that are Nasdaq 122 See Nasdaq Rule 4758(b)(4), and NOM Rules, named as a member on schedules to the 5th BOX Options Market (‘‘NOM’’) participants routing Chapter 11(e). See also NES Routing Release, supra LLC Agreement and any person admitted to BOX services to other market centers. Pursuant to note 118; and NOM Approval Order, supra note 99, as an additional or substitute member of BOX, in Nasdaq’s rules, NOS: (1) routes orders in options 73 FR at 14533, n.189 and accompanying text. such person’s capacity as a member of BOX. See currently trading on NOM, referred to as ‘‘System 123 See supra note 116 and accompanying text. Section 1.1, 5th BOX LLC Agreement.

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pursuant to the revised BOX LLC longer would hold ownership interest in impair BSE’s or the Commission’s Agreement, the BOX Market would BOX, BSE would remain the SRO for the ability to discharge their respective remain a facility of BSE, and BSE would BOX Market. As the Commission has regulatory and oversight remain the SRO for the BOX Market.130 noted in the past, ‘‘the Act does not responsibilities, and is consistent with BSE, together with BOXR, would retain require that an SRO have any ownership the Act. regulatory control over the BOX Market interest in the operator of one of its and BSE, as the SRO, would remain facilities.’’ 136 Moreover, BOX is 2. BSE Interim Certificate responsible for ensuring compliance obligated under the BOX LLC BSE plans to distribute the net with the federal securities laws and all Agreement to continue to operate the proceeds from the transfer of its interest applicable rules and regulations.131 BOX Market in a manner consistent in BOX to BSE member owners.140 To Section 8.4(f) of the current BOX LLC with the regulatory and oversight effectuate this distribution, in the BSE Agreement requires that any transfer responsibilities of BSE and with the Act Interim Certificate Proposal, BSE that results in the acquisition and and rules and regulations thereunder.137 proposes to amend the BSE Certificate holding by any person, alone or together As discussed below, BSE will have veto to remove a provision that prevents BSE with any affiliate of such person, of an power over planned or proposed from making distributions and to add a aggregate percentage interest which changes to BOX or the BOX Market, and provision that would allow BSE to meets or crosses the threshold of 20% if the Regulatory Authority, in its sole redeem a portion of each membership in or any successive 5% be subject to a discretion, determines that a planned or exchange for a pro rata share of the net rule filing pursuant to Section proposed change to BOX or the BOX proceeds from its transfer of BSE’s 19(b)(1).132 Section 8.4(f) also requires Market is not consistent with Regulatory interest in BOX.141 that any transfer that reduces BSE’s Authority Rules or SEC Rules governing The BSE Certificate as proposed to be aggregate ownership interest in BOX the BOX Market or BOX Participants, amended as just described is referred to below the 20% threshold be subject to the Regulatory Authority could direct as the Interim Certificate and would be 133 a rule filing. BSE has filed the BOX to modify the proposal.138 effective immediately prior to the proposed transfer of its interest in BOX Moreover, the books, premises, officers, transfer of BSE’s interest in BOX to MX to MX US in accordance with these directors, agents and employees of BOX US.142 Immediately thereafter, this provisions of the BOX LLC Agreement. are deemed to be the books, premises, Interim Certificate would be amended The Commission believes that BSE’s officers, directors, agents and employees and restated in its entirety in connection transfer of its 21.87% interest in BOX to of BSE.139 In addition, the Commission with the BSE Acquisition.143 MX US is consistent with the Act. MX has authority to inspect BOX’s books The Commission believes that the US is currently a BOX Member and and records because BOX is the operator Interim Certificate is consistent with the therefore is bound by all the provisions of the BOX Market, a facility of an Act. The sole purpose of the Interim of the current BOX LLC Agreement 134 exchange. Accordingly, the Commission Certificate is to enable BSE to distribute and would similarly be bound by the believes that the transfer of BSE’s to BSE member owners the proceeds provisions of the revised BOX LLC ownership interest in BOX would not from the transfer of BSE’s interest in Agreement.135 Further, although BSE no BOX to MX US. The Interim Certificate public interest. See Section 5.3, 6th BOX LLC would be in effect only until the BSE 130 See Section 3.2(a)(i), 6th BOX LLC Agreement Agreement. See also BOX LLC Agreement Order, (‘‘BSE will provide SEC-approved SRO status for supra note 99, 69 FR at 2765. Certificate is amended and restated in the BOX Market, the Regulatory Authority will 136 In the BOX LLC Agreement Order, the its entirety, as discussed above, in provide the regulatory framework for the BOX Commission approved the operating agreement connection with the BSE Acquisition. Market and the Regulatory Authority, together with governing the BOX Market. At the time of the BOX The Commission believes that allowing BOX, will have regulatory responsibility for the LLC Agreement Order, BSE did not hold the largest activities of the BOX Market.’’). BSE also proposes ownership interest in BOX, but the Commission such a distribution would not have any that the SRO for the BOX Market may be changed noted that the Act does not require that an SRO adverse effect on the ability of BSE to by a vote of the BOX Board and the approval of the have any ownership interest in the operator of its fulfill its regulatory obligations in Commission. See Section 1.1, 6th BOX LLC facility. See BOX LLC Agreement Order, supra note relation to the BOX Market, because Agreement. 99, 69 FR at 2764. See also Securities Exchange Act 131 See infra notes 144–164 and notes 185–199 Release No. 44983 (October 25, 2001), 66 FR 55225 funding for the regulation of the BOX and accompanying text. (November 1, 2001) (‘‘ArcaEx Approval Order’’). In Market would be established through a 132 See Section 8.4(f), 5th BOX LLC Agreement. the ArcaEx Approval Order, the Commission regulatory services agreement between 133 Id. approved the establishment of Archipelago BSE and BOX and not with the proceeds 134 Exchange (‘‘ArcaEx’’) as a facility of the Pacific MX, a parent corporation of MX US, has from the transfer of BSE’s interest in agreed to abide by all of the provisions of the 5th Exchange, Inc. (‘‘PCX,’’ n/k/a NYSE Arca, Inc.). BOX LLC Agreement, including those provisions ArcaEx was operated by the Archipelago Exchange, BOX to MX US. requiring submission to the jurisdiction of the L.L.C. (‘‘Arca L.L.C.’’). At the time of the ArcaEx Commission. See Securities Exchange Act Release Approval Order, PCX’s ownership interest in Arca 3. BOX LLC Agreement L.L.C. consisted solely of a 10% interest in No. 57713 (April 25, 2008), 73 FR 24327 (May 2, In conjunction with BSE’s divestiture 2008) (SR–BSE–2008–28). Archipelago Holdings, LLC, the parent company of 135 These provisions of the BOX LLC Agreement Arca L.L.C. See also Securities Exchange Act of BOX, BSE also proposes, in the BOX provide that MX US would, among other things, Release Nos. 41210 (March 24, 1999), 64 FR 15857 Transfer Proposal, to amend the BOX comply with the federal securities laws and the (April 1, 1999) (SR–Phlx–96–14) (order approving LLC Agreement to reflect BSE’s rules and regulations thereunder; cooperate with electronic system offering VWAP that was operated the Commission and the Regulatory Authority as a facility of Phlx, where Phlx had no ownership 140 pursuant to their regulatory authority and the interest in the operation of the system) and 54538 All BSE members, including lessors but not provisions of the revised BOX LLC Agreement; and (September 29, 2006), 71 FR 59184 (October 6, lessees, and excluding electronic access members, engage in conduct that fosters and does not interfere 2006) (SR–Phlx–2006–43) (order approving Phlx’s would be entitled to receive their pro rata share of with BOX’s ability to prevent fraudulent and New Equity Trading system and operation of equity interest in BOX based on the outstanding manipulative acts and practices; promote just and optional outbound router as a facility of Phlx, number of such BSE memberships. equitable principles of trade; foster cooperation and where Phlx had no ownership interest in the third 141 See Article Fourth, Interim Certificate. The coordination with persons engaged in regulating, party operator). Interim Certificate also would delete obsolete text clearing, settling, processing information with 137 See infra notes 144–164 and notes 185–199 regarding BSE incorporators. respect to, and facilitating transactions in securities; and accompanying text. 142 See BSE Interim Certificate Proposal Notice, remove impediments to and perfect the mechanism 138 See infra notes 147–164 and accompanying supra note 7, 73 FR at 25810. of a free and open market and a national market text. 143 See BSE Governance Proposal Notice, supra system; and, in general protect investors and the 139 See infra note 187 and accompanying text. note 3, 73 FR 26159.

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continuing role as the SRO of its facility, Authority and BOX.150 Moreover, if appropriate to eliminate or prevent the the BOX Market. BSE, in its sole discretion, determines Regulatory Deficiency and allow the that a Regulatory Deficiency exists, BSE Regulatory Authority to perform and a. BSE as the SRO for the BOX Market may direct BOX to undertake such fulfill its regulatory responsibilities 158 The BOX LLC Agreement provides modifications as are necessary or under the Act. that as long as BSE maintains 8% or appropriate to eliminate the Regulatory Notice would not be required to be 151 provided to the Regulatory Authority if greater interest in BOX, BSE would have Deficiency. Prior to implementation, a proposed change were a ‘‘Non-Market the right to designate and retain two the Regulatory Authority would be Matter.’’ 159 Any planned or proposed directors on the BOX board of directors required to affirmatively approve such planned or proposed changes.152 If the change to BOX that has a regulatory (‘‘BOX Board’’).144 BSE no longer would Regulatory Authority, in its sole component would not fall within the be entitled to maintain two directors on discretion, determines that a proposed definition of Non-Market Matters.160 the BOX Board following its transfer of or planned change to BOX or the BOX The presence of a Regulatory interest to MX US. BSE, therefore, Market is not consistent with Regulatory Director 161 on the BOX Board is proposes to amend the BOX LLC Authority Rules 153 or SEC Rules 154 designed to help ensure that no matter Agreement to provide that as long as the governing the BOX Market or BOX with a regulatory component is BOX Market remains a facility of BSE, Participants, or impedes the Regulatory considered a Non-Market Matter by BSE would have the right to designate Authority’s ability to regulate the BOX BOX. and retain one non-voting director Market or BOX Participants or to fulfill These proposed changes to the BOX (‘‘Regulatory Director’’) on the BOX its obligations under the Act,155 the LLC Agreement, which give the 145 Board. The Regulatory Director Regulatory Authority, again in its sole Regulatory Authority notice of changes would have the right to attend all discretion, could direct BOX to modify and the authority to require meetings of the BOX Board and the proposal such that it does not cause modification prior to implementation if committees thereof and receive notice of a Regulatory Deficiency.156 BOX would such changes would cause Regulatory meetings and copies of the meeting not implement the proposed change Deficiencies, are designed to replace the materials provided to other BOX until such change, and any required current BOX LLC Agreement’s directors.146 modifications, are approved by the provisions that state that, at all times Under the current BOX LLC BOXR board of directors (‘‘BOXR when BSE is a BOX Member, Major Agreement, BSE holds veto power over Board’’).157 Further, in the event that the Actions of BOX would not be effective certain ‘‘Major Actions,’’ which relate to Regulatory Authority, in its sole unless BSE-designated directors both commercial and regulatory actions. discretion, determines that a Regulatory affirmatively vote for such Major 162 After the transfer of its ownership Deficiency could exist or would result Actions. Major Actions of BOX interest to MX US, BSE, as the SRO for from the change as planned, the include, among others, merger or the facility, would continue to have a Regulatory Authority could direct BOX consolidation of BOX with any other regulatory interest in the BOX Market. to undertake such modifications to BOX entity or the sale by BOX of any material In connection with the sale of BSE’s or the BOX Market as are necessary or portion of its assets, entry by BOX into ownership interest, the BOX LLC any line of business other than the Agreement is being amended to 150 See Section 3.2(a)(ii), 6th BOX LLC business contemplated in the BOX LLC Agreement. Agreement, and making any eliminate BSE’s veto power over Major 151 See Section 3.2(a)(iv), 6th BOX LLC Actions of BOX, but BSE would fundamental change in the market Agreement. structure of BOX.163 Following BSE’s continue to hold veto power over all 152 See Section 3.2(a)(ii), 6th BOX LLC regulatory actions. Agreement. The Regulatory Authority would also divestiture of BOX, however, BSE receive notice of any planned or proposed change, would no longer have voting directors Specifically, BSE proposes to amend pursuant to which the BOX Market would cease to on the BOX Board. BSE, therefore, the BOX LLC Agreement to provide that be a facility of BSE. BOX would not be required, however, to obtain consent from the Regulatory would be unable to affirmatively vote on BSE, with certain exceptions discussed Authority for any such planned or proposed Major Actions of BOX. 147 below, would have veto power over change, provided that the Commission has The Commission believes that these planned or proposed changes to BOX or approved such action. The BOX LLC Agreement proposed changes are consistent with the BOX Market.148 These amendments does not affect BSE’s obligations under Section 19 of the Act to file all proposed rule changes with the the Act. The revised BOX LLC to the BOX LLC Agreement would Commission. Accordingly, if any proposed change Agreement reflects BSE’s continuing provide that the Regulatory would be required to be filed as a proposed rule status as the SRO for its facility, the Authority 149 would receive notice of change under the Act, BOX could not implement BOX Market, by providing that the planned or proposed changes to BOX, or such change until such change became effective under the Act. 158 the BOX Market pursuant to request for 153 ‘‘Regulatory Authority Rules’’ means the rules The cost of any such modifications must be change procedures established by the of the Regulatory Authority, including the BOX paid by BOX. See Section 3.2(a)(iv), 6th BOX LLC mutual agreement of the Regulatory Rules that constitute ‘‘rules of an exchange’’ within Agreement. the meaning of Section 3 of the Act and that pertain 159 Non-Market Matters include changes relating to the BOX Market. See Section 1.1, 6th BOX LLC solely to one or more of the following: marketing, 144 See Section 4.1(b), 5th BOX LLC Agreement. Agreement. administrative matters, personnel matters, social or 145 See Section 4.1(a)(i), 6th BOX LLC Agreement. 154 ‘‘SEC Rules’’ mean the Act and such statutes, team-building events, meetings of BOX Members, A Regulatory Director is a member of the senior rules, regulations, interpretations, releases, orders, communication with BOX Members, finance, management of the regulation staff of the Regulatory determinations, reports, or statements as are location, and timing of BOX Board meetings, market Authority, who is separated from the business administered, enforced, adopted or promulgated by research, real property, equipment, furnishings, operations of BSE via effective information barriers the Commission. See Section 1.1, 6th BOX LLC personal property, intellectual property, insurance, and is not an employee, officer, or director of Agreement. contracts unrelated to the operation of the BOX NASDAQ OMX or its affiliates, other than BSE and 155 The operation of BOX or the BOX Market in Market, and de minimis items. See Section BSE’s subsidiaries. See Section 1.1, 6th BOX LLC such manner would be referred to as a ‘‘Regulatory 3.2(a)(ii), 6th BOX LLC Agreement. Agreement. Deficiency.’’ See Section 1.1, 6th BOX LLC 160 See Section 3.2(a)(ii), 6th BOX LLC 146 See Section 4.2(d), 6th BOX LLC Agreement. Agreement. Agreement. 147 See infra note 159 and accompanying text. 156 See Section 3.2(a)(iii), 6th BOX LLC 161 See Section 4.1(a)(i), 6th BOX LLC Agreement. 148 See Section 3.2, 6th BOX LLC Agreement. Agreement. 162 See Section 4.4(b), 5th BOX LLC Agreement. 149 See supra text accompanying note 127. 157 Id. 163 Id.

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Regulatory Authority would receive representing the BOX Participants and represent BOX Participants. Because notice of any planned or proposed four other BSE Directors who do not 20% of the BOX Committee would be changes to BOX or the BOX Market, have a material direct or indirect composed of directors who represent which would include a wider range of relationship with NASDAQ OMX, its BOX Participants, the Commission matters than those matters considered affiliates (other than service as directors believes that the proposed BOX Major Actions. Further, BOX would not of BSE or BOXR), or any provider of Committee composition satisfies the be able to implement a planned or BOX-related regulatory functions Section 6(b)(3) requirement. The proposed change if the Regulatory outsourced by BSE.168 Furthermore, the Commission previously has found 20% Authority, in its sole discretion, proposed Resolutions would provide representation to satisfy the Section determines that such change could that at least 50% of members of the BOX 6(b)(3) requirement.173 cause a Regulatory Deficiency. In Committee must be Public Directors.169 addition, if the Regulatory Authority The proposed Resolutions also would c. BSE and BOXR Boards determines that a Regulatory Deficiency provide that any resolution or other The BOXR By-Laws require that at exists or is planned, it may direct BOX action that would have the effect of least 20% of the BOXR Board (but no to undertake such modifications to BOX dissolving the BOX Committee or fewer than two directors) be composed or the BOX Market as are necessary or altering, amending, removing, or of directors representing BOX appropriate to eliminate or prevent the abridging the Resolutions or the powers Participants.174 In addition, the BOXR Regulatory Deficiency. As noted above, of the BOX Committee established By-Laws require that at least 50% of the the Commission has stated that the Act thereby must be submitted to the BSE directors on the BOXR Board be public does not require that an SRO have any Board, and if the same must be filed directors (‘‘BOXR Public Directors’’).175 ownership interest in the operator of with, or filed with and approved by, the In the BSE Governance Proposal, BSE one of its facilities.164 Although BSE Commission under Section 19 of the proposes to revise this definition such would not have an ownership interest in Act, then it would not be effective until that a BOXR Public Director could not BOX, the Commission believes that the filed with, or filed with and approved also have any material business foregoing changes would not limit BSE’s by, the Commission.170 relationship with an affiliate of BSE, role as the SRO for the BOX Market. The Section 6(b)(3) of the Act provides BOX, or BOXR.176 The Commission Commission, therefore, finds that these that the rules of an exchange must finds this proposed change to be proposed changes would allow BSE to assure that its members are fairly consistent with the Act. This change carry out its regulatory and oversight represented in the selection of the would make BOXR’s definition of responsibilities under the Act. exchange’s directors and in the Public Director substantially similar to administration of its affairs.171 This b. The BOX Committee the use of such term in BSE’s By- requirement allows members to have a Laws,177 which the Commission is In the BOX Transfer Proposal, BSE voice in an exchange’s use of its self- approving as part of this Order, and in proposes to adopt resolutions regulatory authority. Moreover, the Nasdaq’s By-Laws,178 which the (‘‘Resolutions’’) to establish a committee Section 6(b)(3) requirement helps to Commission previously found of the BSE Board, the BOX ensure that members are protected from 179 165 consistent with the Act. The Committee. The proposed unfair, unfettered actions by an Commission has previously stated its Resolutions are rules of an exchange exchange and that, in general, an belief that the inclusion of public, non- because they are stated policies, exchange is administered in a way that industry representatives on exchange practices, or interpretations (as defined is equitable to all those who trade on its oversight bodies is critical to an in Rule 19b–4 under the Act) of BSE, market or through its facilities. Because exchange’s ability to protect the public and must therefore be filed with the under the proposed Resolutions, the interest.180 The Commission believes Commission pursuant to Section 19(b) BSE Board would delegate to the BOX that public representatives help to of the Act and Rule 19b–4 thereunder. Committee its actions and decisions ensure that no single group of market Accordingly, BSE filed the proposed over the BOX Market, other than matters participants has the ability to Resolutions with the Commission.166 delegated to the BSE ROC, the systematically disadvantage other Pursuant to the proposed Resolutions, Commission believes that the market participants through the the BSE Board would delegate to the composition of the BOX Committee exchange governance process. Further, BOX Committee all actions and must be consistent with the fair the Commission believes that public decisions relating to BSE rules that representation requirement under directors can provide unique, unbiased govern the BOX Market, appeals from Section 6(b)(3) of the Act.172 In this perspectives, which should enhance the regulatory decisions of the BOXR Board, regard, the proposed Resolutions would ability of BOXR to address issues in a and, except to the extent otherwise require that one director of the five BSE delegated to the BSE ROC, regulation of Directors on the BOX Committee 173 167 See, e.g., Securities Exchange Act Release Nos. the BOX Market. The proposed 54494 (September 25, 2006), 71 FR 58023 (October Resolutions also would provide that the 168 See proposed Resolutions. Material direct or 2, 2006) (SR–CHX–2006–23) (order approving BOX Committee include a director indirect relationship include, without limitation, amendments to exchange by-laws and other any of the following: being an affiliate; serving as governance changes) and 53382, supra note 29. a board member, employee, officer, consultant, 174 164 See supra note 136 and accompanying text. See Section 4, BOXR By-Laws. advisor, or any provider of BOX-related regulatory 175 165 See Section 4.1(f), 6th BOX LLC Agreement. functions outsourced by BSE; being a party to any Currently, a BOXR Public Director is a director who has no material relationship with a broker or 166 See Exhibit 3B to the BOX Transfer Proposal contractual or other relationship pursuant to which dealer, BSE, BOX, or BOXR. See Section 1(p), BOXR Notice. more than $50,000 is paid; reporting to, controlling, By-Laws. 167 The BSE ROC would be responsible for being controlled by or holding an investment 176 See proposed Section 1(q), BOXR By-Laws. monitoring the adequacy and effectiveness of BSE’s greater than 5% in any such person; and being a 177 regulatory program and assisting the BSE Board in parent, child, sibling, spouse or in-law of such See BSE By-Laws, Article I(gg) and supra reviewing BSE’s regulatory plan and the overall person. See Section 4.1(f), 6th BOX LLC Agreement. notes 56 and 78–80 and accompanying text. effectiveness of BSE’s regulatory function. 169 See proposed Resolutions. See also infra note 178 See Nasdaq By-Laws, Article I(y). Regulatory actions and decisions delegated to the 207 and accompanying text. 179 See Nasdaq Exchange Approval Order, supra BSE ROC are not subject to the power and authority 170 See proposed Resolutions. note 63, 71 FR at 3553, n.47. of the BOX Committee. See supra note 93 and 171 15 U.S.C. 78f(b)(3). 180 Id. at 3553. See also Securities Exchange Act accompanying text. 172 15 U.S.C. 78f(b)(3). Release No. 40760, supra note 79.

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nondiscriminatory fashion and foster designed to preserve the independence directors or employees of BOXR.190 BSE the integrity of BOXR. of the self-regulatory functions of BSE also proposes that the Regulatory In addition, in the BOX Transfer that have been delegated to BOXR, Authority would inspect, copy, and Proposal, BSE proposes to change the BSE’s wholly-owned subsidiary, and to review the books and records of BOX, BOX LLC Agreement to require BSE, for enable BSE, together with BOXR, to and would use any information so long as the BOX Market remains a carry out its SRO functions. obtained thereby, only for purposes of facility of BSE, to allow BOX to fulfilling its regulatory obligations and d. Oversight of BOX Market designate one non-voting participant to for no other purpose.191 Further, BSE the BSE Board and to recommend at Although BOX does not carry out any proposes to add language stating that least 10%, but no fewer than one, of the regulatory functions, all of its activities although BOX would not be entitled to BOXR directors to the BOXR Board.181 must be consistent with the Act. The refuse the inspection, review, and/or BSE also would be required to include BOX Market is a facility of BSE and is copying its books and records by the on the BOXR Board at least two not solely a commercial enterprise, and Regulatory Authority, it would be directors representing BOX Participants, is subject to the Act.185 Accordingly, the entitled to damages in the event that but no fewer than 20% of all current BOX LLC Agreement 186 has such inspection, review, and/or copying directors,182 and at least four directors provisions designed to enable BOX to was conducted for any purpose other who do not have a material direct or operate in a manner that complies with than to fulfill the Regulatory Authority’s indirect relationship with NASDAQ the federal securities laws, including the regulatory responsibilities.192 OMX, its affiliates, or any provider of objectives and requirements of the Act. The Commission finds that these BOX-related regulatory functions Because BOX’s obligations endure as provisions are consistent with the Act. outsourced by BSE, other than service as long as the BOX Market is a facility of The Commission notes that BSE directors of BSE or BOXR.183 The BSE, regardless of the BSE’s transfer of proposes to delegate to BOXR, together proposed changes to the BOX LLC its ownership interest in BOX to MX with the BOX Committee, much of its Agreement would further require that US, BSE does not propose to amend the regulatory responsibilities over the BOX the directors on the BOXR Board, any aforementioned provisions, except as Market. Therefore, although BSE committees thereof, or the BOX provided below. proposes that access to books and Committee, or the directors otherwise In accordance with BSE’s obligations records would be limited to Permitted engaged in BOX-related meetings not as the SRO for the BOX Market, the Recipients and BOXR directors and have a material direct or indirect books, records, premises, officers, employees, within BSE’s proposed relationship with NASDAQ OMX or its directors, agents, and employees of BOX regulatory framework, this limitation affiliates or any provider of BOX-related are currently deemed to be the books, would not exclude any individuals who regulatory functions outsourced by BSE, premises, officers, directors, agents, and may need access to BOX books and other than service as directors of BSE or employees of BSE for the purpose of, records. Moreover, the Commission has BOXR.184 The Commission finds that, and subject to, oversight pursuant to the authority under the Act to inspect 187 with respect to the composition of the Act. Furthermore, the books and BOX’s books and records because BOX BOXR Board, the proposed changes records of BOX are subject at all times is the operator of the BOX Market, a satisfy the requirements of Section to inspection and copying by BSE and facility of an exchange. In addition, the 188 6(b)(3) of the Act because at least 20% the Commission. To this provision, Commission finds it consistent with the of BOXR Board directors must represent BSE proposes to add in the BOX Act that BSE proposes to specify that BOX Participants. The Commission Transfer Proposal that inspection, inspection, copying, and review of further finds that the prohibition on copying, and review of the books and books and records and the use of any BOXR Board directors, committee records of BOX by the Regulatory information obtained thereby be for members, and others from having a Authority at the premises of BOX, and purposes of fulfilling BSE’s regulatory material direct or indirect relationship access to any copied books and records obligations. The Commission notes that, with NASDAQ OMX or its affiliates or removed from the premises of BOX or because BOX would not be entitled to any provider of BOX-related regulatory produced to the Regulatory Authority at preclude BSE from inspecting, functions outsourced by BSE are its request, would in all cases be reviewing, or copying of its books and conducted by, or limited to, certain records, BOX could not rely on the individuals (such individuals referred to 181 The non-voting participant would have the books and records provisions of the 189 right to attend all meetings of the BOX Committee as, ‘‘Permitted Recipients’’) and revised BOX LLC Agreement to and all BOX-related deliberations of the BSE Board improperly hinder BSE from carrying and committees thereof and receive equivalent 185 See BOX LLC Agreement Order, supra note 99, out its regulatory and oversight notice and meeting materials as BSE directors. See 69 FR at 2765. responsibilities under the Act.193 Section 4.1(f), 6th BOX LLC Agreement. 186 See Sections 4.2, 12.1, 15, 16.5, and 19.6, 5th 182 See Section 4.1(f), 6th BOX LLC Agreement. BOX LLC Agreement. In the BOX Transfer Proposal, BSE See also infra note 208 and accompanying text. 187 See Section 12.1, 5th BOX LLC Agreement. also proposes to add certain other 183 Id. See also supra note 168. 188 Id. provisions to the BOX LLC Agreement. 184 Id. Moreover, all other persons permitted to 189 See Section 12.1, 6th BOX LLC Agreement. Specifically, BSE proposes to provide attend meetings of the BOXR Board or any Permitted Recipients are (i) the BSE CRO and those that all confidential information committees thereof or the BOX Committee or regulatory staff members responsible for regulatory otherwise engaged in BOX-related meetings could technology and budget, counsel to BSE CRO, or staff 190 not have a material direct or indirect relationship of BSE’s internal audit department, (ii) any member See Section 12.1, 6th BOX LLC Agreement. with NASDAQ OMX or its affiliates or any provider of the BSE Board serving on the BOX Committee 191 Id. of BOX-related regulatory functions outsourced by or BSE ROC, (iii) NASDAQ OMX CRO and staff in 192 Id. BSE unless they are Permitted Recipients (as the Office of General Counsel, (iv) any member of 193 See Section 12.1, 6th BOX LLC Agreement. defined below), BOXR directors, officers, or the NASDAQ OMX Board of Directors serving on Instead, BSE proposes that BOX would be entitled employees, other parties making presentations to the NASDAQ OMX ROC, and (v) any Professional to damages in the event any inspection, copying, or directors of the BSE Board engaged in BOX-related Services provider. ‘‘Professional Services’’ means review of BOX books and records by the Regulatory meetings, the BOXR Board, the BOX Committee or services performed by outside counsel, consultants, Authority is, in whole or in part, used by the the BSE ROC if such parties’ participation is only any provider of BOX-related regulatory functions Regulatory Authority or any of its affiliates for any to the extent necessary to make such presentations, outsourced by BSE, or subcontractors for the benefit purpose other than to fulfill the Regulatory or consented to by BOX. See Section 4.1(f), 6th BOX of BOX or the BOX Market. See Section 1.1, 6th Authority’s regulatory obligations. See Section 12.1, LLC Agreement. BOX LLC Agreement. 6th BOX LLC Agreement.

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pertaining to regulatory matters of BOX Finally, the current BOX LLC 1. BOXR LLC Agreement; Changes in and the BOX Market (including, but not Agreement provides that BSE, as a party Control of BOXR limited to, disciplinary matters, trading to the agreement, and BOX Members BSE proposes to adopt the BOXR LLC data, trading practices, and audit would take such action as is necessary Agreement.202 The BOXR LLC information) contained in the books and to ensure that their officers, directors, Agreement would include provisions records of BOX would not be made and employees consent to the that reflect BOXR’s status as a wholly- available to any persons other than to applicability of certain provisions in the owned subsidiary of an SRO and that those officers, directors, employees, and BOX LLC Agreement, including the are designed to preserve the agents of BOX that have a reasonable requirement to submit to the independence of the self-regulatory need to know the contents thereof and jurisdiction of the U.S. federal courts, functions of BSE that have been that such confidential information be the Commission, and BSE. BSE delegated to BOXR.203 Also, the BOXR retained in confidence by BOX and the proposes to amend this provision such LLC Agreement would preclude BOXR officers, directors, employees, and that BOX’s officers, directors, and from making distributions to BSE using agents of BOX and not be used for any employees would also consent to the regulatory funds.204 194 commercial purposes. BSE also same provisions.199 In addition, BSE could not transfer or proposes to add a provision in the BOX The Commission believes that the assign its ownership of BOXR, unless LLC Agreement requiring BOX to revised provisions to the BOX LLC such transfer or assignment is filed with provide prompt notice to the Regulatory Agreement are intended to enhance and approved by the Commission Authority and the Regulatory Director of BSE’s ability to fulfill its self-regulatory pursuant to Section 19 of the Act.205 any amendments, modifications, obligations and assist in administering Moreover, because BOX Participants are waivers, or supplements to the BOX and complying with the requirements of BSE members, they are subject to LLC Agreement presented to the BOX the Act. Therefore, the Commission Chapter XXXIX of the BSE Rules, which 195 Board for approval. Any proposed finds that these provisions are requires that no member or person change to the BOX LLC Agreement consistent with the Act. associated with a member may own would be submitted to the BOX more than 20% of the outstanding C. BOXR Committee and if such change is voting securities of NASDAQ OMX.206 required under Section 19 of the Act As noted above, after the BSE Together, these ownership and voting and rules thereunder to be filed with, or Acquisition, BOXR would continue to restrictions are designed to minimize filed with and approved by, the be wholly-owned by BSE and would the potential that a person could Commission before such change may be become the indirect, wholly-owned improperly interfere with or attempt to effective, then such change would not subsidiary of NASDAQ OMX. BOXR is restrict the ability of the Commission or be effective until filed with, or filed currently governed by a Delegation BSE to effectively carry out their with and approved by, the Commission, 200 regulatory oversight responsibilities 196 Plan, the BOXR By-Laws, and the as the case may be. under the Act. The Commission believes The current BOX LLC Agreement applicable BSE Rules, including the BSE Constitution (to be replaced by the BSE that the proposed BOXR LLC Agreement provides that each BOX Member and its is consistent with the Act. officers, directors, agents, and By-Laws), and would continue to be so employees must submit to the governed after the BSE Acquisition and 2. Amendments to the BOXR By-Laws; jurisdiction of the federal courts, the the transfer of BSE’s interest in BOX to BOXR Board; Fair Representation MX US. Commission, and BSE for the purposes The BOXR Board would continue to of any suit, action, or proceeding In addition, BSE now proposes to be composed of at least 50% BOXR pursuant to federal securities laws, adopt a written operating agreement for Public Directors 207 and at least 20% rules, or regulations thereunder, arising BOXR (‘‘BOXR LLC Agreement’’) in (but no fewer than two directors) would out of, or relating to, BOX activities.197 which BSE would be the sole member. continue to be officers or directors of a BSE proposes to extend this provision BSE also proposes to amend the BOXR firm approved as a BOX Participant such that BOX and its officers, directors, By-Laws to reflect the BSE Acquisition. (‘‘BOXR BOX Participant Directors’’).208 agents, and employees also would As discussed above, BSE would The BOXR BOX Participant Directors submit to the jurisdiction of the U.S. continue to delegate certain self- would be selected pursuant to BOXR’s federal courts, the Commission, and the regulatory responsibilities relating to the current procedures for the nomination Regulatory Authority.198 BOX Market to BOXR, although BSE and election of BOXR BOX Participant 201 would retain ultimate responsibility. Directors by BOX Participants, as would 194 See Section 16.6, 6th BOX LLC Agreement. be the BOX Participant Director BSE also proposes that the provision would not be 199 See Section 19.6(c), 6th BOX LLC Agreement. interpreted to limit or impede the rights of the BSE proposes to expand the provisions to which 202 See BSE Governance Proposal Notice, supra Commission or the Regulatory Authority to access individuals must consent. In addition, MX and the note 3, 73 FR at 26159. and examine such confidential information or to Regulatory Authority would take such action as is 203 limit or impede the ability of any officers, directors, necessary to insure that with respect to their BOX See Section 7, BOXR LLC Agreement. employees, or agents of BOX to disclose such related activities, MX’s officers, directors and 204 See Section 15, BOXR LLC Agreement. confidential information to the Commission or the employees consent to the communication of their Pursuant to Schedule A of the proposed BOXR LLC Regulatory Authority. Id. ‘‘personal information’’ as defined under Canada’s Agreement, BOXR regulatory funds means fees, 195 See Section 19.1, 6th BOX LLC Agreement. Act Respecting the Protection of Personal fines, or penalties derived from the regulatory 196 Id. BOX would not be required to obtain the Information in the Private Sector, R.S.Q.c.P–39.1 operations of BOXR, but would not include approval of the Regulatory Authority for any (‘‘Private Sector Privacy Act’’), by MX to the revenues derived from listing fees, market data amendment to the revised BOX LLC Agreement Commission and the Regulatory Authority and revenues, transaction revenues, or any other aspect pursuant to which the BOX Market would cease to agree to waive the protection of such ‘‘personal of the commercial operations of BOXR, even if a be a facility of BSE, provided that such amendment information’’ that is provided by the Private Sector portion of such revenues are used to pay costs would be filed with, or filed with and approved by, Privacy Act. associated with the regulatory operations of BOXR. the Commission, as the case may be, before such 200 See supra note 126 and accompanying text. 205 See Section 20, BOXR LLC Agreement. amendment may be effective. See also BOXR Order, supra note 124. No changes 206 See supra note 99 and accompanying text. 197 As a BOX Member, MX US would be subject to the Delegation Plan are proposed. 207 See supra notes 175–176 and accompanying to this provision. 201 See supra notes 125–127 and accompanying text. 198 See Section 19.6(b), 6th BOX LLC Agreement. text. 208 See proposed Section 4, BOXR By-Laws.

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candidate for the BSE Board.209 The the BSE Board an amendment to the appeal such decision to the BOXR Board successful candidates for BOXR BSE By-Laws to make it clear that the and subsequently to the BSE Board. Any Participant Director positions would be candidate nominated by the BOXR initial decision that is rendered by the submitted to BSE, as the sole member of Nominating Committee to serve as the BOXR Hearing Committee regarding the BOXR, for election.210 The successful BOX Participant Director on the BSE affiliated BOX Participant would candidate for the BOX Participant Board would also be nominated by the instead constitute final disciplinary Director position on the BSE Board BSE Nominating Committee and elected action of BSE under Rule 19d–1(c)(1) would be submitted to NASDAQ OMX, by NASDAQ OMX, unless such under the Act.219 This proposed change as the sole shareholder of BSE, for nominee is not otherwise eligible for is consistent with the process for election.211 In connection with this service pursuant to BSE By-Laws appeals by affiliated members of Nasdaq process, BSE proposes, in the BSE Section 4.3.214 The Commission under Nasdaq’s rules, which previously Governance Proposal, that the BSE By- believes that the proposed petition was approved by the Commission.220 Laws include a provision that requires process, coupled with the right to vote The Commission believes that this BSE’s Nominating Committee to give for their representatives, should help to proposed change is consistent with the due consideration to the ensure that BOX Participants have the Act, including Section 6(b)(7) recommendation of the BOXR opportunity to be involved in the thereunder,221 which requires that the Nominating Committee in nominating selection of their representatives for the rules of an exchange must provide a fair the BOX Participant Director to the BSE BOXR Board and the BSE Board. The procedure for disciplining members. Board.212 Commission notes that this proposed Specifically, this proposal, which Although the BSE By-Laws require process is consistent with the current specifies that the BSE Board and the only due consideration of the process for electing BOX Participant BOXR Board may not be involved in recommendation made by the BSE Directors previously approved by the review of disciplinary actions involving Nominating Committee, BSE states in its Commission.215 affiliated BOX Participants, would proposed rule change that, in The Commission finds that the mitigate a conflict of interest that could nominating the BOX Participant proposed changes are consistent with occur as a result of Nasdaq OMX’s Director to the BSE Board, the BSE Sections 6(b)(3) of the Act,216 which ownership of BSE. Nominating Committee would adopt the requires BSE to assure a fair D. BSX recommendation of the BOXR representation of its members in the Nominating Committee, and NASDAQ selection of its directors and 1. NASDAQ OMX Ownership of BSX OMX, as the sole stockholder of BSE, administration of its affairs because the In addition to the BSE Acquisition, 213 would elect such candidate. To proposal is designed to ensure that BOX NASDAQ OMX would acquire all of the reconcile the BSE By-Laws and this Participants continue to participate in outstanding limited liability company representation, BSE states that the selection of their representatives to interests in BSX held by investors other immediately following the closing of the the BOXR and BSE Boards. than BSE.222 As a result, NASDAQ OMX BSE Acquisition, BSE would propose to 3. Disciplining of Affiliated Members would own 46.79% of BSX directly and would own indirectly through BSE the 209 In the BSE Governance Proposal, BSE See current Section 14(e), BOXR By-Laws, and remaining 53.21% of BSX. Following proposed Section 14(e), proposed BOXR By-Laws. proposes to amend the BOXR By-Laws the BSE Acquisition, BSE would remain See also BOXR Order, supra note 124, 69 FR 2768, to provide that neither the BSE Board at notes 21–26 and 52–57, and accompanying text, the SRO and would provide the nor the BOXR Board would consider and discussion supra at note 60 accompanying text. regulatory framework for BSX,223 and appeals of disciplinary actions The BOXR Nominating Committee would continue BSE expects to operate in the future a to be responsible for nominating the BOXR BOX involving BOX Participants that are facility for the trading of cash equity Participant Director candidates for the two affiliates of NASDAQ OMX.217 positions on the BOXR Board and the BOX securities through BSX. BSE would not Currently, any BOX Participant Participant Director candidate for the one position resume trading of cash equity securities ‘‘adjudged guilty in any disciplinary on the BSE Board. See supra note 59 and until it has filed a proposed rule change accompanying text. In addition, BOX Participants proceeding’’ by the BOXR Hearing under Section 19(b) of the Act would continue to be able to submit additional Committee 218 or any panel thereof may nominees for each of these positions and vote on proposing amendments to BSE Rules, and elect from the slate of nominees the candidates 214 In Amendment No. 1 to the BSE Governance to be elected to those positions. See Section 14(e), of the BOXR Board and must include one BOX BOXR By-Laws. Proposal, BSE states that, after such proposal to the BSE Board: ‘‘[BSE] shall promptly file the Participant, but may not include members of the 210 See proposed Section 14(e)(iii), BOXR By- BOXR Board or BSE Board. The BOXR Hearing Laws. amendment as a proposed rule change for approval by the Commission. This clarifying change could Committee has exclusive jurisdiction to conduct Pursuant to proposed Section 14(e)(iii)(E) of the not be included in this filing because Article XX of disciplinary proceedings brought by BOXR against BOXR By-Laws, the two nominees for the BOXR [BSE’s] current Constitution, which is being any BOX Participant for violation of the Act, the Participant Director positions receiving the highest replaced by the proposed [BSE] By-Laws, provides rules and regulations thereunder, the BSE By-Laws, number of votes would be declared elected thereto, that [BSE’s] members must approve amendments to BOX Rules, the BOXR LLC Agreement or By-Laws, and the one nominee for the BOX Participant the [BSE] Constitution. The [BSE] members voted or the interpretations and stated policies of either Director position on the BSE Board would be to approve the [BSE] By-Laws as submitted in this the BSE or BOXR Boards. Id. The BOX Committee recommended by the BOXR Nominating Committee filing on December 4, 2007, prior to the submission would hear appeals from regulatory decisions of the for election thereto. of this filing to the Commission, and it would have BOXR Board. See supra note 167 and Proposed Section 22 of the BOXR LLC been impracticable and unduly expensive to seek a accompanying text. Agreement, which otherwise generally provides second member vote for approval of this clarifying 219 17 CFR 240.19d–1(c)(1). that the provisions of the BOXR LLC Agreement change. Following adoption of the new [BSE] By- 220 See Securities Exchange Act Release No. would not be deemed to create any right in any Laws, the [BSE] Board will have authority to 54170, supra note 113, 71 FR at 42151. person not a party to the BOXR LLC Agreement, approve [BSE] By-Law amendments.’’ See 221 15 U.S.C. 78f(b)(7). would make clear that the limitations of Section 22 Amendment No. 1 to the BSE Governance Proposal, 222 BSX was formed in 2004 as a joint venture would not apply to BOX Participants to the extent supra note 4. between BSE and several investors to operate an provided in Section 14 of the BOXR By-Laws. 215 See BOXR Order, supra note 124, 69 FR at electronic trading facility, BeX, for the trading of 211 Id. 2771. cash equity securities. BeX ceased its operations in 212 See proposed Section 4.14, BSE By-Laws. 216 15 U.S.C. 78f(b)(3). September 2007. See BSE Governance Proposal 213 See BSE Governance Proposal Notice, supra 217 See proposed Section 14(f)(i), BOXR By-laws. Notice, supra note 3, 73 FR at 26166. note 3, 73 FR at 26159, n.16, and accompanying 218 See BOXR By-Laws, Section 14(f).The ‘‘BOXR 223 See proposed Section 3.2, BSX Operating text. Hearing Committee’’ is appointed by the Chairman Agreement.

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and the Commission has approved the a. Transfer, Ownership and Voting directly and indirectly, by NASDAQ new BSE Rules.224 Restrictions OMX, this provision is no longer The current BSX Operating The amended BSX Operating relevant. In addition, BSE proposes to Agreement requires that any transfer Agreement would continue to state that expand those provisions of the BSX that results in the acquisition and BSX must provide the Commission with Operating Agreement that currently holding by any person, alone or together written notice ten days prior to the prohibit BSX Participants and their with any affiliate of such person, of an closing date of any acquisition that affiliates from owning or voting more aggregate percentage interest level that results in a BSX Member’s percentage than 20% of BSX to include all BSE meets or crosses the threshold of 20% ownership interest in BSX, alone or members and their affiliates. To make be subject to a rule filing pursuant to with any affiliate, meeting or crossing the BSX Operating Agreement Section 19(b)(1) of the Act.225 In the 5%, 10%, or 15% thresholds.227 In consistent with the exception from BSE accordance with this requirement, BSE addition, the amended BSX Operating Rules to permit NES and NOS to 232 proposes in the BSE Governance Agreement would continue to provide become affiliates of BSE, the Proposal that the Commission approve that any transfer of BSX units that proposed amendment to the BSX the transfer of ownership interests in results in the acquisition and holding by Operating Agreement would state that BSX to NASDAQ OMX. any person, alone or together with an these ownership and voting restrictions The Commission notes that following affiliate, of an interest that meets or do not limit NASDAQ OMX’s or BSE’s 233 the transfer of ownership interests in crosses the 20% threshold or any ownership interests in BSX. BSX to NASDAQ OMX, BSE and successive 5% threshold (i.e., 25%, The Commission believes that the NASDAQ OMX would be the sole 30%, etc.) would trigger the requirement proposed changes to provisions in the members of BSX. In accordance with to file an amendment to the BSX BSX Operating Agreement on transfer, proposed Section 18.1 of the BSX Operating Agreement with the ownership, and voting restrictions Operating Agreement, any amendment Commission under Section 19(b) of the would not affect the ability of BSE to to the BSX Operating Agreement, Act.228 carry out its self-regulatory including to permit the admission of Further, the amended BSX Operating responsibilities or the ability of the additional or substitute members, would Agreement would continue to provide Commission to fulfill its responsibilities have to be submitted to the BSE Board that any person that acquires a under the Act. In particular, the for review, and, if any such amendment controlling interest (i.e., an interest of proposal would not change the current would be required under Section 19 of 25% or greater) in a BSX Member that percentage thresholds in the transfer, the Act and the rules promulgated holds 20% or more of BSX units would ownership, and voting provisions. The thereunder, to be filed with, or filed be required to become a party to the Commission finds that the proposed with and approved by, the Commission BSX Operating Agreement and abide by revisions to the BSX Operating before such amendment may be its terms.229 The addition of any such Agreement discussed above are effective, then such amendment would indirect controlling party would also consistent with the Act. not be effective until filed with, or filed require a filing with the Commission b. BSE’s Authority Over BSX pursuant to Section 19(b) of the Act.230 with and approved by the Although NASDAQ OMX would own 226 In the BSE Governance Proposal, BSE Commission. As the operator of a directly 46.79% of BSX, BSE would be proposes to amend the BSX Operating facility of BSE, BSX must continue to be entitled to designate all of the directors Agreement to remove provisions that operated in a manner consistent with of the BSX board of directors (‘‘BSX allow BSX Members to exercise rights of the regulatory and oversight Board’’).234 In addition, in the BSE first refusal in the event that one responsibilities of BSE and with the Act Governance Proposal, BSE proposes to member proposes to transfer its and rules and regulations thereunder. delete a provision in the BSX Operating ownership interests in BSX to another The Commission believes that, because Agreement that currently requires a member or BSX proposes to issue BSE would remain the SRO and would super-majority of BSX directors’ votes, additional units of ownership.231 provide the regulatory framework for including the affirmative votes of all Because BSX would be 100% owned, BSX, the transfer of ownership interests directors designated by BSE, before BSX in BSX to NASDAQ OMX would not 227 could take certain significant actions, impair the continued ability of BSE or See proposed Section 8.2(d), BSX Operating such as entering into a new line of the Commission to discharge their Agreement. 228 See supra note 225. In addition, the amended business or replacing BSE as BSX’s respective regulatory and oversight BSX Operating Agreement would provide that any regulatory service provider.235 Instead, responsibilities. The Commission transfer of BSX units that would reduce BSE’s BSE would have the authority to veto or therefore finds that the transfer of ownership in BSX below the 20% threshold would mandate actions that relate to regulatory require a proposed rule change under Section 19(b) ownership interests in BSX to NASDAQ 236 of the Act. Moreover, Commission approval would requirements. Specifically, the OMX is consistent with the Act. be required to permit any person, alone or together proposal sets forth that BSE’s 2. BSX Operating Agreement with any affiliate, to control 20% of the Total Votes. affirmative vote would be required with See current Section 8.4(e), BSX Operating respect to any action, transaction, or In conjunction with the BSE Agreement, and proposed Section 8.2(e), BSX Operating Agreement. The Commission notes that aspect of an action or transaction that Acquisition, BSE also proposes in the proposed Section 18.1 of the BSX Operating BSE Governance Proposal to amend the Agreement requires the submission of any proposed 232 See supra notes 117–123 and accompanying BSX Operating Agreement to reflect the amendment thereto to the BSE Board for review. If text. sole ownership of BSX by BSE and such amendment is required under Section 19 of 233 See proposed Sections 8.3 and 8.4, BSX NASDAQ OMX. the Act to be filed with, or filed with and approved Operating Agreement. by, the Commission, it could not take effect until 234 See proposed Section 4.1(b), BSX Operating filed with, or filed with and approved by the Agreement. In addition, BSE proposes to reduce the 224 See BSE Governance Proposal Notice, supra Commission. number of BSX directors from six to five. See note 3, 73 FR at 26167. 229 See proposed Section 8.2(f), BSX Operating proposed Section 4.1(a), BSX Operating Agreement. 225 See current Section 18.1, BSX Operating Agreement. 235 See current Section 4.4, BSX Operating Agreement. 230 Id. Agreement. 226 See proposed Section 8.2(e), BSX Operating 231 See current Sections 8.2 and 8.3, BSX 236 See proposed Section 4.4, BSX Operating Agreement. Operating Agreement. Agreement.

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BSE, in its sole discretion, determines is trading of cash equity securities ability to fulfill its self-regulatory necessary or appropriate for, or (including disciplinary matters, trading obligations and assist in administering interferes with, the performance or data, trading practices and audit and complying with the requirements of fulfillment of BSE’s regulatory information) in the books and records of the Act. Moreover, BSE is required to functions, its responsibilities under the BSX would not be made available to any enforce compliance with these Act or as specifically required by the persons. The proposal would allow such provisions because they are ‘‘rules of the Commission.237 In addition, BSE would information to be made available to exchange’’ within the meaning of have the sole and exclusive right to officers, directors, employees and agents Section 3(a)(27) of the Act.243 A failure direct that any required, necessary, or of BSX who have a reasonable need to on the part of BSE to enforce its rules appropriate act be undertaken without know the contents thereof. However, could result in a Commission regard to the vote, act, or failure to vote such confidential information would be enforcement action pursuant to Section or act by any other party in any required to be retained in confidence by 19(h)(1) of the Act.244 238 BSX and its officers, directors, capacity. E. BSECC Further, the amended BSX Operating employees and agents and not be used Agreement would state that any for any commercial purposes.241 The As a result of the BSE Acquisition, amendment thereto must be submitted Commission believes that the revised BSECC, BSE’s wholly-owned subsidiary to the BSE Board for review and, if such confidentiality provisions would not and a registered clearing agency, would amendment is required under Section impair BSE’s self-regulatory obligations become a wholly-owned indirect 19(b) of the Act and the rules with respect to BSX and finds that this subsidiary of NASDAQ OMX. As noted thereunder to be filed with, or filed with provision is consistent with the Act. above, BSECC ceased processing trades in 2007. In connection with the and approved by the Commission, then d. Jurisdiction such amendment would not be effective transaction, BSECC proposes, in the until filed with, or filed with and The current BSX Operating BSECC Governance Proposal, to amend approved by the Commission, as the Agreement provides that BSX and each its Articles of Organization (‘‘BSECC case may be.239 BSX Member as well as the officers, Articles of Organization’’). BSECC also The Commission believes that these directors, agents, and employees of BSX proposes to update the BSECC Articles proposals are designed to preserve and each BSX Member must submit to of Organization and By-Laws (‘‘BSECC BSE’s regulatory authority over BSX, the jurisdiction of the federal courts, the By-Laws’’) in certain other respects, and any proposed facility for the trading Commission, and BSE for the purposes including, according to BSE, to reflect of cash equity securities that BSX may of any suit, action, or proceeding modern corporate practice for operate, and are consistent with the Act pursuant to the U.S. federal securities Massachusetts corporations. In addition, because they would grant BSE the laws or the rules or regulations BSECC has filed the NASDAQ OMX thereunder, arising out of, or relating to Certificate and By-Laws as proposed ability to direct BSX to perform any 245 required, necessary, or appropriate act BSX’s activities. rules. In the BSE Governance Proposal, BSE In connection with the BSE and would allow BSE to veto or proposes to amend Section 18.6(b) of Acquisition, BSECC proposes to amend mandate actions that relate to regulatory the BSX Operating Agreement to: (1) the BSECC Articles of Organization such requirements. The Commission notes clarify that the jurisdiction of the U.S. that the total number of shares of each that BSE could not operate a facility for federal courts, the Commission, and class of stock that BSECC would be the trading of cash equity securities BSE over BSX, its members, and their authorized to issue is 150 shares of until it has filed under Section 19(b) of respective officers, directors, agents, and common stock. This amendment would the Act, and the Commission has employees is exclusive; (2) require BSX reflect a reduction in the total approved, the new BSE Rules. In and its members and their respective authorized share capital of BSECC from particular, the Commission believes officers, directors, agents, and 1000 shares of common stock to the 150 these changes are consistent with 240 employees to agree not to assert lack of shares of common stock currently held Section 6(b)(1) of the Act, which personal jurisdiction by the U.S. federal by BSE. Thus, following the requires, among other things, that the courts or BSE; 242 and (3) include a amendment, all of the authorized shares national securities exchange be so provision regarding the waiver of the of common stock of BSECC would be organized and have the capacity to carry defense or application of any foreign outstanding and would be owned by out the purposes of the Act, and to secrecy or blocking statutes by BSX and BSE.246 comply and enforce compliance by its its members and their respective BSECC also proposes to amend the members and persons associated with officers, directors, agents, and BSECC Articles of Organization to its members, with the provisions of the employees, with respect to BSX’s provide that BSE may not transfer or Act, the rules and regulations activities or their participation therein. assign any shares of stock of BSECC thereunder, and the rules of the The Commission believes that these unless such transfer or assignment has exchange. changes, in conjunction with other been filed with and approved by the c. Confidentiality Provisions provisions of the BSX Operating Commission under Section 19 of the Agreement that would remain Act.247 These proposed changes are In the BSE Governance Proposal, BSE unchanged, would enhance BSE’s designed to ensure that, absent proposes to amend the BSX Operating Commission approval, BSECC would Agreement to provide that all 241 See proposed Section 16.7, BSX Operating remain a wholly-owned subsidiary of confidential information pertaining to Agreement. BSE also proposes that the provision BSE. Further, BSECC proposes to amend the self-regulatory function of BSE or would not be interpreted to limit or impede the ability of any officers, directors, employees or the business of BSE relating to the 243 agents of the Company to disclose confidential 15 U.S.C. 78c(a)(27). information to the Commission or the BSE. 244 15 U.S.C. 78s(h)(1). 237 Id. 242 Section 18.6(b) of the BSX Operating 245 See supra note 10 and accompanying text. 238 Id. Agreement currently requires BSX and its members 246 See proposed BSECC Articles of Organization, 239 See proposed Section 18.1, BSX Operating and their respective officers, directors, agents, and Article III. Agreement. employees, to agree not to assert lack of personal 247 See proposed BSECC Articles of Organization, 240 15 U.S.C. 78f(b)(1). jurisdiction by the Commission. Article V.

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the BSECC By-Laws to expressly state action by the BSECC Board and the laws, and facilitate the ability of each that the BSECC By-Laws may be stockholders to be taken without a SRO subsidiary and the Commission to amended only upon approval by the meeting.255 fulfill their regulatory and oversight Commission and in accordance with the The Commission finds that the obligations under the Act.258 rules of BSECC.248 proposed changes to the BSECC Articles BSECC also proposes several other of Organization and BSECC By-Laws are Additionally, the Commission notes changes to the BSECC Articles of consistent with the requirements of the that the NASDAQ OMX By-Laws would Organization and BSECC By-Laws, Act and the rules and regulations provide that the NASDAQ OMX Board, which BSECC states are primarily for thereunder and particularly with the as well as its officers, employees, and the purpose of updating those requirements of Section 17A(b)(3)(C) of agents, may not take any action that documents in accordance with modern the Act.256 The Commission notes that would interfere with the decisions of corporate practice for Massachusetts the proposed rule change does not the board of directors of any SRO corporations.249 Specifically, BSECC amend BSECC’s rules or procedures subsidiary relating to its regulatory proposes to adopt what it terms with respect to the clearance and functions or the market structures or the ‘‘modern provisions’’ stipulating the settlement of securities transactions or clearing systems which it regulates or conditions under which BSECC may the safeguarding of securities and funds that would interfere with the ability of indemnify its officers and directors and which are in BSECC’s control or for any SRO subsidiary to carry out its the scope of that indemnification. Such which it is responsible. Section responsibilities under the Act.259 Also, provisions provide that directors of 17A(b)(3)(C) of the Act requires that a the NASDAQ OMX By-Laws would BSECC are not personally liable to it for clearing agency’s rules assure the fair specifically require the NASDAQ OMX breaches of fiduciary duty, except for representation of its shareholders (or Board to consider BSECC’s regulatory breaches involving (1) A breach of the members) and participants in the obligations as a clearing agency when duty of loyalty, (2) acts or omissions not selection of its directors and evaluating any issue,260 including in good faith or that involve intentional administration of its affairs. BSECC granting any exemption from the misconduct or knowing violation of law, would remain a wholly-owned NASDAQ OMX voting limitations (3) distributions of assets that would subsidiary of BSE following the discussed above.261 The Commission render BSECC insolvent, or (4) any acquisition by NASDAQ OMX and the transaction from which the director BSECC By-Laws relating to the believes that the NASDAQ OMX By- derived an improper personal benefit.250 selection, composition, powers, and Laws, as amended to accommodate the BSECC also proposes to amend the duties of the BSECC Board, committees, BSE Acquisition, are designed to BSECC By-Laws to clarify the time and officers, except as discussed above, facilitate BSECC’s ability to fulfill its periods allowed or required for notice to would remain unchanged. Accordingly, self-regulatory obligations and, stockholders of meetings, the the Commission finds that BSECC’s accordingly, are consistent with Section permissible duration of stockholder rules would continue to assure the fair 17A of the Act. proxies, and the setting of a record date, representation of its shareholders and which BSECC states are consistent with participants in the selection of BSECC’s 258 See Amendment No. 1 to the BSECC Massachusetts law.251 BSECC further directors and the administration of Governance Proposal, supra note 10. 259 proposes to remove a provision from its BSECC’s affairs as required by Section See proposed Section 12.1(a), NASDAQ OMX By-Laws. By-Laws allowing close of the transfer 17A(b)(3)(C). 260 The NASDAQ OMX Board would be required books of BSECC, which BSECC states is Furthermore, as discussed above with to consider, to the extent deemed relevant, when no longer consistent with Massachusetts respect to BSE, BSECC also has filed the evaluating any issue, whether such would promote law.252 Certificate and By-Laws of NASDAQ the prompt and accurate clearance and settlement In addition, BSECC states that its OMX as proposed rules.257 As noted of securities transactions (and to the extent applicable, derivative agreements, contracts and proposed changes would allow above, although NASDAQ OMX is not transactions), would assure the safeguarding of stockholders, as well as directors, to fill itself an SRO, its activities with respect securities and funds in the custody or control of the vacancies on the BSECC Board of to the operation of BSECC must be SRO subsidiaries that are clearing agencies or Directors (‘‘BSECC Board’’) in consistent with, and must not interfere securities and funds for which they are responsible, 253 would foster cooperation and coordination with accordance with Massachusetts law with, the self-regulatory obligations of persons engaged in the clearance and settlement of and to clarify that directors of BSECC, BSECC. NASDAQ OMX’s By-Laws securities transactions, and would remove if such directors also serve on the BSE would make applicable to all of impediments to and perfect the mechanism of a Board, must tender resignations from NASDAQ OMX’s SRO subsidiaries, national system for the prompt and accurate clearance and settlement of securities transactions. the BSECC Board if they cease to be BSE including BSECC (after the BSE See proposed Section 12.7, NASDAQ OMX By- 254 Directors. The proposed changes also Acquisition), certain provisions of Laws. would clarify the requirements for NASDAQ OMX’s Certificate and 261 Specifically, the NASDAQ OMX Board would NASDAQ OMX’s By-Laws that are be required to determine that granting any such 248 See proposed BSECC By-Laws Article VI.7. designed to maintain the independence exemption would promote the prompt and accurate BSECC Rule XII requires notice to clearing members clearance and settlement of securities transactions of each of its SRO subsidiaries’ self- (and to the extent applicable, derivative agreements, of amendments to the BSECC By-Laws. regulatory functions, enable each SRO 249 See BSECC Governance Proposal Notice, supra contracts and transactions), would assure the note 9, 73 FR at 27584. subsidiary to operate in a manner that safeguarding of securities and funds in the custody or control of the SRO subsidiaries that are clearing 250 See proposed BSECC By-Laws Article VI. complies with the federal securities agencies or securities and funds for which they are 251 See proposed BSECC By-Laws Article I.4, responsible, would foster cooperation and Article I.6, and Article V.3. 255 BSECC also proposes changes to eliminate the coordination with persons engaged in the clearance 252 See BSECC By-Laws Article V.3. BSECC offices of ‘‘clerk’’ and ‘‘vice-chairman’’ from BSECC and settlement of securities transactions, and would represents that this change would not limit the and to delete references to those offices from the remove impediments to and perfect the mechanism effectiveness of the change to the Articles of By-Laws and to establish that the officers of BSECC of a national system for the prompt and accurate Organization requiring Commission approval of are all appointed by and subject to removal by the clearance and settlement of securities transactions. transfers of BSECC’s stock. See BSECC Governance BSECC Board. See proposed BSECC By-Laws See proposed Section 12.5, NASDAQ OMX By- Proposal Notice, supra note 9, 73 FR 27583, n.5. Article III.1 and III.4. Laws; and Article Fourth.C.6, NASDAQ OMX 253 See proposed BSECC By-Laws Article II.4. 256 15 U.S.C. 78q–1(b)(3)(C). Certificate. See also notes 100–104 and 254 See proposed BSECC By-Laws Article II.7. 257 See supra note 38. accompanying text.

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III. Solicitation of Comments identifying information from changes to the NASDAQ OMX By-Laws 267 Interested persons are invited to submissions. You should submit only in either instance. As discussed more fully above in submit written data, views, and information that you wish to make Sections II.A.1. and II.A.6., and in the arguments concerning: (1) Amendment available publicly. All submissions NASDAQ OMX By-Law Proposal No. 1 to File No. SR–BSE–2008–23 (the should refer to Amendment No. 1 to File Notice, certain provisions of NASDAQ BSE Governance Proposal), including No. SR–BSE–2008–23, Amendment No. OMX’s Certificate and By-Laws are whether Amendment No. 1 is consistent 1 to File No. SR–BSECC–2008–01, or designed to facilitate the ability of with the Act; (2) Amendment No. 1 to Amendment No. 1 to File No. SR–BSE– NASDAQ OMX’s SRO subsidiaries, File No. SR–BSECC–2008–01 (the 2008–25, as applicable, and should be including BSE and BSECC, to maintain BSECC Governance Proposal), including submitted on or before September 2, the independence of each of the SRO whether Amendment No. 1 is consistent 2008. subsidiaries’ self-regulatory function, with the Act; and (3) Amendment No. IV. Accelerated Approval of the BSE enable each SRO subsidiary to operate 1 to File No. SR–BSE–2008–25 (the BOX Governance Proposal, as Modified by in a manner that complies with the Transfer Proposal), including whether Amendment No. 1, the BSECC federal securities laws, and facilitate the Amendment No. 1 is consistent with the Governance Proposal, as Modified by ability of each SRO subsidiary and the Act. Comments may be submitted by Amendment No. 1, and the BOX Commission to fulfill their regulatory any of the following methods: Transfer Proposal, as Modified by and oversight obligations under the Electronic Comments Amendment No. 1 Act.268 As stated above, the Commission finds that such provisions are consistent • Use the Commission’s Internet The Commission finds good cause for with the Act.269 Notably, the NASDAQ comment form (http://www.sec.gov/ approving: (1) The BSE Governance OMX Certificate and By-Laws are rules rules/sro.shtml); or Proposal, as modified by Amendment of Nasdaq that have been approved • Send an e-mail to rule- No. 1, (2) the BSECC Governance previously by the Commission, as noted [email protected]. Please include File Proposal, as modified by Amendment above, and the changes to the NASDAQ Number SR–BSE–2008–23, SR–BSECC– No. 1, and (3) the BOX Transfer OMX By-Laws were published for 2008–01, or SR–BSE–2008–25 as Proposal, as modified by Amendment notice and comment, as noted above, applicable, on the subject line. No. 1, prior to the thirtieth day after the and the Commission did not receive any date of publication of notice of filing of Paper Comments comments thereon. such amendments in the Federal Additionally, in Amendment No. 1 to • Send paper comments in triplicate 262 Register. the BSE Governance Proposal, BSE to Secretary, Securities and Exchange In Amendment No. 1 to the BSE proposes to amend Section 8.2(f) of the Commission, 100 F Street, NE., Governance Proposal and Amendment BSX Operating Agreement. Section Washington, DC 20549–1090. No. 1 to the BSECC Governance 8.2(f) currently requires that any person All submissions should refer to Proposal, BSE and BSECC each propose who, alone or together with any affiliate Amendment No. 1 to File No. SR–BSE– to adopt as rules the NASDAQ OMX of such person, has 25 percent or greater 2008–23, Amendment No. 1 to File No. Certificate and NASDAQ OMX By-Laws. interest in a BSX Member who, alone or SR–BSECC–2008–01, or Amendment The NASDAQ OMX Certificate, as filed together with any affiliate of such BSX No. 1 to File No. SR–BSE–2008–25, as by BSE and BSECC, was previously Member, holds 20 percent or greater applicable. This file number should be approved by the Commission as rules of interest in BSX become party to, and included on the subject line if e-mail is Nasdaq.263 The NASDAQ OMX By-Laws abide by all the provisions of, the BSX used. To help the Commission process were similarly approved previously by Operating Agreement. In Amendment and review your comments more the Commission.264 As filed by BSE and No. 1, BSE proposes to clarify that for efficiently, please use only one method. BSECC, the NASDAQ OMX By-Laws the Section 8.2(f) requirement to apply, The Commission will post all comments include certain new terminology to a person, alone or together with any on the Commission’s Internet Web site reflect the acquisition of BSE and affiliate of such person, must have (http://www.sec.gov/rules/sro.shtml). BSECC by NASDAQ OMX. These direct or indirect ownership of 25 Copies of the submission, all subsequent changes were filed by Nasdaq as a percent or more of the total voting amendments, all written statements proposed rule change, were published power of all equity securities of a BSX with respect to the proposed rule for comment, and were approved by the Member, other than voting rights solely change that are filed with the Commission.265 The changes were also with respect to matters affecting the Commission, and all written filed by Phlx, and were approved by the rights, preferences, or privileges of a communications relating to the Commission, in connection with the particular class of equity securities. proposed rule change between the Phlx Acquisition.266 The Commission Notwithstanding the foregoing, BSE Commission and any person, other than received no comments on the proposed proposes to clarify that a person with those that may be withheld from the zero percent direct or indirect interest in public in accordance with the 262 15 U.S.C. 78s(b)(2). Pursuant to Section a BSX Member would not be required to provisions of 5 U.S.C. 552, will be 19(b)(2) of the Act, the Commission may not available for inspection and copying in approve any proposed rule change, or amendment 267 In addition, Amendment No. 1 to the BSE the Commission’s Public Reference thereto, prior to the thirtieth day after the date of Governance Proposal and Amendment No. 1 to the Room, 100 F Street, NE., Washington, publication of the notice thereof, unless the BSECC Governance Proposal incorporate a change Commission finds good cause for so doing. to the Nasdaq OMX By-Laws to clarify the DC 20549, on official business days 263 See Nasdaq Exchange Approval Order, supra definition of Non-Industry Director with respect to between the hours of 10 a.m. and 3 p.m. note 63, 73 FR at 3552–3553. issuer representation on the Nasdaq OMX Board of Copies of such filing also will be 264 See NASDAQ OMX By-Laws Proposal Notice, Directors that recently was approved by the available for inspection and copying at supra note 18, 73 FR 26182, and NASDAQ OMX Commission. See Securities Exchange Act Release By-Laws Approval Order, supra note 31, 73 FR No. 58201 (July 21, 2008), 73 FR 43812 (July 28, the principal office of BSE or BSECC, as 42850. 2008) (SR–NASDAQ–2008–043). applicable. All comments received will 265 Id. 268 See supra notes 38–47, 100–104 and be posted without change; the 266 See Securities Exchange Act Release No. accompanying text. Commission does not edit personal 58179, supra note 27. 269 See id.

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become party to the BSX Operating interest in a BOX Member, could not publishing this notice to solicit Agreement pursuant to the revised interfere with or restrict the comments on the proposed rule change Section 8.2(f). Commission’s or the BSE’s ability to from interested persons. The Commission finds these changes carry out its regulatory responsibilities. I. Self-Regulatory Organization’s to the BSX Operating Agreement For the reasons described above, the Statement of the Terms of the Substance consistent with the Act. Section 8.2(f) of Commission finds good cause for of the Proposed Rule Change the BSX Operating Agreement is approving each of the following on an designed to minimize the potential that accelerated basis, pursuant to Section CBOE proposes to amend its Fees a person could improperly interfere 19(b)(2) of the Act: (1) The BSE Schedule relating to market-maker with or restrict the ability of the Governance Proposal, as modified by transaction fees. The text of the Commission and BSE to effectively Amendment No. 1; (2) the BSECC proposed rule change is available on the carry out their regulatory oversight Governance Proposal, as modified by Exchange’s Web site (http:// responsibilities under the Act. The Amendment No. 1; and (3) the BOX www.cboe.org/legal), at the Exchange’s clarifications proposed by BSE do not transfer Proposal, as modified by Office of the Secretary and at the hinder the intent of Section 8.2(f), Amendment No. 1. Commission. because the Commission believes that a person without voting power in the V. Conclusion II. Self-Regulatory Organization’s Statement of the Purpose of, and equity securities of a BSX Member, or a It is therefore ordered, pursuant to Statutory Basis for, the Proposed Rule person with no direct or indirect Section 19(b)(2) of the Act,270 that the Change interest in a BSX Member, could not BSE Interim Certificate Proposal (SR– interfere with or restrict the BSE–2008–02), as modified by In its filing with the Commission, Commission’s or the BSE’s ability to Amendment No. 1, be, and hereby is, CBOE included statements concerning carry out its regulatory responsibilities. approved; that the BSE Governance the purpose of and basis for the In Amendment No. 1 to the BOX Proposal (SR–BSE–2008–23), as proposed rule change and discussed any Transfer Proposal, BSE proposes to modified by Amendment No.1, be, and comments it received on the proposed amend Section 8.4(g) of the BOX LLC hereby is, approved on an accelerated rule change. The text of these statements Agreement. Section 8.4(g) currently basis; that the BOX Transfer Proposal may be examined at the places specified requires that any person who, alone or (SR–BSE–2008–25), as modified by in Item IV below. CBOE has prepared together with any affiliate of such Amendment No. 1, be, and hereby is, summaries, set forth in sections (A), (B), person, has 25 percent or greater interest approved on an accelerated basis; and and (C) below, of the most significant in a BOX Member who, alone or that the BSECC Governance Proposal aspects of such statements. together with any affiliate of such BOX (SR–BSECC–2008–01), as modified by Member, holds 20 percent or greater A. Self-Regulatory Organization’s Amendment No.1 be, and hereby is Statement of the Purpose of, and interest in BOX become party to, and approved on an accelerated basis. abide by all the provisions of, the BOX Statutory Basis for, the Proposed Rule LLC Agreement. In Amendment No. 1, By the Commission. Change BSE proposes to clarify that for the Florence E. Harmon, 1. Purpose Section 8.4(g) requirement to apply, a Acting Secretary. person, alone or together with any [FR Doc. E8–18577 Filed 8–11–08; 8:45 am] Under the Exchange’s ‘‘Liquidity Provider Sliding Scale’’ program, the affiliate of such person, must have BILLING CODE 8010–01–P direct or indirect ownership of 25 Exchange reduces Liquidity Provider percent or more of the total voting (CBOE Market-Maker, DPM, e-DPM and power of all equity securities of a BOX SECURITIES AND EXCHANGE LMM) per contract transaction fees Member, other than voting rights solely COMMISSION based on the number of contracts a with respect to matters affecting the Liquidity Provider trades in a month. [Release No. 34–58321; File No. SR–CBOE– The sliding scale applies to Liquidity rights, preferences, or privileges of a 2008–78] particular class of equity securities. Provider transaction fees in all 2 Notwithstanding the foregoing, BSE products. Self-Regulatory Organizations; A Liquidity Provider’s standard $.20 proposes to clarify that a person with Chicago Board Options Exchange, zero percent direct or indirect interest in per contract transaction fee is reduced if Incorporated; Notice of Filing and the Liquidity Provider reaches the a BOX Member would not be required Immediate Effectiveness of Proposed to become party to the BOX LLC volume thresholds set forth in the Rule Change Relating to Market-Maker sliding scale in a month. As a Liquidity Agreement pursuant to the revised Transaction Fees Section 8.4(g). Provider’s monthly volume increases, The Commission finds these changes August 6, 2008. its per contract transaction fee to the BOX LLC Agreement consistent Pursuant to Section 19(b)(1) of the decreases. The first 75,000 contracts with the Act. Section 8.4(g) of the BOX Securities Exchange Act of 1934 1, traded in a month (first tier) are assessed LLC Agreement is designed to minimize notice is hereby given that on July 25, at $.20 per contract. The next 1,125,000 the potential that a person could 2008, the Chicago Board Options contracts traded (up to 1.2 million total improperly interfere with or restrict the Exchange, Incorporated (‘‘CBOE’’ or contracts traded—second tier) are ability of the Commission and BSE to ‘‘Exchange’’) filed with the Securities assessed at $.18 per contract. The next effectively carry out their regulatory and Exchange Commission 1.8 million contracts traded (up to 3 oversight responsibilities under the Act. (‘‘Commission’’) the proposed rule million total contracts traded—third The clarifications proposed by BSE do change as described in Items I, II and III tier) are assessed at $.15 per contract not hinder the intent of Section 8.4(g) below, which Items have been prepared because the Commission believes that a by CBOE. The Commission is 2 Contract volume resulting from dividend, merger and short stock interest strategies as defined person without voting power in the in Footnote 13 of the Fees Schedule does not apply equity securities of a BOX Member, or 270 15 U.S.C. 78s(b)(2). towards reaching the sliding scale volume a person with no direct or indirect 1 15 U.S.C. 78s(b)(1). thresholds.

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and the next 1.8 million contracts III. Date of Effectiveness of the of such filing also will be available for traded (up to 4.8 million total contracts Proposed Rule Change and Timing for inspection and copying at the principal traded—fourth tier) are assessed at $.10 Commission Action office of CBOE. All comments received per contract. All contracts above 4.8 The foregoing rule change has become will be posted without change; the million contracts traded in a month effective pursuant to Section 19(b)(3)(A) Commission does not edit personal (fifth tier) are assessed at $.03 per of the Act 6 and subparagraph (f)(2) of identifying information from contract.3 Rule 19b–4 thereunder.7 At any time submissions. You should submit only The Exchange proposes to add a sixth within 60 days of the filing of the information that you wish to make tier in order to provide an additional fee proposed rule change, the Commission available publicly. All submissions reduction at higher volume levels. may summarily abrogate such rule should refer to File Number SR–CBOE– Specifically, the Exchange proposes to change if it appears to the Commission 2008–78, and should be submitted on or assess $.01 per contract for all contracts that such action is necessary or before September 2, 2008. appropriate in the public interest, for above 10 million contracts traded by a For the Commission, by the Division of Liquidity Provider in a month. the protection of investors, or otherwise in furtherance of the purposes of the Trading and Markets, pursuant to delegated Accordingly, the fifth tier would be authority.8 revised to reflect that all contracts above Act. Florence E. Harmon, 4.8 million up to 10 million contracts IV. Solicitation of Comments traded in a month would be assessed Acting Secretary. Interested persons are invited to $.03 per contract. [FR Doc. E8–18602 Filed 8–11–08; 8:45 am] submit written data, views, and BILLING CODE 8010–01–P No other changes to the program are arguments concerning the foregoing, proposed. The Exchange plans to including whether the proposed rule implement the proposed fee change on change, is consistent with the Act. SECURITIES AND EXCHANGE August 1, 2008. Comments may be submitted by any of COMMISSION the following methods: 2. Statutory Basis Electronic Comments [Release No. 34–58300; File No. SR–NSCC– The Exchange believes the proposed • 2008–06] rule change is consistent with Section Use the Commission’s Internet comment form (http://www.sec.gov/ 6(b) of the Securities Exchange Act of Self-Regulatory Organizations; The 1934 (‘‘Act’’) 4, in general, and furthers rules/sro.shtml); or • Send an e-mail to rule- National Securities Clearing the objectives of Section 6(b)(4) 5 of the [email protected]. Please include File Corporation; Notice of Filing and Act in particular, in that it is designed Number SR–CBOE–2008–78 on the Immediate Effectiveness of Proposed to provide for the equitable allocation of subject line. Rule Change To Enhance the Equity reasonable dues, fees, and other charges Options Service To Include Bond among CBOE members. The proposed Paper Comments Options fee change would provide an additional • Send paper comments in triplicate fee reduction to Liquidity Providers at to Secretary, Securities and Exchange August 4, 2008. higher monthly volume levels. Commission, 100 F Street, NE., Pursuant to Section 19(b)(1) of the B. Self-Regulatory Organization’s Washington, DC 20549–1090. Securities Exchange Act of 1934 All submissions should refer to File Statement on Burden on Competition (‘‘Act’’),1 notice is hereby given that on Number SR–CBOE–2008–78. This file July 25, 2008, the National Securities CBOE does not believe that the number should be included on the Clearing Corporation (‘‘NSCC’’) filed proposed rule change will impose any subject line if e-mail is used. To help the with the Securities and Exchange burden on competition that is not Commission process and review your necessary or appropriate in furtherance comments more efficiently, please use Commission (‘‘Commission’’) the of the purposes of the Act. only one method. The Commission will proposed rule change described in Items post all comments on the Commission’s I, II, and III below, which items have C. Self-Regulatory Organization’s Internet Web site (http://www.sec.gov/ been prepared primarily by NSCC. The Statement on Comments on the rules/sro.shtml). Copies of the Commission is publishing this notice to Proposed Rule Change Received From submission, all subsequent solicit comments on the proposed rule Members, Participants, or Others amendments, all written statements change from interested parties. No written comments were solicited with respect to the proposed rule I. Self-Regulatory Organization’s or received with respect to the proposed change that are filed with the Statement of the Terms of Substance of rule change. Commission, and all written the Proposed Rule Change communications relating to the proposed rule change between the 3 The Exchange aggregates the trading activity of NSCC proposes to amend its rules in separate Liquidity Provider firms for purposes of Commission and any person, other than order to enhance the NSCC Equity the sliding scale if there is at least 75% common those that may be withheld from the Options Service by extending similar ownership between the firms as reflected on each public in accordance with the processing to bond options transactions. firm’s Form BD, Schedule A. A Liquidity Provider’s provisions of 5 U.S.C. 552, will be monthly contract volume is determined at the firm The enhanced service will be called the affiliation level, e.g., if five Liquidity Provider available for inspection and copying in ‘‘NSCC Equity Options and Bond individuals are affiliated with the same member the Commission’s Public Reference Options Service.’’2 firm as reflected by Exchange records for the entire Room 100 F Street, NE., Washington, DC month, all of the volume from those five individual 20549 on official business days between Liquidity Providers count towards that firm’s 8 17 CFR 200.30–3(a)(12). sliding scale transaction fees for that month. See the hours of 10 a.m. and 3 p.m. Copies 1 15 U.S.C. 78s(b)(1). CBOE Fees Schedule, Footnote 10. 2 Changes are to the rule text that appears in the 4 15 U.S.C. 78f(b). 6 15 U.S.C. 78s(b)(3)(A). electronic manual of NSCC found at http:// 5 15 U.S.C. 78f(b)(4). 7 17 CFR 240.19b–4(f)(2). www.nscc.com/legal/.

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II. Self-Regulatory Organization’s (‘‘DTCC’’), in 2003 created a subsidiary, NSCC will neither be responsible for Statement of the Purpose of, and DTCC Deriv/SERV LLC (‘‘Deriv/SERV’’). the content of the messages transmitted Statutory Basis for, the Proposed Rule Deriv/SERV currently offers a through the NSCC Equity Options and Change confirmation and matching service for Bond Options Service nor be In its filing with the Commission, OTC credit default swaps transactions, responsible for any errors, omissions, or NSCC included statements concerning interest rate swap transactions and delays that may occur relating to the the purpose of and basis for the equity derivative transactions and their NSCC Equity Options and Bond Options proposed rule change and discussed any associated cash flows. This service is Service in the absence of gross comments it received on the proposed widely used, including by all of the negligence on NSCC’s part. Both the rule change. The text of these statements largest OTC credit default swaps Service Agreement and the Deriv/SERV may be examined at the places specified dealers. Operating Procedures provide that in Item IV below. NSCC has prepared Deriv/SERV has developed a NSCC has no liability in connection summaries, set forth in sections (A), (B), confirmation and matching service for with the NSCC Equity Options and and (C) below, of the most significant OTC bond options transactions and Bond Options Service in the absence of aspects of these statements.3 their associated cash flows (the ‘‘Deriv/ gross negligence on NSCC’s part. SERV Bond Options Service’’). The Because the NSCC Equity Options and A. Self-Regulatory Organization’s Deriv/SERV Bond Options Service Bond Options Service does not involve Statement of the Purpose of, and provides for confirmation and matching money settlement, securities clearance, Statutory Basis for, the Proposed Rule either between two OTC bond options or netting through the facilities of Change dealers or between an OTC bond NSCC, it is a nonguaranteed service of The proposed rule change amends options dealer and its buy-side NSCC.7 Addendum M to NSCC’s Rules and customer. Where either the buyer or the Deriv/SERV will charge its users fees Procedures (‘‘Addendum M’’). seller of an equity option or a bond in connection with the Deriv/Serv Bond Addendum M currently relates to a option is a U.S. person and the equity Options Service and pursuant to the confirmation and matching service for option or bond option is issued by a Service Agreement will make payments over-the-counter (‘‘OTC’’) U.S. equity U.S. issuer (a ‘‘U.S. Equity Option to NSCC for the services that NSCC is options transactions and their Transaction’’ or ‘‘U.S. Bond Option providing. NSCC will file proposed rule associated cash flows called the NSCC Transaction’’), NSCC will provide the changes under Section 19(b) of the Act Equity Options Service. The proposed NSCC Equity Options and Bond Options for fees that NSCC charges to Deriv/ rule change enhances the NSCC Equity Service to Deriv/SERV pursuant to the SERV for the NSCC Equity Options and Options Service by extending similar NSCC/DTCC Deriv/SERV Service Bond Options Service and for any processing to bond options transactions. Agreement (‘‘Service Agreement’’).5 changes made by NSCC to the NSCC The enhanced service will be called the Deriv/SERV is a Data Services Only Equity Options and Bond Options ‘‘NSCC Equity Options and Bond Member of NSCC.6 Service. Options Service.’’ The Deriv/SERV Bond Options NSCC believes that the proposed rule The Commission approved NSCC’s Service is operated pursuant to the change is consistent with the filing on Form 19b–4, File No. SR– operating procedures of Deriv/SERV requirements of Section 17A of the Act NSCC–2005–04, which proposed (the ‘‘Deriv/SERV Operating and the rules and regulations adding, on a permanent basis, Procedures’’). U.S. Bond Option thereunder because the implementation Addendum M to NSCC’s Rules and Transactions are also subject to NSCC’s of the proposal will provide for the Procedures to establish the NSCC Equity Addendum M. Therefore, each user of prompt and accurate clearance and 4 Options Service. This filing proposes a the Deriv/SERV Bond Options Service settlement of U.S. OTC equity option rule change to amend Addendum M to enters into an agreement with Deriv/ transactions processed through the enhance the NSCC Equity Options SERV obligating the user to abide by the NSCC Equity Options and Bond Options Service by extending processing to bond terms of the Deriv/SERV Operating Service by facilitating the transmission option transactions. Because the bond Procedures and obligating it to abide by options service to be provided by NSCC 7 NSCC offers certain ‘‘guaranteed’’ services Addendum M for any U.S. Bond Option through its CNS system, in which NSCC as a central would be largely identical to the Transactions. Pursuant to the Service existing NSCC Equity Options Service, counterparty provides settlement-related guarantees Agreement, NSCC has the right to regarding certain trades cleared and netted at NSCC. this filing substantially restates the require Deriv/SERV to cause Deriv/ NSCC also offers ‘‘nonguaranteed’’ services, such as information contained in the previous NSCC’s Mutual Fund and Insurance Processing SERV’s users to abide by the terms of Services, in which members do not receive the filings regarding equity options Addendum M. In addition, pursuant to transactions. protections of the NSCC guarantee. Some of NSCC’s the Service Agreement, NSCC and nonguaranteed services entail settlement of funds In response to the need for Deriv/SERV have agreed that should the through NSCC on a nonguaranteed basis (e.g., automation of the trade confirmation Commission request that NSCC provide NSCC’s FundSERV(r) service); other nonguaranteed process in the derivatives industry, the services involve the communication of information to the Commission any information corporate parent of NSCC, The only without settlement of transactions or funds relating to the NSCC Equity Options and through the facilities of NSCC (e.g., NSCC’s Profile Depository Trust & Clearing Corporation Bond Options Service, Deriv/SERV will service in NSCC’s Mutual Fund Services). The NSCC Equity Options and Bond Options Service is 3 The Commission has modified the text of the provide any such information in its of this latter type; i.e., a nonguaranteed service summaries prepared by the NSCC. possession to NSCC so that NSCC may limited to the communication of information only, 4 The Commission approved NSCC’s original provide such information to the which does not involve settlement of securities filing on Form 19b–4, File No. SR–NSCC–2004–04 Commission. transactions or funds through the facilities of NSCC. (the ‘‘Original Filing’’) on a temporary basis through In its Matching Release, the Commission concluded May 31, 2005, pending evaluation of the service. A that matching constitutes a clearing agency subsequent filing, File No. SR–NSCC–2005–04 (the 5 The host computer and other automated function, specifically the ‘‘comparison of data ‘‘Subsequent Filing’’), provided information facilities associated with the NSCC Equity Options respecting the terms of settlement of securities regarding findings related to the evaluation of the and Bond Options Service are provided by DTC transactions,’’ within the meaning of Section service, restated the Original Filing, as amended, pursuant to service agreements between NSCC and 3(a)(23)(A) of the Act. Securities Exchange Act and sought permanent approval of the service. The DTCC and between DTCC and DTC. Release No. 39829 (April 6, 1998), 63 FR 17943 Subsequent Filing was approved May 26, 2005. 6 NSCC Rules and Procedures, Rule 31. (File No. S7–10–98).

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of standardized information on a Paper Comments SECURITIES AND EXCHANGE centralized communications platform. • COMMISSION This will reduce processing errors, Send paper comments in triplicate to Secretary, Securities and Exchange [Release No. 34–58314; File No. SR–NSCC– delays, and risks that are typically 2008–07] associated with manual processes. Commission, 100 F Street, NE., Washington, DC 20549–1090. B. Self-Regulatory Organization’s Self-Regulatory Organizations; Statement on Burden on Competition All submissions should refer to File National Securities Clearing Number SR-NSCC–2008–06. This file Corporation; Notice of Filing of NSCC does not believe that the number should be included on the Proposed Rule Change To Enhance proposed rule change will impose any subject line if e-mail is used. To help the Processing of Exchange-Traded Funds burden on competition that is not Commission process and review your necessary or appropriate in furtherance August 5, 2008. comments more efficiently, please use of the purposes of the Act. Pursuant to Section 19(b)(1) of the only one method. The Commission will Securities Exchange Act of 1934 C. Self-Regulatory Organization’s post all comments on the Commission’s (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 Statement on Comments on the Internet Web site (http://www.sec.gov/ notice is hereby given that on July 22, Proposed Rule Change Received From rules/sro.shtml). Copies of the 2008 the National Securities Clearing Members, Participants, or Others submission, all subsequent Corporation (‘‘NSCC’’) filed with the No written comments relating to the amendments, all written statements Securities and Exchange Commission proposed rule change have been with respect to the proposed rule (‘‘Commission’’) the proposed rule solicited or received. NSCC will notify change that are filed with the change described in Items I, II, and III the Commission of any written Commission, and all written below, which items have been prepared comments received by NSCC. communications relating to the primarily by NSCC. The Commission is proposed rule change between the publishing this notice to solicit III. Date of Effectiveness of the Commission and any person, other than comments on the proposed rule change Proposed Rule Change and Timing for those that may be withheld from the from interested parties. Commission Action public in accordance with the I. Self-Regulatory Organization’s The foregoing rule change has become provisions of 5 U.S.C. 552, will be Statement of the Terms of Substance of effective upon filing pursuant to Section available for inspection and copying in the Proposed Rule Change 19(b)(3)(A)(iii) of the Act 8 and Rule the Commission’s Public Reference 19b–4(f)(4) 9 thereunder in that it: (i) Room, 100 F Street, NE., Washington, The proposed rule change seeks to: (i) Expand processing of shares in Does not adversely affect the DC 20549, on official business days exchange-traded funds (‘‘Index safeguarding of securities or funds in between the hours of 10 a.m. and 3 p.m. Receipts’’) to allow for cash as a sole the custody or control of the clearing Copies of such filings also will be agency or for which it is responsible and component of creations and available for inspection and copying at redemptions and (ii) provide for an (ii) does not significantly affect the the principal office of NSCC and on respective rights or obligations of the optional shortened processing cycle for NSCC’s Web site, http://www.nscc.com/ clearing agency or persons using the creates and redeems of Index Receipts legal/. All comments received will be service. At any time within sixty days and their underlying components. posted without change; the Commission of the filing of such rule change, the does not edit personal identifying II. Self-Regulatory Organization’s Commission may summarily abrogate Statement of the Purpose of, and such rule change if it appears to the information from submissions. You should submit only information that Statutory Basis for, the Proposed Rule Commission that such action is Change necessary or appropriate in the public you wish to make available publicly. All interest, for the protection of investors, submissions should refer to File In its filing with the Commission, or otherwise in furtherance of the Number SR–NSCC–2008–06 and should NSCC included statements concerning purposes of the Act. be submitted on or before September 2, the purpose of and basis for the 2008. proposed rule change and discussed any IV. Solicitation of Comments comments it received on the proposed For the Commission by the Division of Interested persons are invited to rule change. The text of these statements Trading and Markets, pursuant to delegated may be examined at the places specified submit written data, views, and authority.10 in Item IV below. NSCC has prepared arguments concerning the foregoing, Florence E. Harmon, including whether the proposed rule summaries, set forth in sections (A), (B), change is consistent with the Act. Acting Secretary. and (C) below, of the most significant 3 Comments may be submitted by any of [FR Doc. E8–18548 Filed 8–11–08; 8:45 am] aspects of these statements. the following methods: BILLING CODE 8010–01–P A. Self-Regulatory Organization’s Electronic Comments Statement of the Purpose of, and Statutory Basis for, the Proposed Rule • Use the Commission’s Internet Change comment form (http://www.sec.gov/ rules/sro.shtml) or NSCC began processing Index Receipts with the launch of the first • Send an e-mail to rule- exchange-traded fund, the SPDR, in [email protected]. Please include File 1993. NSCC’s Index Receipt processing Number SR–NSCC–2008–06 on the subject line. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 8 15 U.S.C. 78s(b)(3)(A)(iii). 3 The Commission has modified the text of the 9 17 CFR 240.19b–4(f)(4). 10 17 CFR 200.30–3(a)(12). summaries prepared by NSCC.

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supports: (i) The creation of Index components are processed through CNS Index Receipts on a shortened Receipt units whereby a member will or the Balance Order Accounting settlement cycle. NSCC also is deliver the underlying component Operation and are incorporated into the proposing to revise its processing to shares to the Index Receipt agent and normal equity clearance and settlement address the timing of the NSCC trade receive Index Receipts and (ii) the process. Unsettled positions in Index guarantee as well as associated trade redemption of Index Receipt units Receipts and their component securities processing and Clearing Fund whereby a member will deliver the are currently risk managed as ordinary provisions for such shortened Index Receipts and receive the activity and guaranteed pursuant to the settlement Index Receipts. underlying components. provisions of Addendum K of NSCC’s Currently, shortened settlement for rules. standard equity CNS trades (e.g., next 1. Current Process day settlement) are reported in the Currently, on the day before trade 2. Proposed Enhancements Consolidated Trade Summary and date (‘‘T–1’’), an Index Receipt agent NSCC currently supports the creation guaranteed on the night of T. NSCC then transmits files to NSCC that contain and redemption of Index Receipts with collects Clearing Fund payments at 10 information regarding the underlying underlying components that are CNS a.m. on T+1. Because next day settling composition of Index Receipts for eligible securities scheduled to settle on trades are effectively guaranteed in the creates and redeems occurring the next a T+3 basis. The Index Receipts and the CNS night cycle prior to margining, business day.4 NSCC compiles the components themselves are processed NSCC currently uses a process that takes information that evening and provides through CNS. Index Receipts that are that uncertainty into consideration by members with a portfolio composition not eligible for processing through collecting a ‘‘look-back’’ premium in the report listing the composition of Index NSCC are routinely processed outside of Clearing Fund calculation.6 Leveraging Receipts eligible for processing. The NSCC. For the past two years, demand this existing practice for next-day report displays the proportionate for NSCC’s create and redeem service settlement of creates and redeems amount of underlying stocks that has increased significantly per annum would be cost-prohibitive based on the compose each Index Receipt and with activity for Index Receipts with large number of ‘‘in kind’’ shares 7 that contains a cash component, which is an non-U.S. equity components increasing are exchanged in this process. estimation of accrued dividends and the most. As more fully described NSCC is therefore proposing to delay any necessary balancing amount.5 The below, the proposed enhancements will processing of next day settling creates portfolio information contained in this allow members to create Index Receipts and redeems and their underlying report is used for creation and that (i) have underlying securities other components until the CNS day cycle on redemption processing the next day, than domestic equity securities for cash T+1.8 These transactions would be which is the Trade Date. On Trade Date, as consideration and (ii) will allow an reported on the Second Supplemental by such time as established by NSCC, optional shortened settlement cycle for Consolidated Trade Summary that is the Index Receipt agent, acting on behalf creates and redeems and their generally released mid-day. Delayed of each member placing an Index underlying components. processing would allow NSCC ample time to collect Clearing Fund payments Receipt order, will report to NSCC the A. Expand the Index Receipt Process To number of Index Receipts created and prior to guaranteeing the transactions Allow for Cash as Sole Component for and thus obviate the need for the look- redeemed that day. Such a report Creations and Redemptions constitutes locked-in transactions back Clearing Fund premium but still between the Index Receipt agent and the Currently all component securities allow the trades to settle on T+1.9 member. The Index Receipt agent also must be CNS eligible to qualify for In addition, NSCC plans to implement will report the final cash amount and a NSCC’s create and redeem process. Cash a new fee for shortened-cycle creates transaction amount that represents the is used as a component only for accrued and redeems as more fully described Index Receipt agent’s transaction fee. dividends and any balancing amount below. On the night of Trade Date, NSCC but not as a separate underlying Therefore, NSCC proposes to amend transmits an Index Receipt instruction component. its Rules as follows to provide for detail report to members that had NSCC is proposing to expand its settlement of index receipt transactions activity on Trade Date. The report serves Index Receipt processing to allow for on T+1 or T+2 on an optional basis: as the contract for the creation and creates and redeems using cash as the (i) Amendment of Addendum K redemption activity and lists the sole underlying component. This Regarding Guarantee of Next Day number of component shares that the enhancement would allow members and Settling Index Receipts member, depending upon the their agent banks to create and redeem Index Receipts whose underlying NSCC proposes to amend Addendum underlying shares’ CNS eligibility, will K to provide that settlement of creates deliver to or receive from CNS on components are not currently eligible settlement date (‘‘T+3’’) or otherwise as for processing at NSCC (for example, commodity Index Receipts). The Index 6 In order to account for the risk of unknown an item as allotted through the Balance positions, Risk Management performs a look-back Order Accounting System. On the night Receipt agent would use the cash to calculation to estimate shortened settlement of Trade Date, each Index Receipt purchase the components, the volumes and values. The shortened settlement instruction is separated into its settlement of which would occur component is added to a members’ Clearing Fund outside of NSCC. requirement for 21 days after each shortened underlying stock components, and these settlement occurs. B. T+1 and T+2 Settlement of Creations 7 Most Index Receipts are created and redeemed 4 NSCC’s current processing functions are set and Redemptions in units of 50,000. In other words, if a member were forth in Procedure II, Section H of NSCC’s Rules. to create six units it would receive 300,000 shares 5 The balancing amount is designed to NSCC currently supports the creation of the Index Receipt securities. compensate for any difference between the net asset and redemption of Index Receipts with 8 The CNS day-cycle is typically run at 11:30 a.m. value of the Index Receipt and the value of the underlying components scheduled to Component securities that are not CNS-eligible underlying index. Among other reasons, a would be processed through the Balance Order difference in value could result from the fact that settle on a T+3 basis. NSCC is proposing Accounting Operation. an Index Receipt cannot contain fractional shares of to expand its Index Receipt processing 9 If margin is not timely collected on T+1, creates a security. to allow a member to create and redeem and redeems may not be processed.

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and redeems, including the underlying third quarter of 2008. Members will be Paper Comments components, on a T+1 basis (including advised of the implementation date • Send paper comments in triplicate T+2 settling as-of creates and redeems through issuance of NSCC Important to Secretary, Securities and Exchange submitted on T+1) will be guaranteed Notices. Commission, 100 F Street, NE., on Settlement Date when NSCC NSCC believes that the proposed rule Washington, DC 20549–1090. determines to complete processing for change is consistent with the those items in the day cycle (normally, requirements of Section 17A of the All submissions should refer to File 11:30 a.m.); provided, however, that the Act 11 and the rules and regulations Number SR–NSCC–2008–07. This file transaction is not removed from thereunder because accelerated number should be included on the processing as described below.10 settlement of creates and redeems of subject line if e-mail is used. To help the Index Receipts facilitates the prompt Commission process and review your (ii) Amendment of Procedure II To comments more efficiently, please use Allow for Settlement on a Shorter Than and accurate clearance and settlement of securities transactions. only one method. The Commission will T+3 Basis post all comments on the Commission’s NSCC proposes to amend Procedure B. Self-Regulatory Organization’s Internet Web site (http://www.sec.gov/ II, Section H to provide that: (i) The Statement on Burden on Competition rules/sro.shtml). Copies of the Index Receipt agent may elect for NSCC does not believe that the submission, all subsequent settlement of the creates and redeems on proposed rule change will have any amendments, all written statements a T+1 or T+2 basis, (ii) as-of Index impact or impose any burden on with respect to the proposed rule Receipt creates and redeems will only competition. change that are filed with the be accepted if submitted by the cut-off Commission, and all written time designated by NSCC with C. Self-Regulatory Organization’s communications relating to the submission of next-day settling creates Statement on Comments on the proposed rule change between the and redeems required by such cut-off Proposed Rule Change Received From Commission and any person, other than time on T, (iii) NSCC reserves the right Members, Participants, or Others those that may be withheld from the to remove Index Receipt transactions Written comments relating to the public in accordance with the from processing in the event that the proposed rule change have not been provisions of 5 U.S.C. 552, will be applicable member has not met a margin solicited or received. NSCC will notify available for inspection and copying in call on settlement date, and (iv) next the Commission of any written the Commission’s Public Reference day settling creates and redeems comments received by NSCC. Section, 100 F Street, NE., Washington, (including T+2 settling as-of creates and DC 20549, on official business days redeems submitted on T+1) will be III. Date of Effectiveness of the between the hours of 10 a.m. and 3 p.m. posted to the Second Supplemental Proposed Rule Change and Timing for Copies of such filings also will be Consolidated Trade Summary and Commission Action available for inspection and copying at processed in the day cycle of the CNS Within thirty-five days of the date of the principal office of NSCC and on Accounting Operation. publication of this notice in the Federal NSCC’s Web site at http:// Register or within such longer period: www.dtcc.com/downloads/legal/ (iii) Amendment of Procedure XV _ (Clearing Fund Formula) (i) As the Commission may designate up rule filings/2008/nscc/2008–07.pdf. All to ninety days of such date if it finds comments received will be posted NSCC proposes to amend Procedure such longer period to be appropriate without change; the Commission does XV to provide that creates and redeems and publishes its reasons for so finding not edit personal identifying of Index Receipts, as well as the or (ii) as to which the self-regulatory information from submissions. You underlying components, will not be organization consents, the Commission should submit only information that subject to the ‘‘20-day look back will: you wish to make available publicly. All provision,’’ which provides for a charge (A) by order approve such proposed submissions should refer to File based on the average of the member’s rule change or Number SR–NSCC–2008–07 and should three highest aggregate calculated (B) institute proceedings to determine be submitted on or before September 2, charges for daily ‘‘Specified (shortened whether the proposed rule change 2008. cycle) Activity’’ measured over the most should be disapproved. recent 20 settlement days. For the Commission by the Division of IV. Solicitation of Comments Trading and Markets, pursuant to delegated (iv) Amendment of Addendum A (Fee authority.12 Structure) Interested persons are invited to Florence E. Harmon, submit written data, views, and Acting Secretary. The current fee for regular-way (T+3) arguments concerning the foregoing, settlement of creates and redeems is $30 including whether the proposed rule [FR Doc. E8–18549 Filed 8–11–08; 8:45 am] per create and redeem. To offset change is consistent with the Act. BILLING CODE 8010–01–P additional costs associated with Comments may be submitted by any of shortened settlement processing, NSCC the following methods: plans to implement a new fee of $50.00 SMALL BUSINESS ADMINISTRATION per create and redeem with a shortened Electronic Comments settlement cycle. • Use the Commission’s Internet [Disaster Declaration #11364 and #11365] comment form (http://www.sec.gov/ 3. Implementation Timeframe Mississippi Disaster #MS–00023 rules/sro.shtml) or NSCC proposes to implement the • Send an e-mail to rule- AGENCY: U.S. Small Business changes set forth in this filing in the [email protected]. Please include File Administration. Number SR–NSCC–2008–07 on the 10 In addition, the transaction must be submitted ACTION: Notice. for recording by an Index Receipt agent by such subject line. cutoff time as designated by the NSCC (pursuant to Procedure II). 11 15 U.S.C. 78q–1. 12 17 CFR 200.30–3(a)(12).

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SUMMARY: This is a notice of an SMALL BUSINESS ADMINISTRATION The States which received an EIDL Administrative declaration of a disaster Declaration # are California and Nevada. [Disaster Declaration #11351 and #11352] for the State of Mississippi dated 08/06/ (Catalog of Federal Domestic Assistance 2008. California Disaster #CA–00092 Numbers 59002 and 59008) Incident: Severe Storms and Flash Dated: August 4, 2008. Flooding. AGENCY: U.S. Small Business Incident Period: 07/29/2008. Administration. Jovita Carranza, Acting Administrator. Effective Date: 08/06/2008. ACTION: Notice. Physical Loan Application Deadline [FR Doc. E8–18559 Filed 8–11–08; 8:45 am] Date: 10/05/2008. SUMMARY: This is a notice of an BILLING CODE 8025–01–P Economic Injury (EIDL) Loan Administrative declaration of a disaster Application Deadline Date: 05/06/2009. for the State of California dated 08/04/ 2008. SMALL BUSINESS ADMINISTRATION ADDRESSES: Submit completed loan applications to: U.S. Small Business Incident: Severe Thunderstorms [Disaster Declaration # 11355] Administration, Processing and causing Flash Flooding and Landslides. Disbursement Center, 14925 Kingsport Incident Period: 07/12/2008 through Idaho Disaster # ID–00008. 07/20/2008. Road, Fort Worth, TX 76155. AGENCY: U.S. Small Business DATES: Effective date: 08/04/2008. FOR FURTHER INFORMATION CONTACT: M Administration. Physical Loan Application Deadline Mitravich, Office of Disaster Assistance, Date: 10/03/2008. ACTION: Notice. U.S. Small Business Administration, Economic Injury (EIDL) Loan 409 3rd Street, SW., Suite 6050, SUMMARY: This is a Notice of the Application Deadline Date: 05/04/2009. Washington, DC 20416. Presidential declaration of a major ADDRESSES: Submit completed loan SUPPLEMENTARY INFORMATION: Notice is disaster for Public Assistance Only for applications to: U.S. Small Business hereby given that as a result of the the State of Idaho (FEMA–1781–DR), Administration, Processing and Administrator’s disaster declaration, dated 07/31/2008. Disbursement Center, 14925 Kingsport applications for disaster loans may be Incident: Flooding. Road, Fort Worth, TX 76155. filed at the address listed above or other Incident Period: 05/15/2008 through locally announced locations. FOR FURTHER INFORMATION CONTACT: A. 06/09/2008. Effective Date: 07/31/2008. The following areas have been Escobar, Office of Disaster Assistance, Physical Loan Application Deadline determined to be adversely affected by U.S. Small Business Administration, Date: 09/29/2008. the disaster: 409 3rd Street, SW., Suite 6050, Washington, DC 20416. Economic Injury (EIDL) Loan Primary Counties: Forrest Application Deadline Date: 05/01/2009. Contiguous Counties: Mississippi SUPPLEMENTARY INFORMATION: Notice is ADDRESSES: Submit completed loan Covington, Jones, Lamar, Pearl River, hereby given that as a result of the Administrator’s disaster declaration, applications to: U.S. Small Business Perry, Stone Administration, Processing and The Interest Rates are: applications for disaster loans may be filed at the address listed above or other Disbursement Center, 14925 Kingsport locally announced locations. Road, Fort Worth, TX 76155. FOR FURTHER INFORMATION CONTACT: A. Percent The following areas have been determined to be adversely affected by Escobar, Office of Disaster Assistance, Homeowners With Credit Avail- the disaster: U.S. Small Business Administration, able Elsewhere ...... 5.375 Primary Counties: Inyo. 409 3rd Street, SW., Suite 6050, Homeowners Without Credit Contiguous Counties: Washington, DC 20416. Available Elsewhere ...... 2.687 California, Fresno, Kern, Mono, San SUPPLEMENTARY INFORMATION: Notice is Businesses With Credit Available Bernardino, Tulare. hereby given that as a result of the Elsewhere ...... 8.000 President’s major disaster declaration on Businesses and Small Agricultural Nevada, Clark, Esmeralda, Nye. Cooperatives Without Credit The Interest Rates are: 07/31/2008, Private Non-Profit Available Elsewhere ...... 4.000 organizations that provide essential Other (Including Non-Profit Orga- Percent services of governmental nature may file nizations) With Credit Available disaster loan applications at the address Elsewhere ...... 5.250 Homeowners With Credit Avail- listed above or other locally announced Businesses and Non-Profit Orga- able Elsewhere ...... 5.375 locations. nizations Without Credit Avail- Homeowners Without Credit The following areas have been able Elsewhere ...... 4.000 Available Elsewhere ...... 2.687 determined to be adversely affected by Businesses With Credit Available the disaster: The number assigned to this disaster Elsewhere ...... 8.000 Businesses and Small Agricultural Primary Counties: Kootenai, Shoshone. for physical damage is 11364 6 and for Contiguous Counties (Economic Injury economic injury is 11365 0. Cooperatives Without Credit Available Elsewhere ...... 4.000 Loans Only): The State which received an EIDL Other (Including Non-Profit Orga- Idaho: Benewah, Bonner, Clearwater. Declaration # is Mississippi. nizations) With Credit Available Montana: Mineral, Sanders. (Catalog of Federal Domestic Assistance Elsewhere ...... 5.250 Washington: Spokane. Numbers 59002 and 59008) Businesses and Non-Profit Orga- The Interest Rates are: nizations Without Credit Avail- Dated: August 6, 2008. able Elsewhere ...... 4.000 Jovita Carranza, Percent Acting Administrator. The number assigned to this disaster Other (Including Non-Profit Orga- [FR Doc. E8–18565 Filed 8–11–08; 8:45 am] for physical damage is 11351 9 and for nizations) With Credit Available BILLING CODE 8025–01–P economic injury is 11352 0. Elsewhere: ...... 5.250

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Percent SMALL BUSINESS ADMINISTRATION Effective Date: 08/05/2008. Physical Loan Application Deadline [Disaster Declaration #11310] Businesses and Non-Profit Orga- Date: 08/25/2008. nizations Without Credit Avail- ADDRESSES: Submit completed loan able Elsewhere: ...... 4.000 Minnesota Disaster Number MN–00015 applications to: U.S. Small Business AGENCY: U.S. Small Business Administration, Processing and The number assigned to this disaster Administration. for physical damage and for economic Disbursement Center, 14925 Kingsport ACTION: Amendment 4. injury is 11355. Road, Fort Worth, TX 76155. FOR FURTHER INFORMATION CONTACT: M. (Catalog of Federal Domestic Assistance SUMMARY: This is an amendment of the Number 59002 and 59008) Presidential declaration of a major Mitravich, Office of Disaster Assistance, disaster for Public Assistance Only for U.S. Small Business Administration, Herbert L. Mitchell, the State of Minnesota (FEMA–1772– 409 3rd Street, SW., Suite 6050, Associate Administrator for Disaster DR), dated 06/25/2008. Washington, DC 20416. Assistance. Incident: Severe Storms and Flooding. SUPPLEMENTARY INFORMATION: The notice [FR Doc. E8–18567 Filed 8–11–08; 8:45 am] Incident Period: 06/06/2008 through of the President’s major disaster BILLING CODE 8025–01–P 06/12/2008. declaration for Private Non-Profit DATES: Effective Date: 08/05/2008. organizations in the State of Minnesota, dated 06/25/2008, is hereby amended to SMALL BUSINESS ADMINISTRATION Physical Loan Application Deadline Date: 08/25/2008. re-establish the incident period for this [Disaster Declaration #11328] ADDRESSES: Submit completed loan disaster as beginning 06/06/2008 and applications to: U.S. Small Business continuing through 06/12/2008. Kansas Disaster Number KS–00027 Administration, Processing And All other information in the original AGENCY: U.S. Small Business Disbursement Center, 14925 Kingsport declaration remains unchanged. Administration. Road Fort, Worth, TX 76155. (Catalog of Federal Domestic Assistance ACTION: Amendment 1. FOR FURTHER INFORMATION CONTACT: M. Number 59008) Mitravich, Office of Disaster Assistance, Herbert L. Mitchell, SUMMARY: This is an amendment of the U.S. Small Business Administration, Presidential declaration of a major Associate Administrator for Disaster 409 3rd Street, SW., Suite 6050, Assistance. disaster for Public Assistance Only for Washington, DC 20416. the State of Kansas (FEMA–1776–DR), [FR Doc. E8–18569 Filed 8–11–08; 8:45 am] SUPPLEMENTARY INFORMATION: The notice dated 07/09/2008. BILLING CODE 8025–01–P Incident: Severe Storms, Flooding, of the President’s major disaster and Tornadoes. declaration for Private Non-Profit Incident Period: 05/22/2008 through organizations in the State of 06/16/2008. MINNESOTA, dated 06/25/2008, is DEPARTMENT OF STATE Effective Date: 08/05/2008. hereby amended to include the Physical Loan Application Deadline following areas as adversely affected by [Public Notice 6306] Date: 09/08/2008. the disaster. ADDRESSES: Submit completed loan Primary Counties: Cook. Re-Chartering of the Advisory applications to: U.S. Small Business All other information in the original Committee on International Administration, Processing and declaration remains unchanged. Communications and Information Policy (ACICIP) Disbursement Center, 14925 Kingsport (Catalog of Federal Domestic Assistance Road, Fort Worth, TX 76155. Number 59008) SUMMARY: The Advisory Committee on FOR FURTHER INFORMATION CONTACT: M. Herber L. Mitchell, International Communications and Mitravich, Office of Disaster Assistance, Information Policy (ACICIP) has been Associate Administrator for Disaster U.S. Small Business Administration, re-chartered for an additional two years. 409 3rd Street, SW., Suite 6050, Assistance. [FR Doc. E8–18558 Filed 8–11–08; 8:45 am] The Department of State announces Washington, DC 20416. the re-chartering of the Advisory SUPPLEMENTARY INFORMATION: The notice BILLING CODE 8025–01–P Committee on International of the President’s major disaster Communications and Information declaration for Private Non-Profit SMALL BUSINESS ADMINISTRATION Policy (ACICIP), a continuing committee organizations in the State of Kansas, under the authority of 22 U.S.C. 2656 dated 07/09/2008, is hereby amended to [Disaster Declaration #11310] and the Federal Advisory Committee include the following areas as adversely Act, 5 U.S.C., App. II, Secs. 1–5 Minnesota Disaster Number MN–00015 affected by the disaster. (‘‘FACA’’). ACICIP members are private Primary Counties: AGENCY: U.S. Small Business sector communications and information Elk, Haskell, Reno, Wilson. Administration. technology specialists from U.S. All other information in the original ACTION: Amendment 3. telecommunications companies, trade declaration remains unchanged. associations, policy institutions, and (Catalog of Federal Domestic Assistance SUMMARY: This is an amendment of the academia, who advise the Department Number 59008) Presidential declaration of a major on issues affecting international disaster for Public Assistance Only for communications and information Herbert L. Mitchell, the State of Minnesota (FEMA–1772– policy. Associate Administrator for Disaster DR), dated 06/25/2008. The Committee is subject to the Assistance. Incident: Severe Storms and Flooding. Federal Advisory Committee Act, which [FR Doc. E8–18566 Filed 8–11–08; 8:45 am] Incident Period: 06/06/2008 through requires advisory committees to renew BILLING CODE 8025–01–P 06/12/2008. their charters every two years.

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Dated: August 4, 2008. online instructions for submitting Background Emily Yee, comments. Designated Federal Officer, Department of Alternatively, you can file comments On May 25, 2007, the President State. using the following methods: signed into law the U.S. Troop • [FR Doc. E8–18600 Filed 8–11–08; 8:45 am] Mail: Docket Management Facility: Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability BILLING CODE 4710–07–P U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Room W12– Appropriations Act, 2007 (the Act), 140, Washington, DC 20590. (Pub. L. 110–28). Section 6901 of the • Hand Delivery or Courier: West Act requires that certain actions be DEPARTMENT OF TRANSPORTATION Building Ground Floor, Room W12–140, taken by the Department of 1200 New Jersey Avenue, SE., between Transportation (the Department) as a Federal Motor Carrier Safety 9 a.m. and 5 p.m. ET, Monday through condition of obligating or expending Administration Friday, except Federal holidays. appropriated funds to grant authority to • Fax: 202–493–2251. Mexico-domiciled motor carriers to [Docket No. FMCSA–2007–28055] Instructions: For detailed instructions operate beyond United States on submitting comments and additional municipalities and commercial zones on Demonstration Project on NAFTA information on the rulemaking process, Trucking Provisions the United States-Mexico border (border see the Request for Comments heading commercial zones). of the SUPPLEMENTARY INFORMATION AGENCY: Federal Motor Carrier Safety section of this document. Note that all Section 6901(b)(2)(B)(i) of the Act Administration (FMCSA). comments received will be posted requires FMCSA to publish ACTION: Notice; request for public without change to http:// comprehensive data and information on comment. www.regulations.gov, including any the PASAs conducted before and after personal information provided. Please the date of enactment of the Act of SUMMARY: FMCSA announces and see the Privacy Act heading below. motor carriers domiciled in Mexico that requests public comment on data and Privacy Act: Anyone is able to search are granted authority to operate beyond information concerning the Pre- the electronic form of all comments the border commercial zones. As of July Authority Safety Audits (PASAs) for received into any of our dockets by the 16, 2008, 27 carriers have been granted motor carriers that have applied to name of the individual submitting the authority to operate beyond the border participate in the Agency’s project to comment (or signing the comment, if commercial zones as part of this cross- demonstrate the ability of Mexico- submitted on behalf of an association, border demonstration project. However, domiciled motor carriers to operate business, labor union, etc.). You may FMCSA has chosen to publish for public safely in the United States beyond the review DOT’s complete Privacy Act comment data and information relating commercial zones on the U.S.-Mexico Statement in the Federal Register to all PASAs conducted as of July 16, border. This action is required by the published on April 11, 2000 (65 FR 2008. On March 24, 2008, FMCSA ‘‘U.S. Troop Readiness, Veterans’ Care, 19476). published in the Federal Register PASA Katrina Recovery, and Iraq Docket: For access to the docket to data for all motor carriers that had Accountability Appropriations Act, read background documents or applied to participate in the 2007.’’ comments received, go to http:// demonstration project, based on DATES: Comments must be received on www.regulations.gov. Follow the online information available as of February 7, or before August 27, 2008. instructions for accessing the dockets. 2008 (73 FR 15557). FMCSA announces ADDRESSES: You may submit comments FOR FURTHER INFORMATION CONTACT: Mr. that the following Mexico-domiciled identified by FDMS Docket ID Number Milt Schmidt, Division Chief, North motor carriers in Table 1 have FMCSA–2007–28055 by any of the American Borders Division, Telephone successfully completed their PASAs and following methods: (202) 366–4049; e-mail notice of this fact was published in the • Federal eRulemaking Portal: Go to [email protected]. FMCSA Register after the publication of http://www.regulations.gov. Follow the SUPPLEMENTARY INFORMATION: the March 24 notice:

TABLE 1

Row number in Tables 2 through 4 of the appendix to today’s notice Name of carrier USDOT No.

22 ...... GOMEZ GARCIA JOSE LUIS ...... 710473 24 ...... GRUPO TRANSPORMEX SA DE CV ...... 711208 63 ...... LUIS EDMUNDO GRIJALVA GAMEZ ...... 1598518 65 ...... INTERLOGISTICS DE MEXICO S DE RL DE CV ...... 1659365

FMCSA includes as an appendix to complete the PASA precludes their each column heading contained within this Federal Register notice, data and participation in the cross-border the appendix’s Tables 2, 3, and 4, information on the PASAs for which the demonstration project and the Act only ‘‘Successful Pre-Authority Safety Audit motor carrier successfully completed requires publication of data for carriers (PASA) Information as of July 16, 2008’’ the process before the enactment of the receiving operating authority, FMCSA is as well as in Table 5 ‘‘Failed Pre- Act, and any completed since then. See publishing this information to show that Authority Safety Audit (PASA) Tables 2, 3, and 4 in the appendix. The 4 motor carriers in addition to the 28 Information as of July 16, 2008,’’ is appendix also includes information motor carriers identified in the March provided below: about carriers that failed the PASA in 24 notice failed to meet U.S. safety A. Row Number in the Appendix: The Table 5. Although failure to successfully standards. A narrative description of line in the table on which all the PASA

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information concerning the motor I. U.S. Vehicles: The total number of participate in the cross-border carrier is presented. power units the motor carrier intends to demonstration project. B. Name of Carrier: The legal name of operate in the United States. L. Passed Phase 1, Factor 1: A ‘‘yes’’ the Mexico-domiciled motor carrier that J. Passed Verification 5 Elements in this column indicates the carrier has applied for authority to operate in the (Yes/No): A Mexico-domiciled motor successfully met Factor 1 (listed in part United States (U.S.) beyond the border carrier will not be granted provisional 365, Subpart E, Appendix A, Section commercial zones and was considered operating authority if FMCSA cannot IV(f)). Factor 1 includes the General for participation in the cross-border verify all of the following five Requirements outlined in parts 387 demonstration project. mandatory elements. FMCSA must: (Minimum Levels of Financial C. U.S. DOT Number: The a. Verify a controlled substances and Responsibility for Motor Carriers) and identification number assigned to the alcohol testing program consistent with 390 (Federal Motor Carrier Safety Mexico-domiciled motor carrier and 49 CFR part 40. Regulations—General). M. Passed Phase 1, Factor 2: A ‘‘yes’’ required to be displayed on each side of b. Verify a system of compliance with in this column indicates the carrier has the power unit. If granted provisional hours-of-service rules of 49 CFR part successfully met Factor 2, which operating authority, the Mexico- 395, including recordkeeping and includes the Driver Requirements domiciled motor carrier will be required retention; outlined in parts 382 (Controlled to add the suffix ‘‘X’’ to the ending of c. Verify proof of financial Substances and Alcohol Use and its assigned U.S. DOT Number. responsibility; Testing), 383 (Commercial Driver’s D. PASA Scheduled: The date the d. Verify records of periodic vehicle inspections; and License Standards; Requirements and PASA was scheduled to be initiated. Penalties) and 391 (Qualifications of e. Verify the qualifications of each E. PASA Completed: The date the Drivers and Longer Combination driver the carrier intends to use under PASA was completed. Vehicle (LCV) Driver Instructors). F. PASA Results: The results upon such authority, as required by 49 CFR N. Passed Phase 1, Factor 3: A ‘‘yes’’ completion of the PASA. The PASA parts 383 and 391, including confirming in this column indicates the carrier has receives a quality assurance review the validity of each driver’s Licencia successfully met Factor 3, which before approval. The quality assurance Federal de Conductor. includes the Operational Requirements process involves a dual review by the K. If No, Which Element Failed: If outlined in parts 392 (Driving of FMCSA Division Office Supervisor of FMCSA could not verify one or more of Commercial Motor Vehicles) and 395 the Auditor assigned to conduct the the five mandatory elements outlined in (Hours of Service of Drivers). PASA and the FMCSA Service Center 49 CFR part 365, Appendix A, Section O. Passed Phase 1, Factor 4: A ‘‘yes’’ New Entrant Specialist designated for III, this column will specify which in this column indicates the carrier has the specific FMCSA Division Office. mandatory element(s) could not be successfully met Factor 4, which The dual review ensures the verified. includes the Vehicle Requirements successfully completed PASA was Please note that for items L through P outlined in parts 393 (parts and conducted in accordance with FMCSA below, during the PASA, after verifying Accessories Necessary for Safe policy, procedures and guidance. Upon the five mandatory elements discussed Operation) and 396 (Inspection, Repair approval, the PASA results are in item J above, FMCSA will gather and Maintenance) and vehicle uploaded into the FMCSA Motor Carrier information by reviewing a motor inspection and out-of-service data for Management Information System carrier’s compliance with ‘‘acute and the last 12 months. (MCMIS). The PASA information and critical’’ regulations of the Federal P. Passed Phase 1, Factor 6: A ‘‘yes’’ results are then recorded in the Mexico- Motor Carrier Safety Regulations in this column indicates the carrier has domiciled motor carrier’s safety (FMCSRs) and Hazardous Materials successfully met Factor 6, which performance record in MCMIS. Regulations (HMRs). Acute regulations includes Accident History. This factor is are those where noncompliance is so G. FMCSA Register: The date the the recordable accident rate during the severe as to require immediate FMCSA published notice of a past 12 months. A recordable corrective actions by a motor carrier successfully completed PASA in the ‘‘accident’’ is defined in 49 CFR 390.5, regardless of the overall basic safety FMCSA Register. The FMCSA Register and means an accident involving a management controls of the motor notice advises interested parties that the commercial motor vehicle operating on carrier. Critical regulations are those application has been preliminarily a public road in interstate or intrastate where noncompliance relates to granted and that protests to the commerce which results in: a fatality; a management and/or operational application must be filed within 10 days bodily injury to a person who, as a controls. These regulations are of the publication date. Protests are filed result of the injury, immediately indicative of breakdowns in a carrier’s with FMCSA Headquarters in received medical treatment away from management controls. A list of acute Washington, DC. The notice in the the scene of the accident; or one or more and critical regulations is included in 49 FMCSA Register lists the following motor vehicles incurring disabling CFR part 385, Appendix B, Section VII. information: damage as a result of the accident Parts of the FMCSRs and HMRs requiring the motor vehicle to be a. Current registration number (e.g., having similar characteristics are transported away from the scene by a MX–123456); combined together into six regulatory tow truck or other motor vehicle. b. Date the notice was published in areas called ‘‘factors.’’ The regulatory Q. Number U.S. Vehicles Inspected: the FMCSA Register; factors are intended to evaluate the The total number of vehicles (power c. The applicant’s name and address; adequacy of a carrier’s management units and trailers) the motor carrier and controls. intends to operate in the United States d. Representative or contact Factor 5 relates to the transportation that received a vehicle inspection information for the applicant. of hazardous materials and was omitted during the PASA. During a PASA, H. U.S. Drivers: The total number of below, as Mexico-domiciled motor FMCSA inspected all vehicles that did drivers the motor carrier intends to use carriers that transport hazardous not display a current Commercial in the United States. materials are not permitted to Vehicle Safety Alliance (CVSA)

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inspection decal. This number reflects a. ‘‘US’’ means the controlled interested persons on the PASA the vehicles that were inspected, substance and alcohol collection facility information presented in the appendix irrespective of whether the vehicle is based in the United States. to this notice. All comments received received a CVSA inspection decal as a b. ‘‘MX’’ means the controlled before the close of business on the result of a passed inspection. substance and alcohol collection facility comment closing date indicated at the is based in Mexico. beginning of this notice will be R. Number U.S. Vehicles Issued CVSA c. ‘‘Non-CDL’’ means that during the considered and will be available for Decal: The total number of inspected PASA, FMCSA verified that the motor examination in the docket at the vehicles (power units and trailers) the carrier is not utilizing commercial motor location listed under the ADDRESSES motor carrier intends to operate in the vehicles subject to the commercial section of this notice. Comments United States that received a CVSA driver’s license requirements as defined received after the comment closing date inspection decal as a result of an in 49 CFR 383.5 (Definition of will be filed in the public docket and inspection during the PASA. Commercial Motor Vehicle). Any motor will be considered to the extent S. Number U.S. Vehicles With Current carrier that does not operate commercial practicable. In addition to late CVSA Decal: The total number of motor vehicles as defined in § 383.5 is comments, the FMCSA will also vehicles (power units and trailers) the not subject to DOT controlled substance continue to file, in the public docket, and alcohol testing requirements. motor carrier intends to operate in the relevant information that becomes U. Name of Controlled Substances United States that displayed a current available after the comment closing and Alcohol Collection Facility: Shows date. Interested persons should continue CVSA inspection decal at the time of the the name and location of the U.S. PASA. to examine the public docket for new controlled substances and alcohol material. T. Controlled Substances Collection: collection facility that will be used by Refers to the applicability and/or a Mexico-domiciled motor carrier who Issued on: August 6, 2008. country of origin of the controlled has successfully completed the PASA. John H. Hill, substance and alcohol collection facility Request for Comments Administrator. that will be used by a motor carrier who BILLING CODE 4910–EX–P has successfully completed the PASA. In accordance with the Act, FMCSA requests public comment from all Appendix

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[FR Doc. E8–18604 Filed 8–11–08; 8:45 am] BILLING CODE 4910–EX–C

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DEPARTMENT OF TRANSPORTATION comments, please include a self- crashes and no convictions for moving addressed, stamped envelope or violations in a CMV. Federal Motor Carrier Safety postcard, or print the acknowledgement Administration page that appears after submitting Terrence L. Benning comments on-line. [Docket ID. FMCSA–2008–0231] Mr. Benning, 53, has aphakia in his Privacy Act: Anyone may search the left eye due to a traumatic injury he Qualification of Drivers; Exemption electronic form of all comments sustained as a child. The best corrected Applications; Vision received into any of our dockets by the visual acuity in his right eye is 20/25 name of the individual submitting the and in the left, hand-motion vision. AGENCY: Federal Motor Carrier Safety comment (or of the person signing the Administration (FMCSA), DOT. Following an examination in 2008, his comment, if submitted on behalf of an ophthalmologist noted, ‘‘Based on the ACTION: Notice of applications for association, business, labor union, etc.). fact that he has recently been exemptions; request for comments. You may review the DOT’s complete functioning well driving a commercial Privacy Act Statement in the Federal vehicle, it is my medical opinion that he SUMMARY: FMCSA announces receipt of Register published on April 11, 2000 applications from 23 individuals for does have sufficient vision to operate a (65 FR 19476). This information is also commercial vehicle.’’ Mr. Benning exemptions from the vision requirement available at http://Docketsinfo.dot.gov. in the Federal Motor Carrier Safety reported that he has driven straight Regulations. If granted, the exemptions FOR FURTHER INFORMATION CONTACT: Dr. trucks for 10 years, accumulating would enable these individuals to Mary D. Gunnels, Director, Medical 250,000 miles, and tractor-trailer qualify as drivers of commercial motor Programs, (202) 366–4001, combinations for 25 years, accumulating vehicles (CMVs) in interstate commerce [email protected], FMCSA, 2.9 million miles. He holds a Class A without meeting the Federal vision Department of Transportation, 1200 CDL from Wisconsin. His driving record standard. New Jersey Avenue, SE., Room W64– for the last 3 years shows no crashes and 224, Washington, DC 20590–0001. no convictions for moving violations in DATES: Comments must be received on Office hours are from 8:30 a.m. to 5 a CMV. or before September 11, 2008. p.m., Monday through Friday, except ADDRESSES: You may submit comments Federal holidays. Rickie L. Boone bearing the Federal Docket Management SUPPLEMENTARY INFORMATION: System (FDMS) Docket ID FMCSA– Mr. Boone, 48, has loss of vision in 2008–0231 using any of the following Background his right eye due to a detached retina methods: which occurred in 2001. The visual Under 49 U.S.C. 31136(e) and 31315, • Federal eRulemaking Portal: Go to acuity in his right eye is light perception FMCSA may grant an exemption for a 2- http://www.regulations.gov. Follow the and in the left, 20/20. Following an year period if it finds ‘‘such exemption on-line instructions for submitting examination in 2008, his optometrist would likely achieve a level of safety comments. noted, ‘‘In my medical opinion, Mr. that is equivalent to, or greater than, the • Mail: Docket Management Facility; Boone is able to perform the driving level that would be achieved absent U.S. Department of Transportation, 1200 tasks required to operate a commercial such exemption.’’ FMCSA can renew New Jersey Avenue, SE., West Building, vehicle.’’ Mr. Boone reported that he has exemptions at the end of each 2-year Ground Floor, Room W12–140, driven straight trucks for 28 years, period. The 23 individuals listed in this Washington, DC 20590–0001. accumulating 1.1 million miles, and notice each have requested an • Hand Delivery: West Building, tractor-trailer combinations for 28 years, exemption from the vision requirement Ground Floor, Room W12–140, 1200 accumulating 1.1 million miles. in 49 CFR 391.41(b)(10), which applies New Jersey Avenue, SE., Washington, to drivers of CMVs in interstate He holds a Class A CDL from North DC, between 9 a.m. and 5 p.m., Monday commerce. Accordingly, the Agency Carolina. His driving record for the last through Friday, except Federal will evaluate the qualifications of each 3 years shows no crashes and no Holidays. applicant to determine whether granting convictions for moving violations in a • Fax: 1–202–493–2251. the exemption will achieve the required CMV. Each submission must include the level of safety mandated by statute. Agency name and the docket ID for this Robert S. Bowen Notice. Note that DOT posts all Qualifications of Applicants comments received without change to Mr. Bowen, 49, has had a prosthetic William C. Ball http://www.regulations.gov, including left eye due to a history of melanoma any personal information included in a Mr. Ball, age 39, has had amblyopia since 1994. The best corrected visual comment. Please see the Privacy Act in his right eye since childhood. The acuity in his right eye is 20/20. heading below. best corrected visual acuity in his right Following an examination in 2008, his Docket: For access to the docket to is eye is 20/200 and in the left, 20/20. optometrist noted, ‘‘It is my opinion that read background documents or Following an examination in 2008 his Mr. Bowen is visually qualified to comments, go to http:// ophthalmologist noted, ‘‘I certify in my perform the tasks necessary to operate a www.regulations.gov at any time or medical opinion that Mr. Ball has commercial vehicle.’’ Mr. Bowen Room W12–140 on the ground level of sufficient vision to perform the driving reported that he has driven tractor- the West Building, 1200 New Jersey task required to operate a commercial trailer combinations for 31 years, Avenue, SE., Washington, DC, between vehicle.’’ Mr. Ball reported that he has accumulating 2.5 million miles. He 9 a.m. and 5 p.m., Monday through driven straight trucks for 41⁄2 years, holds a Class A CDL from Georgia. His Friday, except Federal holidays. The accumulating 146,250 miles. He holds a driving record for the last 3 years shows FDMS is available 24 hours each day, Class A Commercial Driver’s License one crash, for which he was not cited, 365 days each year. If you want (CDL) from North Carolina. His driving and no convictions for moving acknowledgment that we received your record for the last 3 years shows no violations in a CMV.

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Dennis R. Buszkiewicz combinations for 26 years, accumulating crashes and no convictions for moving Mr. Buszkiewicz, 55, has had 2 million miles. He holds a Class D violations in a CMV. operator’s license from Alabama. amblyopia in his left eye since Brian F. Denning childhood. The best corrected visual His driving record for the last 3 years Mr. Denning, 47, has had amblyopia acuity in his right eye is 20/20 and in shows one crash, for which he was not in his right eye since childhood. The the left, 20/50. Following an cited, and no convictions for moving best corrected visual acuity in his right examination in 2008, his violations in a CMV. eye is 20/200 and in the left, 20/20. ophthalmologist noted, ‘‘I certify that Alfred A. Constantino Following an examination in 2008, his Dennis R. Buszkiewicz has sufficient vision to perform the driving tasks Mr. Constantino, 59, has had optometrist noted, ‘‘It is my belief that required to operate a commercial amblyopia in his right eye since 1995. Brian has sufficient vision to safely vehicle.’’ Mr. Buszkiewicz reported that The best corrected visual acuity in his drive a commercial vehicle.’’ Mr. he has driven straight trucks for 35 right eye is 20/60 and in the left, 20/25. Denning reported that he has driven years, accumulating 1 million miles. He Following an examination in 2008, his straight trucks for 23 years, holds a Class B CDL from Illinois. His optometrist noted, ‘‘In my medical accumulating 920,000 miles. He holds a driving record for the last 3 years shows opinion Alfred Constantino has Class A CDL from California. His no crashes and no convictions for sufficient vision to perform the driving driving record for the last 3 years shows moving violations in a CMV. tasks required to operate a commercial no crashes and no convictions for vehicle.’’ Mr. Constantino reported that moving violations in a CMV. Larry T. Byrley he has driven straight trucks for 40 Michael W. Dillard Mr. Byrley, 62, has had a macular scar years, accumulating 400,000 miles, and Mr. Dillard, 35, has hyperopia and in his left eye since birth. The best tractor-trailer combinations for 4 years, corrected visual acuity in his right eye astigmatism in his left eye since accumulating 10,000 miles. He holds a childhood. The best corrected visual is 20/20 and in the left, 20/200. Class 10 operator’s license from Rhode Following an examination in 2008, his acuity in his right eye is 20/20 and in Island; this allows him to drive which the left, 20/50. Following an ophthalmologist noted, ‘‘The patient has allows him to operate any motor vehicle a long standing loss of vision in the left examination in 2008, his optometrist except a motorcycle and a vehicle that noted, ‘‘Mr. Dillard has sufficient visual eye. This should pose no problem in weighs more than 26,000 pounds, him driving a commercial vehicle.’’ Mr. acuity and fields to operate a tractor- carries 16 or more passengers or trailer.’’ Mr. Dillard reported that he has Byrley reported that he has driven transports placarded amounts of straight trucks for 5 years, accumulating driven straight trucks for 10 years, hazardous materials. His driving record accumulating 555,000 miles, and 150,000 miles, and tractor-trailer for the last 3 years shows no crashes and combinations for 11 years, accumulating tractor-trailer combinations for 4 years, no convictions for moving violations in accumulating 222,000 miles. He holds a 935,000 miles. He holds a Class A CDL a CMV. from Ohio. His driving record for the Class A CDL from West Virginia. His last 3 years shows one crash, for which James R. Corley driving record for the last 3 years shows he was not cited, and no convictions for no crashes and no convictions for Mr. Corley, 65, has a prosthetic right moving violations in a CMV. moving violations in a CMV. eye due to a traumatic injury sustained Robert J. Clarke as a child. The best corrected visual Kelly M. Greene Mr. Clarke, 51, has had amblyopia in acuity in his left eye is 20/20. Following Mr. Greene, 46, has had a corneal scar his left eye since birth. The best an examination in 2008, his and amblyopia in his left eye since corrected visual acuity in his right eye ophthalmologist noted, ‘‘It is my childhood. The visual acuity in his right is 20/20 and in the left, 20/200. opinion that if persons with one are eye eye is 20/20 and in the left, 20/200. Following an examination in 2008, his are legal to operate a commercial Following an examination in 2008, his optometrist noted, ‘‘It is my personal vehicle, then Mr. Corley has sufficient ophthalmologist noted, ‘‘Patient has opinion that Mr. Clarke has sufficient visual ability to do so.’’ Mr. Corley sufficient vision to perform driving vision to perform the driving tasks reported that he has driven straight tasks required to operate a commercial required to operate a commercial trucks for 19 years, accumulating vehicle.’’ Mr. Greene reported that he vehicle.’’ Mr. Clarke reported that he 152,000 miles. He holds a Class B CDL has driven straight trucks for 15 years, has driven straight trucks for 20 years, from Alabama. His driving record for accumulating 1.7 million miles. He accumulating 728,000 miles. He holds a the last 3 years shows no crashes and no holds a Class A CDL from Florida. His Class B CDL from New York. His driving convictions for moving violations in a driving record for the last 3 years shows record for the last 3 years shows no CMV. no crashes and two convictions for crashes and no convictions for moving Larry D. Curry moving violations in a CMV; following violations in a CMV. another vehicle too closely, and Mr. Curry, 57, has a complete loss of speeding in a CMV. He exceeded the Eldon D. Cochran vision in his left eye due to a traumatic speed limit by 6 mph. Mr. Cochran, 71, has had amblyopia injury sustained as a child. The visual in his left eye since birth. The best acuity in his right eye is 20/20. Sammy K. Hines corrected visual acuity in his right eye Following an examination in 2008, his Mr. Hines, 60, has had amblyopia in is 20/20 and in the left, 20/100. optometrist noted, ‘‘It is my opinion that his right eye since childhood. The best Following an examination in 2008, his Mr. Curry does have sufficient vision to corrected visual acuity in his right eye optometrist noted, ‘‘I believe Mr. safely operate a commercial vehicle.’’ is 20/400 and in the left, 20/20. Cochran has sufficient vision to operate Mr. Curry reported that he has driven Following an examination in 2008, his a commercial vehicle.’’ Mr. Cochran tractor-trailer combinations for 9 years, optometrist noted, ‘‘Based on the reported that he has driven straight accumulating 900,000 miles. He holds a examination results, Mr. Hines has trucks for 10 years, accumulating Class A CDL from Georgia. His driving sufficient vision in both eyes to perform 208,000 miles, and tractor-trailer record for the last 3 years shows no the driving tasks required to operate a

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commercial vehicle.’’ Mr. Hines since birth. The best corrected visual shows one crash, which he was cited reported that he has driven straight acuity in his right eye is 20/25 and in for, and no other convictions for moving trucks for 18 years, accumulating the left, 20/150. Following an violations in a CMV. 216,000 miles, and tractor-trailer examination in 2008 his Thomas P. Shank combinations for 18 years, accumulating ophthalmologist noted, ‘‘My opinion is 216,000 miles. He holds a Class A CDL that he has sufficient vision to operate Mr. Shank, 41, has had exotropia in from Texas. His driving record for the a commercial vehicle.’’ Mr. Meier his right eye since birth. The best last 3 years shows no crashes and no reported that he has driven straight corrected visual acuity in his right eye convictions for moving violations in a trucks for 30 years, accumulating is count-finger vision and in the left, 20/ CMV. 675,000 miles. He holds a Class D 16. Following an examination in 2008, operator’s license from Iowa. His his optometrist noted, ‘‘In my medical John H. Holmberg driving record for the last 3 years shows opinion, Mr. Shank has sufficient vision Mr. Holmberg, 63, has had amblyopia no crashes and no convictions for to perform the driving tasks required to in his left eye since childhood. The best moving violations in a CMV. operate a commercial vehicle at any corrected visual acuity in his right eye time of day or night.’’ Mr. Shank James G. Mitchell is 20/20 and in the left, 20/70. reported that he has driven straight Following an examination in 2008 his Mr. Mitchell, 41, has a prosthetic left trucks for 5 years, accumulating 250,000 optometrist noted, ‘‘I would concur with eye due to a traumatic injury that miles, and tractor-trailer combinations these results and agree that Mr. occurred in 1993. The visual acuity in for 19 years, accumulating 1.7 million Holmberg has adequate vision to operate his left eye is 20/20. Following an miles. He holds a Class A CDL from a commercial vehicle.’’ Mr. Holmberg examination in 2007 his optometrist New York. His driving record for the reported that he has driven straight noted, ‘‘I feel Mr. Mitchell is visually last 3 years shows no crashes and two trucks for 20 years, accumulating 50,000 able to operate a motor vehicle in all convictions for moving violations in a miles. He holds a Class A CDL from lighting conditions with a driver’s side CMV; unsafe lane changes, and Wisconsin. His driving record for the mirror.’’ Mr. Mitchell reported that he speeding in a CMV. He exceeded the last 3 years shows no crashes and no has driven tractor-trailer combinations speed limit by 9 mph. convictions for moving violations in a for 16 years, accumulating 2.2 million CMV. miles. He holds a Class D operator’s Request for Comments license from Alabama. His driving In accordance with 49 U.S.C. 31136(e) Gary R. Lomen record for the last 3 years shows no and 31315, FMCSA requests public Mr. Lomen, 49, has had amblyopia in crashes and no convictions for moving comment from all interested persons on his left eye since childhood. The best violations in a CMV. the exemption petitions described in corrected visual acuity in his right eye Billy R. Pierce this notice. The Agency will consider all is 20/20 and in the left, 20/50. comments received before the close of Following an examination in 2008, his Mr. Pierce, 59, has a decreased right business September 11, 2008. optometrist noted, ‘‘In my opinion, Mr. eye due to a severe infection that Comments will be available for Lomen can operate a commercial occurred in 2004. The best corrected examination in the docket at the vehicle safely with his current vision, visual acuity in his right eye is 20/20 location listed under the ADDRESSES based on years of success with his and in the left, 20/400. Following an section of this notice. The Agency will visual condition.’’ Mr. Lomen reported examination in 2008, his optometrist file comments received after the that he has driven straight trucks for 16 noted, ‘‘It is my opinion, that Mr. Pierce comment closing date in the public years, accumulating 542,400 miles. He has the ability and visual ability to docket, and will consider them to the holds an operator’s license from operate a commercial vehicle.’’ Mr. extent practicable. In addition to late Washington. His driving record for the Pierce reported that he has driven comments, FMCSA will also continue to last 3 years shows no crashes and no straight trucks for 43 years, file, in the public docket, relevant convictions for moving violations in a accumulating 1.3 million miles, and information that becomes available after CMV. tractor-trailer combinations for 29 years, the comment closing date. Interested accumulating 435,000 miles. He holds a Leonardo Lopez, Jr. persons should monitor the public Class D operator’s license from docket for new material. Mr. Lopez, 36, has complete loss of Alabama. His driving record for the last vision in his right eye due to chronic 3 years shows no crashes and no Issued on: August 7, 2008, retinal detachment. The best corrected convictions for moving violations in a Larry W. Minor, visual acuity in his left eye is 20/30. CMV. Associate Administrator for Policy and Following an examination in 2007 his Program Development. James A. Rapp ophthalmologist noted, ‘‘I believe that [FR Doc. E8–18613 Filed 8–11–08; 8:45 am] Mr. Lopez has sufficient vision to Mr. Rapp, 46, has had loss of vision BILLING CODE 4910–EX–P perform driving tasks required to in his left eye due to childhood operate a commercial vehicle.’’ Mr. glaucoma. The visual acuity in his right Lopez reported that he has driven eye is 20/20 and in the left, count-finger DEPARTMENT OF TRANSPORTATION straight trucks for 9 years, accumulating vision. Following an examination in 126,000 miles. He holds a Class D 2008, his ophthalmologist noted, ‘‘In my Federal Transit Administration opinion, he has sufficient vision to operator’s license from New Jersey. His [Docket No: FTA–2008–0009] driving record for the last 3 years shows perform the driving tasks required to no crashes and no convictions for operate a commercial vehicle.’’ Mr. National Transit Database: Policy on moving violations in a CMV. Rapp reported that he has driven Reporting of Coordinated Human straight trucks for 18 years, Services Transportation Data Jeffrey F. Meier accumulating 374,400 miles. He holds a Mr. Meier, 50, has had a macular scar Class D operator’s license from Ohio. AGENCY: Federal Transit Administration in his left eye due to toxoplasmosis His driving record for the last 3 years (FTA), DOT.

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ACTION: Notice of Proposed New Policy a.m. and 5 p.m. ET, Monday through and were often not open to the general on Reporting of Coordinated Human Friday, except Federal holidays. public at large. Data for these trips were Services Transportation Data to the Instructions: When submitting thus excluded from the calculation of National Transit Database. comments, you must use docket number the apportionment of Urbanized Area FTA–2008–0009. This will ensure that Formula Grants. SUMMARY: This notice provides your comment is placed in the correct FTA proposes to clarify this policy in interested parties with the opportunity docket. If you submit comments by light of FTA’s policy and guidance on to comment on changes to the Federal mail, you should submit two copies and Coordinated Human Services Transit Administration’s (FTA) National include the above docket number. Transportation, and in light of PTA’s Transit Database (NTD) policy on the Note that all comments received will recently revised charter rule (49 CFR reporting of coordinated human services be posted, without change, to Part 604, 73 FR 2326, January 14, 2008). transportation data. For many years, it Note that all comments received will FTA proposes in this notice that transit has been FTA’s policy to require transit be posted, without change, to http:// providers reporting to the NTD for the agencies reporting demand response www.regulations.gov including any 2008 NTD Report Year, should report all service to the NTD to exclude service personal identifying information. of their demand response services to individuals as public transportation data for certain sponsored trips from FOR FURTHER INFORMATION CONTACT: For their reports. These trips were typically program issues, John D. Giorgis, Office services, regardless of whether the trip arranged and paid for by a third party of Budget and Policy, (202) 366–5430 was sponsored in whole or in part by a third party. Trips that meet the for a specific group of clients (such as (telephone); (202) 366–7989 (fax); or definition of charter service at 49 CFR participants in programs like Medicaid, [email protected] (e-mail). For legal 604.3(c) must be reported on a quarterly Head Start, sheltered workshops, or issues, Richard Wong, Office of the basis on the charter registration Web assisted living centers), and were often Chief Counsel, (202) 366–0675 site, as required by the charter rule, and not open to the general public at large. (telephone); (202) 366–3809 (fax); or data for these trips should not be Data for these trips were thus excluded [email protected] (e-mail). from the calculation of the reported as revenue service to the NTD. SUPPLEMENTARY INFORMATION: apportionment of Urbanized Area A key component of FTA’s charter Formula Grants. In light of FTA’s I. Background rule is the concept of ‘‘exclusivity.’’ policies and guidance on Coordinated Charter service is defined, in part, as The National Transit Database (NTD) ‘‘transportation provided * * *, at the Human Services Transportation, FTA is is the Federal Transit Administration’s proposing to clarify this policy for the request of a third party for the exclusive (FTA’s) primary database for statistics use of a bus or van at a negotiated 2008 NTD Report Year to specify that on the transit industry. Congress transit agencies are to report data for all price,’’ with the caveat that ‘‘charter established the NTD to ‘‘help meet the service * * * does not include demand of their demand response service as needs of * * * the public for public transportation, except for those response service to individuals.’’ Transit information on which to base public providers reporting to the NTD may services that are defined as charter transportation service planning. * * *’’ service under FTA’s recently revised distinguish their demand response (49 U.S.C. 5335). Currently, over 650 services, particularly their sponsored charter rule (49 CFR Part 604, 73 FR transit providers in urbanized areas 2326, January 14, 2008). FTA also demand response service, from charter report to the NTD through an Internet- service a number of ways: (1) Charter proposes to require transit agencies in based reporting system. Each year, urbanized areas to separately report service is exclusive, whereas demand performance data from these response service is shared-ride. If the their ‘‘regular unlinked passenger trips’’ submissions are used to apportion over and their ‘‘sponsored demand response transit provider may mix passengers $5 billion of FTA funds under the from a trip sponsor with other demand unlinked passenger trips’’ for demand Urbanized Area Formula Grants and the response service. FTA invites the public response passengers on the same trip, Fixed Guideway Modernization Grants then the trip is on shared-ride service, to comment on this proposed policy Programs. These data are also used in and service data for that trip should be change. the annual National Transit Summaries reported to the NTD as public DATES: Comments must be received on and Trends report, the biennial transportation. (2) Charter service is or before September 11, 2008. FTA will Conditions and Performance Report to service to a group, whereas demand consider comments filed after this date Congress, and in meeting FTA’s response service is service to to the extent practicable. obligations under the Government individuals. Service to individuals can Performance and Results Act. be identified by a vehicle trip that ADDRESSES: You may submit comments includes multiple origins, multiple [identified by DOT Docket ID Number II. Proposed Policy Change destinations, or both, even when the FTA–2008–0009] at the Federal For many years, it has been FTA’s clients have exclusive use of the eRulemaking Portal at: http:// policy to require transit providers vehicle. Some demand response www.regulations.gov. Follow the online reporting demand response service to sponsored trips carried out as part of a instructions for submitting comments. the NTD to exclude certain trips that Coordinated Human Services Fax: 202–493–2251. were sponsored by a third party from Transportation Plan, such as trips for Mail: Docket Management Facility: their reports. A ‘‘trip sponsor’’ refers to Head Start, assisted living centers, or U.S. Department of Transportation, 1200 a third party that reimbursed the transit sheltered workshops, may be provided New Jersey Avenue, SE., West Building provider in whole or in part for the trip, on an exclusive basis, but are provided Ground Floor, Room W12–140, and in many cases, handled all or part to service multiple origins to a single Washington, DC 20590–0001. of the trip arrangements. These trips destination, a single origin to multiple Hand Delivery or Courier: U.S. were typically arranged and paid for by destinations, or even multiple origins to Department of Transportation, 1200 some third party for a specific group of multiple destinations. Transit providers New Jersey Ave., SE., West Building clients (such as participants in programs should report service data for these trips Ground Floor, Room W12–140, like Medicaid, Head Start, sheltered to the NTD as public transportation. (3) Washington, DC 20590–0001 between 9 workshops, or assisted living centers), Charter service is for a specific event or

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function, whereas demand response Issued in Washington, DC, this 1st day of Collection Number 1 August 2008. service is regular and continuing. Some Title: Class I Railroad Annual Report demand response sponsored trips James S. Simpson, OMB Control Number: 2140–0009. carried out as part of a Coordinated Administrator. Form Number: R1. Human Services Transportation Plan [FR Doc. E8–18388 Filed 8–11–08; 8:45 am] Type of Review: Extension without may be exclusive, and may be for a BILLING CODE 4910–57–M change. group from a single origin to a single Respondents: Class I railroads. destination, but may occur on a Number of Respondents: Fewer than frequently reoccurring basis, such as DEPARTMENT OF TRANSPORTATION 10. daily, weekly, biweekly, or monthly. Estimated Time per Response: As long Surface Transportation Board Transit providers should report service as 800 hours, based on information data for these trips to the NTD as public 60-Day Notice and Request for provided by the railroad industry during transportation. Demand response Comments the 1990’s. This estimate includes time service that is exclusive, from a single spent reviewing instructions; searching origin to a single destination, and that AGENCY: Surface Transportation Board, existing data sources; gathering and reoccurs on a less-frequent basis that DOT. maintaining the data needed; once per month should be considered to ACTION: 60-day notice and request for completing and reviewing the collection be charter service. Transit providers comments. of information; and converting the data should report these services to the from the carrier’s individual accounting SUMMARY: As part of its continuing effort charter registration Web site. system to the Board’s Uniform System to reduce paperwork burdens, and as of Accounts (USOA), which ensures that Transit providers reporting to the required by the Paperwork Reduction the information will be presented in a NTD must specifically exclude from Act of 1995, 44 U.S.C. 3501 et seq. consistent format across all reporting their reports on revenue service any (PRA), the Surface Transportation Board railroads, see 49 U.S.C. 11141–43, service that meets the definition of (Board) gives notice of its intent to 11161–64, 49 CFR 1200–1201. It is ‘‘charter service’’ under the charter rule, request from the Office of Management likely that the estimated time to produce and thus, must be reported to the and Budget (OMB) approval without this report is overstated, given the charter registration Web site. This change of the seven existing collections advances made in computerized data exclusion includes charter service described below. collection and processing systems. legally provided to a Qualified Human Comments are requested concerning Frequency of Response: Annual. Services Organization (QHSO), as each collection as to (1) Whether the Total Annual Hour Burden: Up to provided for by the charter rule. particular collection of information is 5,600 hours annually. necessary for the proper performance of To implement this policy, FTA Total Annual ‘‘Non-Hour Burden’’ the functions of the Board, including Cost: No ‘‘non-hour cost’’ burdens proposes to require transit providers whether the collection has practical reporting to the NTD to report their associated with this collection have utility; (2) the accuracy of the Board’s been identified. regular unlinked passenger trips and burden estimates; (3) ways to enhance their sponsored unlinked passenger Needs and Uses: Annual reports are the quality, utility, and clarity of the required to be filed by Class I railroads trips separately for demand response information collected; and (4) ways to service. Reporters would not have to under 49 U.S.C. 11145. The reports minimize the burden of the collection of show operating expenses and operating make this distinction for any other information on the respondents, statistics of the carriers. Operating modes of service. Regular unlinked including the use of automated expenses include costs for right-of-way passenger trips would refer to those collection techniques or other forms of and structures, equipment, train and demand response trips that are arranged information technology, when yard operations, and general and and paid for by individuals, even when appropriate. Submitted comments will administrative expenses. Operating those individuals pay the fare with user- be included and/or summarized in the statistics include such items as car- side subsidies, such as coupons or Board’s request for OMB approval. miles, revenue-ton-miles, and gross ton- passes provided a QHSO. Regular DATES: Written comments are due on miles. The reports are used by the unlinked passenger trips would include October 14, 2008. Board, other Federal agencies, and all demand response trips provided ADDRESSES: Direct all comments to industry groups to monitor and assess pursuant to the requirements of the Marilyn Levitt, Surface Transportation railroad industry growth, financial Americans with Disabilities Act of 1990. Board, Suite 1260, 395 E Street, SW., stability, traffic, and operations, and to Sponsored unlinked passenger trips Washington, DC 20423–0001, or to identify industry changes that may would include all trips where the transit [email protected]. Comments should affect national transportation policy. provider is directly reimbursed in whole be identified as ‘‘Paperwork Reduction Information from this report is also or in part by some third party that has Act Comments, and should refer to the entered into the Board’s Uniform Rail helped arrange for the trips. This title and control number of the specific Costing System (URCS), which is a cost distinction would make reporting of collection(s) commented upon. measurement methodology. URCS, these services for urbanized area transit FOR FURTHER INFORMATION CONTACT: For which was developed by the Board agencies consistent with the reporting of additional information or copies of the pursuant to 49 U.S.C. 11161, is used as these services for transit agencies in information collection(s) contact Scott a tool in rail rate proceedings, in rural areas. Since this proposal is being Decker at (202) 245–0330 or accordance with 49 U.S.C. 10707(d), to announced late in the 2008 Report Year, [email protected]. [Federal calculate the variable costs associated FTA will grant a waiver from reporting Information Relay Service (FIRS) for the with providing a particular service. The separately regular and sponsored hearing impaired: (800) 877–8339.] Board also uses this information to more unlinked passenger trips for the 2008 Subjects: In this notice the Board is effectively carry out other of its Report Year to any NTD Reporter that requesting comments on the following regulatory responsibilities, including: requests such a waiver. information collections: Acting on railroad requests for authority

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to engage in Board-regulated financial published on the Board’s Web site, hours per annual summation, based on transactions such as mergers, http://www.stb.dot.gov. The information information provided by the railroad acquisitions of control, and contained in these reports is not industry during the 1990’s. Again, it is consolidations, see 49 U.S.C. 11323– available from any other source. likely that the time required to collect this information is overstated given the 11324; analyzing the information that Collection Number 3 the Board obtains through the annual advances made in computerized data railroad industry waybill sample, see 49 Title: Quarterly Condensed Balance collection and processing systems. CFR 1244; measuring off-branch costs in Sheet—Railroads (Form CBS). Frequency of Response: Quarterly, railroad abandonment proceedings, in OMB Control Number: 2140–0014. with an annual summation. accordance with 49 CFR 1152.32(n); Form Number: None. Total Annual Hour Burden: Up to Type of Review: Extension without developing the ‘‘rail cost adjustment 1120 hours annually. change. factors,’’ in accordance with 49 U.S.C. Total Annual ‘‘Non-Hour Burden’’ Respondents: Class I railroads. Cost: No ‘‘non-hour cost’’ burdens 10708; and conducting investigations Number of Respondents: Fewer than associated with this collection have and rulemakings. 10. Information from certain schedules Estimated Time per Response: 6 been identified. Needs and Uses: This collection contained in these reports is compiled hours. and published on the Board’s Web site, Frequency of Response: Quarterly. shows the number of employees, service http://www.stb.dot.gov. Information in Total Annual Hour Burden: 168 hours hours, and compensation, by employee these reports is not available from any annually. group (e.g., executive, professional, other source. Total Annual ‘‘Non-Hour Burden’’ maintenance-of-way and equipment, Cost: No ‘‘non-hour cost’’ burdens and transportation), of the reporting Collection Number 2 associated with this collection have railroads. See 49 CFR part 1245. The Title: Quarterly Report of Revenues, been identified. information is used by the Board to Expenses, and Income—Railroads (Form Needs and Uses: This collection forecast labor costs and measure the RE&I). shows the balance, quarterly and efficiency of the reporting railroads. The OMB Control Number: 2140–0013. cumulative for the current and prior information is also used by the Board to Form Number: None. year, of the carrier’s assets and evaluate proposed regulated Type of Review: Extension without liabilities, gross capital expenditures, transactions that may impact rail change. and revenue tons carried. See 49 CFR employees, including mergers and Respondents: Class I railroads. 1243.2. The Board uses the information consolidations, acquisitions of control, Number of Respondents: Fewer than in this report to ensure competitive, purchases, and abandonments. Other 10. efficient, and safe transportation Federal agencies and industry groups, Estimated Time per Response: 6 through general oversight programs that including the Railroad Retirement hours. monitor and forecast the financial and Board, Bureau of Labor Statistics, and Frequency of Response: Quarterly. Association of American Railroads, use Total Annual Hour Burden: 168 hours operating condition of railroads, and the information contained in the reports annually. through specific regulation of railroad to monitor railroad operations. Certain Total Annual ‘‘Non Hour Burden’’ rate and service issues and rail information from these reports is Cost: No ‘‘non-hour cost’’ burdens restructuring proposals, including compiled and published on the Board’s associated with this collection have railroad mergers, consolidations, Web site, http://www.stb.dot.gov. The been identified. acquisitions of control, and Needs and Uses: This collection is a abandonments. Information from these information contained in these reports report of railroad operating revenues, reports is used by the Board, other is not available from any other source. operating expenses and income items; it Federal agencies, and industry groups to Collection Number 5 assess industry growth and operations, is a profit and loss statement, disclosing Title: Monthly Report of Number of net railway operating income on a detect changes in carrier financial stability, and identify trends that may Employees of Class I Railroads (Wage quarterly and year-to-date basis for the Form C). current and prior years. See 49 CFR affect the national transportation system. Revenue ton-miles, which are OMB Control Number: 2140–0007. 1243.1. The Board uses the information Form Number: STB Form 350. in this report to ensure competitive, reported in these reports, are compiled and published by the Board in its Type of Review: Extension without efficient, and safe transportation change. through general oversight programs that quarterly Selected Earnings Data Report, which is published on the Board’s Web Respondents: Class I railroads. monitor and forecast the financial and Number of Respondents: Fewer than site, http://www.stb.dot.gov. The operating condition of railroads, and 10. information contained in these reports through regulation of railroad rate and Estimated Time per Response: 1.25 is not available from any other source. service issues and rail restructuring hours. proposals, including railroad mergers, Collection Number 4 Frequency of Response: Monthly. consolidations, acquisitions of control, OMB Control Number: 2140–0004. Total Annual Hour Burden: 105 hours and abandonments. Information from Title: Report of Railroad Employees, annually. these reports is used by the Board, other Service and Compensation (Wage Forms Total Annual ‘‘Non-Hour Burden’’ Federal agencies, and industry groups to A and B). Cost: No ‘‘non-hour cost’’ burdens monitor and assess industry growth and Form Number: None. associated with this collection have operations, detect changes in carrier Type of Review: Extension without been identified. financial stability, and identify trends change. Needs and Uses: This collection that may affect the national Respondents: Class I railroads. shows, for each reporting carrier, the transportation system. Some of the Number of Respondents: Fewer than average number of employees at mid- information from these reports is 10. month in the six job-classification compiled by the Board in our quarterly Estimated Time per Response: As long groups that encompass all railroad Selected Earnings Data Report, which is as 30 hours per quarterly report and 40 employees. See 49 CFR part 1246. The

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information is used by the Board to Needs and Uses: This collection, DATES: Written comments should be forecast labor costs and measure the which is based on information received on or before October 14, 2008 efficiency of the reporting railroads. The contained in carload waybills used by to be assured of consideration. information is also used by the Board to railroads in the ordinary course of ADDRESSES: Direct all written comments evaluate the impact on rail employees of business, reports car loadings and total to Dwight Wolkow, International proposed regulated transactions, revenues by commodity code for each Portfolio Investment Data Systems, including mergers and consolidations, commodity that moved on the railroad Department of the Treasury, Room 5422, acquisitions of control, purchases, and during the reporting period. See 49 CFR 1500 Pennsylvania Avenue, NW., abandonments. Other Federal agencies part 1248. Information in this report is Washington, DC 20220. In view of and industry groups, including the entered into the Board’s URCS, the uses possible delays in mail delivery, please Railroad Retirement Board, Bureau of of which are explained under Collection also notify Mr. Wolkow by e-mail Labor Statistics, and Association of Number 1. There is no other source for ([email protected]), FAX American Railroads, use the information the information contained in this report. (202–622–2009) or telephone (202–622– contained in these reports to monitor SUPPLEMENTARY INFORMATION: Under the 1276). railroad operations. Certain information PRA, a Federal agency conducting or FOR FURTHER INFORMATION CONTACT: from these reports is compiled and sponsoring a collection of information Copies of the proposed forms and published on the Board’s Web site, must display a currently valid OMB instructions are available on the http://www.stb.dot.gov. The information control number. A collection of Treasury’s TIC Forms Web page, contained in these reports is not information, which is defined in 44 http://www.treas.gov/tic/forms.html. available from any other source. U.S.C. 3502(3) and 5 CFR 1320.3(c), Requests for additional information Collection Number 6 includes agency requirements that should be directed to Mr. Wolkow. Title: Annual Report of Cars Loaded persons submit reports, keep records, or SUPPLEMENTARY INFORMATION: Titles: and Cars Terminated. provide information to the agency, third Treasury International Capital Form BC, OMB Control Number: 2140–0011. parties, or the public. Under section Report of U.S. Dollar Claims of Form Number: Form STB–54. 3506(c)(2)(A) of the PRA, Federal Depository Institutions, Brokers, and Type of Review: Extension without agencies are required, prior to Dealers on Foreigners; and Treasury change. submitting a collection to OMB for Capital Form BL–1, Report of U.S. Respondents: Class I railroads. approval, to provide a 60-day notice and Dollar Liabilities of Depository Number of Respondents: Fewer than comment period through publication in Institutions, Brokers, and Dealers to 10. the Federal Register concerning each Foreigners. Estimated Time per Response: 4 proposed collection of information, OMB Control Numbers: 1505–0017 hours. including each proposed extension of an and 1505–0019. Frequency of Response: Annual. existing collection of information. Abstracts: Forms BC and BL–1 are Total Annual Hour Burden: 28 hours part of the Treasury International annually. Anne K. Quinlan, Capital (TIC) reporting system, which is Total Annual ‘‘Non-Hour Burden’’ Secretary. required by law (22 U.S.C. 286f; 22 Cost: No ‘‘non-hour cost’’ burdens [FR Doc. E8–18531 Filed 8–11–08; 8:45 am] U.S.C. 3103; E.O. 10033; 31 CFR 128) for associated with this collection have BILLING CODE 4915–01–P the purpose of providing timely been identified. information on international portfolio Needs and Uses: This collection capital movements. Form BC is a reports the number of cars loaded and monthly report that covers own U.S. cars terminated on the reporting DEPARTMENT OF THE TREASURY dollar claims of banks, other depository carrier’s line. See 49 CFR part 1247. institutions, brokers and dealers vis-a- Information in this report is entered into Departmental Offices; Proposed vis foreign residents. Form BL–1 is a the Board’s URCS, the uses of which are Collections; Comment Requests monthly report that covers own U.S. explained under Collection Number 1. dollar liabilities of banks, other There is no other source for the ACTION: Notice and request for depository institutions, brokers and information contained in this report. comments. dealers vis-a-vis foreign residents. This Collection Number 7 information is necessary for compiling SUMMARY: The Department of the the U.S. balance of payments accounts OMB Control Number: 2140–000. Treasury, as part of its continuing effort Title: Quarterly Report of Freight and the U.S. international investment to reduce paperwork burdens, invites position, and for formulating U.S. Commodity Statistics (Form QCS). the general public and other Federal Form Number: None. international financial and monetary Type of Review: Extension without agencies to comment on revisions of two policies. change. information collections that are Current Actions: None. We expect to Respondents: Class I railroads. proposed for approval by the Office of make some clarifications in the Number of Respondents: Fewer than Management and Budget. The Office of instructions. 10. International Affairs within the Type of Review: Extension of a Estimated Time per Response: 217 Department of the Treasury is soliciting currently approved collection. hours. comments concerning Treasury Affected Public: Business or other for- Frequency of Response: Quarterly, International Capital (TIC) Form BC, profit organizations. with an annual summation. Report of U.S. Dollar Claims of Form BC (1505–0017). Total Annual Hour Burden: 6,076 Depository Institutions, Brokers, and Estimated Number of Respondents: hours annually. Dealers on Foreigners; and Treasury 283. Total Annual ‘‘Non-Hour Burden’’ International Capital (TIC) Form BL–1, Estimated Average Time per Cost: No ‘‘non-hour cost’’ burdens Report of U.S. Dollar Liabilities of Respondent: Ten hours per respondent associated with this collection have Depository Institutions, Brokers, and per filing. This average time varies from been identified. Dealers to Foreigners. 18 hours for the approximately 30 major

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reporters to 9 hours for the other Brokers and Dealers of Customers’ U.S. Request for Comments: Comments reporters. Dollar Liabilities to Foreigners. submitted in response to this notice will Estimated Total Annual Burden DATES: Written comments should be be summarized and/or included in the Hours: 33,800 hours, based on 12 received on or before October 14, 2008 request for Office of Management and reporting periods per year. to be assured of consideration. Budget approval. All comments will Form BL–1 (1505–0019). ADDRESSES: Direct all written comments become a matter of public record. The Estimated Number of Respondents: to Dwight Wolkow, International public is invited to submit written 349. Portfolio Investment Data Systems, comments concerning: (a) Whether Estimated Average Time per Form BL–2 is necessary for the proper Respondent: Seven and one-tenth (7.1) Department of the Treasury, Room 5422, 1500 Pennsylvania Avenue, NW., performance of the functions of the hours per respondent per filing. This Office, including whether the average time varies from 13 hours for Washington, DC 20220. In view of possible delays in mail delivery, please information will have practical uses; (b) the approximately 30 major reporters to the accuracy of the above estimate of the 6.5 hours for the other reporters. also notify Mr. Wolkow by e-mail ([email protected]), FAX burdens; (c) ways to enhance the Estimated Total Annual Burden quality, usefulness and clarity of the Hours: 29,560 hours, based on 12 (202–622–2009) or telephone (202–622– 1276). information to be collected; (d) ways to reporting periods per year. minimize the reporting and/or Request for Comments: Comments FOR FURTHER INFORMATION CONTACT: recordkeeping burdens on respondents, submitted in response to this notice will Copies of the proposed forms and including the use of information be summarized and/or included in the instructions are available on the technologies to automate the collection request for Office of Management and Treasury’s TIC Forms Web page, of the data; and (e) estimates of capital Budget approval. All comments will http://www.treas.gov/tic/forms.html. or start-up costs of operation, become a matter of public record. The Requests for additional information maintenance and purchase of services to public is invited to submit written should be directed to Mr. Wolkow. provide information. comments concerning: (a) Whether SUPPLEMENTARY INFORMATION: Forms BC and BL–1 are necessary for Titles: Treasury International Capital Dwight Wolkow, the proper performance of the functions Form BL–2, Report by Depository Administrator, International Portfolio of the Office, including whether the Institutions, Brokers and Dealers of Investment Data Systems. information will have practical uses; (b) Customers’ U.S. Dollar Liabilities to [FR Doc. E8–18538 Filed 8–11–08; 8:45 am] the accuracy of the above estimate of the Foreigners. BILLING CODE 4810–25–P burdens; (c) ways to enhance the OMB Control Number: 1505–0018. quality, usefulness and clarity of the Abstract: Form BL–2 is part of the information to be collected; (d) ways to Treasury International Capital (TIC) DEPARTMENT OF THE TREASURY minimize the reporting and/or reporting system, which is required by recordkeeping burdens on respondents, law (22 U.S.C. 286f; 22 U.S.C. 3103; Departmental Offices; Proposed including the use of information E.O. 10033; 31 CFR 128) and is designed Collection; Comment Request technologies to automate the collection to collect timely information on ACTION: of the data; and (e) estimates of capital international portfolio capital Notice and request for or start-up costs of operation, movements. Form BL–2 is a monthly comments. maintenance and purchase of services to report (with a semiannual supplement) SUMMARY: The Department of the provide information. filed by banks, other depository Treasury, as part of its continuing effort institutions, brokers and dealers that Dwight Wolkow, to reduce paperwork burdens, invites covers their U.S. customers’ dollar the general public and other Federal Administrator, International Portfolio liabilities vis-a`-vis foreign residents. Investment Data Systems. agencies to comment on revisions of an This information is necessary for information collection that are proposed [FR Doc. E8–18537 Filed 8–11–08; 8:45 am] compiling the U.S. balance of payments BILLING CODE 4810–25–P for approval by the Office of accounts and the U.S. international Management and Budget. The Office of investment position, and for formulating International Affairs within the U.S. international financial and DEPARTMENT OF THE TREASURY Department of the Treasury is soliciting monetary policies. comments concerning Treasury Departmental Offices; Proposed Current Actions: None. We expect to International Capital Form BQ–1, Report Collections; Comment Requests make some clarifications in the by Depository Institutions, Brokers and instructions. Dealers of Customers’ U.S. Dollar Type of Review: Extension of a ACTION: Notice and request for Claims on Foreigners. comments. currently approved collection. Affected Public: Business or other for- DATES: Written comments should be SUMMARY: The Department of the profit organizations. Form BL–2 (1505– received on or before October 14, 2008 Treasury, as part of its continuing effort 0018). to be assured of consideration. to reduce paperwork burdens, invites Estimated Number of Respondents: ADDRESSES: Direct all written comments the general public and other Federal 94. to Dwight Wolkow, International agencies to comment on revisions of an Estimated Average Time per Portfolio Investment Data Systems, information collection that are proposed Respondent: Seven and nine-tenths (7.9) Department of the Treasury, Room 5422, for approval by the Office of hours per respondent per filing. This 1500 Pennsylvania Avenue, NW., Management and Budget. The Office of average time varies from 12 hours for Washington, DC 20220. In view of International Affairs within the the approximately 30 major reporters to possible delays in mail delivery, please Department of the Treasury is soliciting 6 hours for the other reporters. also notify Mr. Wolkow by e-mail comments concerning Treasury Estimated Total Annual Burden ([email protected]), FAX International Capital (TIC) Form BL–2, Hours: 8,930 hours, based on twelve (202–622–2009) or telephone (202–622– Report by Depository Institutions, reporting periods per year. 1276).

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FOR FURTHER INFORMATION CONTACT: including the use of information Foreign Currency Liabilities to Copies of the proposed forms and technologies to automate the collection Foreigners. instructions are available on the of the data; and (e) estimates of capital OMB Control Number: 1505–0020. Treasury’s TIC Forms Web page, or start-up costs of operation, http://www.treas.gov/tic/forms.html. maintenance and purchase of services to Abstract: Form BQ–2 is part of the Requests for additional information provide information. Treasury International Capital (TIC) should be directed to Mr. Wolkow. reporting system, which is required by Dwight Wolkow, law (22 U.S.C. 286f; 22 U.S.C. 3103; E.O. SUPPLEMENTARY INFORMATION: Administrator, International Portfolio Title: Treasury International Capital 10033; 31 CFR 128) and is designed to Investment Data Systems. collect timely information on Form BQ–1. Report by Depository [FR Doc. E8–18539 Filed 8–11–08; 8:45 am] Institutions, Brokers and Dealers of international portfolio capital BILLING CODE 4810–25–P Customers’ U.S. Dollar Claims on movements. Form BQ–2 is a quarterly Foreigners. report that covers the liabilities to and claims on foreigners of banks, other OMB Control Number: 1505–0016. DEPARTMENT OF THE TREASURY Abstract: Form BQ–1 is part of the depository institutions, brokers and Treasury International Capital (TIC) Departmental Offices; Proposed dealers, and their customers’ claims and reporting system, which is required by Collections; Comment Requests liabilities with foreigners, where all law (22 U.S.C. 286f; 22 U.S.C. 3103; E.O. claims and liabilities are denominated 10033; 31 CFR 128) and is designed to ACTION: Notice and request for in foreign currencies. This information collect timely information on comments. is necessary for compiling the U.S. international portfolio capital balance of payments accounts and the movements. This quarterly report filed SUMMARY: The Department of the U.S. international investment position, by depository institutions, brokers and Treasury, as part of its continuing effort and for formulating U.S. international dealers covers their U.S. customers’ to reduce paperwork burdens, invites financial and monetary policies. the general public and other Federal dollar claims vis-a-vis foreign residents. Current Actions: None. We expect to This information is necessary for agencies to comment on revisions of an information collection that are proposed make some clarifications in the compiling the U.S. balance of payments instructions. accounts and the U.S. international for approval by the Office of investment position, and for formulating Management and Budget. The Office of Type of Review: Extension of a U.S. international financial and International Affairs within the currently approved collection. monetary policies. Department of the Treasury is soliciting Affected Public: Business or other for- Current Actions: None. We expect to comments concerning Treasury profit organizations. Form BQ–2 (1505– make some clarifications in the International Capital Form BQ–2, Part 1: 0020). instructions. Report of Foreign Currency Liabilities Estimated Number of Respondents: Type of Review: Extension of a to, and Claims on, Foreigners of 135. currently approved collection. Depository Institutions, Brokers, Affected Public: Business or other for- Dealers, and Their Domestic Customers; Estimated Average Time per profit organizations. Form BQ–1 (1505– Part 2: Report of Customers’ Foreign Respondent: Six and seven/tenths (6.7) 0016). Currency Liabilities to Foreigners. hours per respondent per filing. This Estimated Number of Respondents: DATES: Written comments should be average time varies from 11 hours for 68. received on or before October 14, 2008 the approximately 30 major reporters to Estimated Average Time per to be assured of consideration. 5.5 hours for the other reporters. Respondent: Three and two/tenths (3.2) ADDRESSES: Direct all written comments Estimated Total Annual Burden hours per respondent per filing. This to Dwight Wolkow, International Hours: 3,630 hours, based on four average time varies from 4.5 hours for Portfolio Investment Data Systems, reporting periods per year. the approximately 30 major reporters to Department of the Treasury, Room 5422, Request for Comments: Comments 2.3 hours for the other reporters. 1500 Pennsylvania Avenue, NW., Estimated Total Annual Burden submitted in response to this notice will Washington, DC 20220. In view of be summarized and/or included in the Hours: 882 hours, based on four possible delays in mail delivery, please reporting periods per year. request for Office of Management and also notify Mr. Wolkow by e-mail Budget approval. All comments will Request for Comments: Comments ([email protected]), FAX submitted in response to this notice will become a matter of public record. The (202–622–2009) or telephone (202–622– public is invited to submit written be summarized and/or included in the 1276). request for Office of Management and comments concerning: (a) Whether Budget approval. All comments will FOR FURTHER INFORMATION CONTACT: Form BQ–2 is necessary for the proper become a matter of public record. The Copies of the proposed forms and performance of the functions of the public is invited to submit written instructions are available on the Office, including whether the comments concerning: (a) Whether Treasury’s TIC Forms Web page, information will have practical uses; (b) Form BQ–1 is necessary for the proper http://www.treas.gov/tic/forms.html. the accuracy of the above estimate of the performance of the functions of the Requests for additional information burdens; (c) ways to enhance the Office, including whether the should be directed to Mr. Wolkow. quality, usefulness and clarity of the information will have practical uses; (b) SUPPLEMENTARY INFORMATION: information to be collected; (d) ways to the accuracy of the above estimate of the Titles: Treasury International Capital minimize the reporting and/or record burdens; (c) ways to enhance the Form BQ–2, Part 1: Report of Foreign keeping burdens on respondents, quality, usefulness and clarity of the Currency Liabilities to, and Claims on, including the use of information information to be collected; (d) ways to Foreigners of Depository Institutions, technologies to automate the collection minimize the reporting and/or record Brokers, Dealers, and Their Domestic of the data; and (e) estimates of capital keeping burdens on respondents, Customers; Part 2: Report of Customers’ or start-up costs of operation,

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maintenance and purchase of services to report designed to capture, by to reduce paperwork burdens, invites provide information. instrument and on an aggregate basis, the general public and other Federal remaining maturities of all U.S. dollar agencies to comment on revisions of an Dwight Wolkow, and foreign currency liabilities information collection that are proposed Administrator, International Portfolio (excluding securities) of U.S. resident for approval by the Office of Investment Data Systems. banks, other depository institutions, Management and Budget. The Office of [FR Doc. E8–18540 Filed 8–11–08; 8:45 am] brokers and dealers vis-a-vis foreign International Affairs within the BILLING CODE 4810–25–P residents. This information is necessary Department of the Treasury is soliciting for meeting international data reporting comments concerning Treasury standards and for formulating U.S. International Capital Forms CQ–1 and DEPARTMENT OF THE TREASURY international financial and monetary CQ–2, Financial and Commercial Departmental Offices; Proposed policies. Liabilities to, and Claims on, Collections; Comment Requests Current Actions: None. We expect to Unaffiliated Foreigners. make some clarifications in the DATES: Written comments should be ACTION: Notice and request for instructions. received on or before October 14, 2008 Type of Review: Extension of a comments. to be assured of consideration. currently approved collection. SUMMARY: The Department of the Affected Public: Business or other for- ADDRESSES: Direct all written comments Treasury, as part of its continuing effort profit organizations. Form BQ–3 (1505– to Dwight Wolkow, International to reduce paperwork burdens, invites 0189). Portfolio Investment Data Systems, the general public and other Federal Estimated Number of Respondents: Department of the Treasury, Room 5422, agencies to comment on revisions of an 98. 1500 Pennsylvania Avenue, NW., information collection that are proposed Estimated Average Time per Washington, DC 20220. In view of for approval by the Office of Respondent: Four (4) hours per possible delays in mail delivery, please Management and Budget. The Office of respondent per filing. also notify Mr. Wolkow by e-mail International Affairs within the Estimated Total Annual Burden ([email protected]), FAX Department of the Treasury is soliciting Hours: 1,570 hours, based on 4 reporting (202–622–2009) or telephone (202–622– comments concerning Treasury periods per year. 1276). Request for Comments: Comments International Capital (TIC) Form BQ–3, FOR FURTHER INFORMATION CONTACT: Report of Maturities of Selected submitted in response to this notice will be summarized and/or included in the Copies of the proposed forms and Liabilities of Depository Institutions, instructions are available on the Brokers and Dealers to Foreigners. request for Office of Management and Budget approval. All comments will Treasury’s TIC Web page for forms, DATES: Written comments should be become a matter of public record. The http://www.treas.gov/tic/forms.html. received on or before October 14, 2008 Requests for additional information to be assured of consideration. public is invited to submit written comments concerning: (a) Whether should be directed to Mr. Wolkow. ADDRESSES: Direct all written comments Form BQ–3 is necessary for the proper SUPPLEMENTARY INFORMATION: to Dwight Wolkow, International performance of the functions of the Portfolio Investment Data Systems, Title: Treasury International Capital Office, including whether the Form CQ–1, Financial Liabilities to, and Department of the Treasury, Room 5422, information will have practical uses; (b) 1500 Pennsylvania Avenue, NW., Claims on, Unaffiliated Foreigners; and the accuracy of the above estimate of the Treasury International Capital Form Washington, DC 20220. In view of burdens; (c) ways to enhance the possible delays in mail delivery, please CQ–2, Commercial Liabilities to, and quality, usefulness and clarity of the Claims on, Unaffiliated Foreigners. also notify Mr. Wolkow by e-mail information to be collected; (d) ways to ([email protected]), FAX OMB Number: 1505–0024 minimize the reporting and/or record Abstract: Forms CQ–1 and CQ–2 are (202–622–2009) or telephone (202–622– keeping burdens on respondents, 1276). part of the Treasury International including the use of information Capital (TIC) reporting system, which is FOR FURTHER INFORMATION CONTACT: technologies to automate the collection Copies of the proposed forms and required by law (22 U.S.C. 286f; 22 of the data; and (e) estimates of capital U.S.C. 3103; EO 10033; 31 CFR 128), instructions are available on the or start-up costs of operation, Treasury’s TIC Forms Web page, and is designed to collect timely maintenance and purchase of services to information on international portfolio http://www.treas.gov/tic/forms.html. provide information. Requests for additional information capital movements. Forms CQ–1 and should be directed to Mr. Wolkow. Dwight Wolkow, CQ–2 are quarterly reports filed by nonbanking and non-securities broker SUPPLEMENTARY INFORMATION: Administrator, International Portfolio Titles: Treasury International Capital Investment Data Systems. and dealer enterprises in the U.S. to Form BQ–3, Report of Maturities of [FR Doc. E8–18541 Filed 8–11–08; 8:45 am] report their international portfolio Selected Liabilities of Depository BILLING CODE 4810–25–P transactions with unaffiliated foreigners. Institutions, Brokers and Dealers to This information is necessary for Foreigners. compiling the U.S. balance of payments OMB Control Number: 1505–0189. DEPARTMENT OF THE TREASURY accounts and the U.S. international Abstract: Form BQ–3 is part of the investment position, and for use in Treasury International Capital (TIC) Departmental Offices; Proposed formulating U.S. international financial reporting system, which is required by Collections; Comment Requests and monetary policies. Current Actions: None. We expect to law (22 U.S.C. 286f; 22 U.S.C. 3103; E.O. ACTION: Notice and request for make some clarifications in the 10033; 31 CFR 128) and is designed to comments. collect timely information on instructions. international portfolio capital SUMMARY: The Department of the Type of Review: Extension of a movements. Form BQ–3 is a quarterly Treasury, as part of its continuing effort currently approved collection.

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Affected Public: Business or other for- public comments on its proposal to Description: The OTS reviews the profit organizations. Forms CQ–1 and extend this information collection. information to determine whether the CQ–2 (1505–0024). DATES: Submit written comments on or request of savings associations is in Estimated Number of Respondents: before October 14, 2008. accordance with existing statutory and 210. ADDRESSES: Send comments, referring to regulatory criteria. In addition, the Estimated Average Time per the collection by title of the proposal or information provides the OTS with a Respondent: Six and one/half (6.5) by OMB approval number, to mechanism for monitoring capital hours per respondent per filing. Information Collection Comments, Chief distributions since these distributions Estimated Total Annual Burden Counsel’s Office, Office of Thrift can reduce an association’s capital and Hours: 5,410 hours, based on 4 reporting Supervision, 1700 G Street, NW., perhaps places it at risk. periods per year. Washington, DC 20552; send a facsimile Type of Review: Extension of a Request for Comments: Comments transmission to (202) 906–6518; or send currently approved collection. Affected Public: Businesses or other submitted in response to this notice will an e-mail to for-profit. be summarized and/or included in the [email protected]. Estimated Number of Respondents: request for Office of Management and OTS will post comments and the related 495. index on the OTS Internet site at http:// Budget approval. All comments will Estimated Number of Responses: 495. become a matter of public record. The www.ots.treas.gov. In addition, Estimated Frequency of Response: public is invited to submit written interested persons may inspect Other; as required. comments concerning: (a) Whether comments at the Public Reading Room, Estimated Total Burden: 546 hours. Forms CQ–1 and CQ–2 are necessary for 1700 G Street, NW. and by appointment. Clearance Officer: Ira L. Mills, (202) the proper performance of the functions To make an appointment, call (202) 906–6531, Office of Thrift Supervision, of the Office, including whether the 906–5922, send an e-mail to 1700 G Street, NW., Washington, DC information will have practical uses; (b) [email protected], or send a 20552. the accuracy of the above estimate of the facsimile transmission to (202) 906– Dated: August 6, 2008. burdens; (c) ways to enhance the 7755. Deborah Dakin, quality, usefulness and clarity of the FOR FURTHER INFORMATION CONTACT: You information to be collected; (d) ways to Senior Deputy Chief Counsel, Regulations and can request additional information Legislation Division. minimize the reporting and/or record about this proposed information [FR Doc. E8–18543 Filed 8–11–08; 8:45 am] keeping burdens on respondents, collection from Patricia D. Goings, (202) including the use of information 906–5668, Office of Thrift Supervision, BILLING CODE 6720–01–P technologies to automate the collection 1700 G Street, NW., Washington, DC of the data; and (e) estimates of capital 20552. or start-up costs of operation, DEPARTMENT OF THE TREASURY SUPPLEMENTARY INFORMATION: OTS may maintenance and purchase of services to Office of Thrift Supervision provide information. not conduct or sponsor an information collection, and respondents are not Dwight Wolkow, required to respond to an information Application Processing Fees Administrator, International Portfolio collection, unless the information AGENCY: Office of Thrift Supervision Investment Data Systems. collection displays a currently valid (OTS), Treasury. [FR Doc. E8–18542 Filed 8–11–08; 8:45 am] OMB control number. As part of the ACTION: Notice and request for comment. BILLING CODE 4810–25–P approval process, we invite comments on the following information collection. SUMMARY: The Department of the Comments should address one or Treasury, as part of its continuing effort DEPARTMENT OF THE TREASURY more of the following points: to reduce paperwork and respondent a. Whether the proposed collection of burden, invites the general public and Office of Thrift Supervision information is necessary for the proper other Federal agencies to comment on performance of the functions of OTS; proposed and continuing information Capital Distribution b. The accuracy of OTS’s estimate of collections, as required by the the burden of the proposed information AGENCY: Office of Thrift Supervision Paperwork Reduction Act of 1995, 44 (OTS), Treasury. collection; U.S.C. 3507. The Office of Thrift c. Ways to enhance the quality, Supervision within the Department of ACTION: Notice and request for comment. utility, and clarity of the information to the Treasury will submit the proposed be collected; information collection requirement SUMMARY: The Department of the d. Ways to minimize the burden of the Treasury, as part of its continuing effort described below to the Office of information collection on respondents, Management and Budget (OMB) for to reduce paperwork and respondent including through the use of burden, invites the general public and review, as required by the Paperwork information technology. Reduction Act. Today, OTS is soliciting other Federal agencies to comment on We will summarize the comments proposed and continuing information public comments on its proposal to that we receive and include them in the extend this information collection. collections, as required by the OTS request for OMB approval. All DATES: Paperwork Reduction Act of 1995, 44 comments will become a matter of Submit written comments on or U.S.C. 3507. The Office of Thrift public record. In this notice, OTS is before October 14, 2008. Supervision within the Department of soliciting comments concerning the ADDRESSES: Send comments, referring to the Treasury will submit the proposed following information collection. the collection by title of the proposal or information collection requirement Title of Proposal: Capital Distribution. by OMB approval number, to described below to the Office of OMB Number: 1550–0059. Information Collection Comments, Chief Management and Budget (OMB) for Form Numbers: 1583. Counsel’s Office, Office of Thrift review, as required by the Paperwork Regulation Requirement: 12 CFR part Supervision, 1700 G Street, NW., Reduction Act. Today, OTS is soliciting 563. Washington, DC 20552; send a facsimile

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transmission to (202) 906–6518; or send regulating savings associations and their ADDRESSES: Send comments, referring to an e-mail to affiliates. the collection by title of the proposal or [email protected]. An institution must submit a fee with by OMB approval number, to OTS will post comments and the related certain applications, including Information Collection Comments, Chief index on the OTS Internet site at Securities and Exchange Act of 1934 Counsel’s Office, Office of Thrift http://www.ots.treas.gov. In addition, filings, notices, and requests (hereafter Supervision, 1700 G Street, NW., interested persons may inspect collectively referred to as Washington, DC 20552; send a facsimile comments at the Public Reading Room, ‘‘applications’’), before such transmission to (202) 906–6518; or send 1700 G Street, NW. and by appointment. applications will be accepted for an e-mail to To make an appointment, call (202) processing by OTS. 12 CFR part 502.5. [email protected]. 906–5922, send an e-mail to The institution is required to state how OTS will post comments and the related [email protected], or send a it calculates the appropriate fee, in index on the OTS Internet Site at facsimile transmission to (202) 906– accordance with OTS’s schedule. 12 http://www.ots.treas.gov. In addition, 7755. CFR part 502.70. The most recent fee interested persons may inspect FOR FURTHER INFORMATION CONTACT: You schedule was published in Thrift comments at the Public Reading Room, can request additional information Bulletin TB 48–21 dated May 28, 2004. 1700 G Street, NW. and by appointment. about this proposed information Type of Review: Extension of a To make an appointment, call (202) collection from Patricia D. Goings, (202) currently approved collection. 906–5922, send an e-mail to Affected Public: Businesses or other 906–5668, Office of Thrift Supervision, [email protected], or send a for-profit. 1700 G Street, NW., Washington, DC facsimile transmission to (202) 906– Estimated Number of Respondents: 20552. 7755. 1,477. FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: OTS may Estimated Number of Responses: You not conduct or sponsor an information 1,477. can request additional information collection, and respondents are not Estimated Frequency of Response: about this proposed information required to respond to an information Other; as required. collection from Patricia D. Goings, (202) collection, unless the information Estimated Total Burden: 53 hours. 906–5668, Office of Thrift Supervision, collection displays a currently valid Clearance Officer: Ira L. Mills, (202) 1700 G Street, NW., Washington, DC OMB control number. As part of the 906–6531, Office of Thrift Supervision, 20552. approval process, we invite comments 1700 G Street, NW., Washington, DC SUPPLEMENTARY INFORMATION: OTS may on the following information collection. 20552. not conduct or sponsor an information Comments should address one or Dated: August 6, 2008. collection, and respondents are not more of the following points: Deborah Dakin, required to respond to an information a. Whether the proposed collection of Senior Deputy Chief Counsel, Regulations and collection, unless the information information is necessary for the proper Legislation Division. collection displays a currently valid performance of the functions of OTS; [FR Doc. E8–18544 Filed 8–11–08; 8:45 am] OMB control number. As part of the b. The accuracy of OTS’s estimate of approval process, we invite comments BILLING CODE 6720–01–P the burden of the proposed information on the following information collection. collection; Comments should address one or c. Ways to enhance the quality, DEPARTMENT OF THE TREASURY more of the following points: utility, and clarity of the information to a. Whether the proposed collection of be collected; Office of Thrift Supervision information is necessary for the proper d. Ways to minimize the burden of the performance of the functions of OTS; information collection on respondents, Management Official Interlocks b. The accuracy of OTS’s estimate of including through the use of the burden of the proposed information information technology. AGENCY: Office of Thrift Supervision collection; We will summarize the comments (OTS), Treasury. c. Ways to enhance the quality, that we receive and include them in the ACTION: Notice and request for comment. utility, and clarity of the information to OTS request for OMB approval. All be collected; SUMMARY: comments will become a matter of The Department of the d. Ways to minimize the burden of the public record. In this notice, OTS is Treasury, as part of its continuing effort information collection on respondents, soliciting comments concerning the to reduce paperwork and respondent including through the use of following information collection. burden, invites the general public and information technology. Title of Proposal: Application other Federal agencies to comment on We will summarize the comments Processing Fees. proposed and continuing information that we receive and include them in the OMB Number: 1550–0053. collections, as required by the OTS request for OMB approval. All Form Numbers: N/A. Paperwork Reduction Act of 1995, 44 comments will become a matter of Regulation Requirement: 12 CFR part U.S.C. 3507. The Office of Thrift public record. In this notice, OTS is 502. Supervision within the Department of soliciting comments concerning the Description: Pursuant to Section 9 of the Treasury will submit the proposed following information collection. the Home Owners’ Loan Act, 12 U.S.C. information collection requirement Title of Proposal: Management 1467, the Director of the OTS is described below to the Office of Official Interlocks. authorized to charge assessments to Management and Budget (OMB) for OMB Number: 1550–0051. recover the costs of examining savings review, as required by the Paperwork Form Numbers: N/A. associations and their affiliates, to Reduction Act. Today, OTS is soliciting Regulation Requirement: 12 CFR part charge fees to recover the costs of public comments on its proposal to 563f. processing applications and other extend this information collection. Description: The purpose of the filings, and to charge fees to cover OTS’s DATES: Submit written comments on or Depository Institution Management direct and indirect expenses in before October 14, 2008. Interlocks Act is to foster competition

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by generally prohibiting a management burden, invites the general public and b. The accuracy of OTS’s estimate of official from serving two unaffiliated other Federal agencies to comment on the burden of the proposed information depository organizations in situations proposed and continuing information collection; where the management interlock would collections, as required by the c. Ways to enhance the quality, likely have an anticompetitive effect. 12 Paperwork Reduction Act of 1995, 44 utility, and clarity of the information to U.S.C. 3201–3208. This applies to U.S.C. 3507. The Office of Thrift be collected; Supervision within the Department of service as a management official of an d. Ways to minimize the burden of the the Treasury will submit the proposed institution, savings and loan information collection on respondents, information collection requirement association, and affiliates of either. including through the use of OTS regulations set forth several described below to the Office of information technology. interlocking relationships that are Management and Budget (OMB) for prohibited. 12 CFR part 563f. Generally, review, as required by the Paperwork We will summarize the comments a management official of a depository Reduction Act. Today, OTS is soliciting that we receive and include them in the institution or depository holding public comments on its proposal to OTS request for OMB approval. All company may not serve as a extend this information collection. comments will become a matter of management official of an unaffiliated DATES: Submit written comments on or public record. In this notice, OTS is depository institution or depository before October 14, 2008. soliciting comments concerning the following information collection. holding company if the entities in ADDRESSES: Send comments, referring to question (or a depository institution the collection by title of the proposal or Title of Proposal: Application for affiliate thereof) have offices in the same by OMB approval number, to Issuance of Subordinated Debt community or metropolitan statistical Information Collection Comments, Chief Securities/Notice of Issuance of area or are of a certain asset size. Counsel’s Office, Office of Thrift Subordinated Debt or Mandatorily Type of Review: Extension of a Supervision, 1700 G Street, NW., Redeemable Preferred Stock. currently approved collection. Washington, DC 20552; send a facsimile OMB Number: 1550–0030. Affected Public: Businesses or other transmission to (202) 906–6518; or send Form Numbers: 1344 and 1561. for-profit. an e-mail to Estimated Number of Respondents: Regulation Requirement: 12 CFR part [email protected]. 829. 563.81. OTS will post comments and the related Estimated Number of Responses: 829. Description: The information index on the OTS Internet Site at http:// Estimated Frequency of Response: On collection provides the OTS with www.ots.treas.gov. In addition, occasion. necessary details to determine if the interested persons may inspect Estimated Total Burden: 4,235 hours. proposed issuance of securities will comments at the Public Reading Room, Clearance Officer: Ira L. Mills, (202) benefit the savings association or create 1700 G Street, NW., by appointment. To 906–6531, Office of Thrift Supervision, unreasonable risks. If the information make an appointment, call (202) 906– 1700 G Street, NW., Washington, DC required were not collected, the OTS 5922, send an e-mail to 20552. would not be able to properly evaluate [email protected], or send a Dated: August 5, 2008. whether the request to issue securities facsimile transmission to (202) 906– conforms to the applicable statutory and Deborah Dakin, 7755. Senior Deputy Chief Counsel, Regulations and regulatory requirements. Legislation Division. FOR FURTHER INFORMATION CONTACT: You Type of Review: Extension of a [FR Doc. E8–18545 Filed 8–11–08; 8:45 am] can request additional information currently approved collection. about this proposed information BILLING CODE 6720–01–P collection from Patricia D. Goings (202) Affected Public: Businesses or other 906–5668, Office of Thrift Supervision, for-profit. Estimated Number of Respondents: 7. DEPARTMENT OF THE TREASURY 1700 G Street, NW., Washington, DC 20552. Estimated Number of Responses: 7. Office of Thrift Supervision SUPPLEMENTARY INFORMATION: OTS may Estimated Frequency of Response: On not conduct or sponsor an information occasion. Application for Issuance of collection, and respondents are not Estimated Total Burden: 7 hours. Subordinated Debt Securities/Notice of required to respond to an information Issuance of Subordinated Debt or Clearance Officer: Ira L. Mills, (202) collection, unless the information Mandatorily Redeemable Preferred 906–6531, Office of Thrift Supervision, collection displays a currently valid Stock 1700 G Street, NW., Washington, DC OMB control number. As part of the 20552. AGENCY: Office of Thrift Supervision approval process, we invite comments Dated: August 5, 2008. (OTS), Treasury. on the following information collection. Deborah Dakin, ACTION: Notice and request for comment. Comments should address one or more of the following points: Senior Deputy Chief Counsel, Regulations and SUMMARY: The Department of the a. Whether the proposed collection of Legislation Division. Treasury, as part of its continuing effort information is necessary for the proper [FR Doc. E8–18546 Filed 8–11–08; 8:45 am] to reduce paperwork and respondent performance of the functions of OTS; BILLING CODE 6720–01–P

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Part II

Department of the Interior Fish and Wildlife Service

50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Devils River Minnow; Final Rule

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DEPARTMENT OF THE INTERIOR endangered/. More detailed information the proposed rule and/or draft economic on Devils River minnow biology and analysis during these two comment Fish and Wildlife Service ecology that is directly relevant to the periods. designation of critical habitat is During the first comment period, we 50 CFR Part 17 discussed under the Primary received five comments directly [FWS–R2–ES–2008–0018; 92210–1117– Constituent Elements section below. addressing the proposed critical habitat 0000–B4] designation. During the second Previous Federal Actions comment period, we received 19 written RIN 1018–AV25 The Devils River minnow was listed comments (one was received between as threatened on October 20, 1999 (64 the first and second comment periods) Endangered and Threatened Wildlife FR 56596). Critical habitat was not and 10 verbal comments made at the and Plants; Designation of Critical designated for this species at the time of public hearing addressing the proposed Habitat for the Devils River Minnow listing (64 FR 56606). On October 5, critical habitat designation or the draft AGENCY: Fish and Wildlife Service, 2005, the Forest Guardians, Center for economic analysis. We received no Interior. Biological Diversity, and Save Our comments from the State of Texas or Springs Alliance filed suit against the ACTION: Final rule. other Federal agencies beyond those Service for failure to designate critical provided by individuals as part of the SUMMARY: We, the U.S. Fish and habitat for this species (Forest peer review process. All substantive Wildlife Service (Service), designate Guardians et al. v. Hall 2005). On June information provided during both critical habitat for the Devils River 28, 2006, a settlement was reached that public comment periods has been either minnow (Dionda diaboli) under the requires the Service to re-evaluate our incorporated directly into this final Endangered Species Act of 1973, as original prudency determination. The determination or addressed below. settlement stipulated that, if prudent, a amended (Act). In total, approximately Peer Review 26.5 stream kilometers (km) (16.5 stream proposed rule would be submitted to miles (mi)) are within the boundaries of the Federal Register for publication on In accordance with our policy the critical habitat designation. The or before July 31, 2007, and a final rule published on July 1, 1994 (59 FR critical habitat is located in streams in by July 31, 2008. On July 31, 2007, we 34270), we solicited expert opinions Val Verde and Kinney Counties, Texas. published a proposed rule to designate from seven knowledgeable individuals DATES: This final rule becomes effective critical habitat for the Devils River with scientific expertise that included on September 11, 2008. minnow (72 FR 41679). We solicited familiarity with the species, the data and comments from the public on geographic region in which the species ADDRESSES: This final rule and the final the proposed rule. The comment period occurs, and conservation biology economic analysis are available on the opened on July 31, 2007, and closed on principles. During the first comment Internet at http://www.regulations.gov October 1, 2007. On February 7, 2008, period, we received a response from all and http://www.fws.gov/southwest/es/ we published a notice announcing the seven peer reviewers from which we AustinTexas/. Supporting availability of the draft economic requested comments. documentation we used in preparing analysis, a public hearing, and the We reviewed all comments received this final rule will be available for reopening of the public comment period from the public and the peer reviewers public inspection, by appointment, (73 FR 7237). A public hearing was held for substantive issues and new during normal business hours, at the in Del Rio on February 27, 2008. This information regarding the designation of U.S. Fish and Wildlife Service, Austin comment period closed on March 10, critical habitat for Devils River minnow, Ecological Services Field Office, 10711 2008. For more information on previous and we address them in the following Burnet Road, Suite 200, Austin, TX Federal actions concerning the Devils summary. 78758; telephone 512–490–0057; River minnow, refer to the final listing facsimile 512–490–0974. rule published in the Federal Register Peer Reviewer Comments FOR FURTHER INFORMATION CONTACT: on October 20, 1999 (64 FR 56596). (1) Comment: The rule should Adam Zerrenner, Field Supervisor, summarize the efforts to locate Austin Ecological Services Field Office Summary of Comments and additional Devils River minnow habitats (see ADDRESSES section). Persons who Recommendations in other nearby streams and discuss the use a telecommunications device for the We requested comments from the potential that additional habitats exist. deaf (TDD) may call the Federal public on the proposed designation of Our Response: This information is Information Relay Service (FIRS) at critical habitat for the Devils River available in the Range discussion in the 800–877–8339, 7 days a week and 24 minnow during two comment periods. ‘‘Criteria Used To Identify Critical hours a day. The first comment period associated Habitat’’ section below. There have been SUPPLEMENTARY INFORMATION: with the publication of the proposed efforts to locate the Devils River rule (72 FR 41679) opened on July 31, minnow outside of its known range, Background 2007, and closed on October 1, 2007. although those efforts have been limited It is our intent to discuss only those We also requested comments on the by opportunity and access to some topics directly relevant to the proposed critical habitat designation private lands. The rule states that while designation of critical habitat in this and associated draft economic analysis there could be additional stream final rule. For more information on the during a comment period that opened segments within the known range that Devils River minnow, refer to the February 7, 2008, and closed on March may be found to be occupied during proposed critical habitat rule published 10, 2008 (73 FR 7237). We held a public future surveys, the best available in the Federal Register on July 31, 2007 hearing in Del Rio on February 27, 2008; information at this time supports only (72 FR 41679), the final listing rule about 65 individuals were present. We five stream segments (Devils River, San published in the Federal Register on contacted appropriate Federal, State, Felipe Creek, Sycamore Creek, Pinto October 20, 1999 (64 FR 56596), or the and local agencies; scientific Creek, and Las Moras Creek) known to 2005 Devils River Minnow Recovery organizations; and other interested be or to have been occupied by Devils Plan available online at www.fws.gov/ parties and invited them to comment on River minnow in the United States.

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(2) Comment: The primary constituent studies where Devils River minnows Our Response: There have been water elements (PCEs) should more explicitly have been collected. There are often quality concerns expressed for San and strongly address the need for much higher velocities in the streams; Felipe Creek due to the urbanization of spring-fed baseflow, perhaps under PCE however, the best available information the watershed. There also may have 5 or as its own PCE. It may be indicates that the velocity range been previous effects from ranching appropriate to include the language identified in the PCEs reflects the activities on water quality in the creeks, noting a percentage of normal (i.e., understanding that the species is most particularly in the past when sheep and average) monthly baseflow that should often found in slow to moderate water goat grazing was a more common land be sustained as a Devils River minnow velocities. use. However, we found no data to PCE. (5) Comment: The PCE (2) for water support that water quality is Our Response: Our approach in quality can be challenged in that not significantly impacted by current describing the PCEs is to identify the enough data have been measured ranching activities (Service 2005, p. 1.7– physical and biological features that are regarding temperature, dissolved 4). essential to the conservation of the oxygen, conductivity, and salinity to set (8) Comment: The final rule should species and which may require special those levels. It is possible that areas state that maintaining water management considerations or with physical and chemical conditions temperatures within acceptable ranges protections. In this case the PCEs are the other than those listed could support necessitates maintaining adequate range of water depths and velocities the Devils River minnow. aquifer protection and spring flows to needed by the species. Maintenance of Our Response: We recognize that the streams. spring flows is described in this final PCE for water quality parameters is Our Response: We concur. The final rule as the special management needed based on limited observational data. rule was revised to reflect this comment to provide the PCEs described, rather However, we used the best available in the ‘‘Water Quality’’ section below. than a PCE itself. The Service does not information to determine appropriate We believe that management of have sufficient information to identify water quality elements. To the extent groundwater aquifers is important to an estimate of specific spring flow, or practicable, PCEs are intended to be maintaining spring flows and is percentages of flow, as required habitat quantifiable and measurable. We interrelated to maintaining water quality conditions for the Devils River minnow. purposefully include a broad range of conditions, particularly water (3) Comment: The proposed rule notes conditions to recognize that data are not temperature in streams. that if groundwater aquifers are pumped sufficient to identify a more narrow (9) Comment: The data presented do beyond their ability to sustain levels range of parameters. The ranges not support an unequivocal statement supporting spring flows these streams provided represent the best available that vegetation must be present for will no longer provide habitat for the information. Devils River minnow to be successful. Devils River minnow. This is true (6) Comment: There are potential The Devils River minnow appears to unless water was pumped into the consequences to the species from survive in other areas without streams from wells. increased sedimentation and turbidity, vegetation. Our Response: PCE 2 is intentionally via urban development in the watershed Our Response: We recognize that worded to include ‘‘permanent, natural and the presence of abundant armored Devils River minnow have been flows from groundwater spring and catfish (Hypostomus sp.) (disturbing collected in areas of streams without seeps.’’ We believe the maintenance of substrate during feeding and excavation significant vegetation. However, the natural stream flows is the best of shelter). These concerns should be majority of published information on opportunity to ensure adequate habitat extracted from a list of pollutants, the habitat use of the species for the conservation of the Devils River which included suspended sediments, (summarized in the ‘‘Space for minnow. Water provided to streams and identified individually. You should Individual and Population Growth, through artificial means, such as include a discussion of water clarity Normal Behavior, and Cover’’ section groundwater pumping, could eventually under the PCE for water depth and below) leads us to believe that the best fail due to mechanical or human error velocity. scientific data available are sufficient to and, therefore, is not a good substitute Our Response: We agree that turbidity warrant inclusion of aquatic vegetation for natural stream flows. In addition, from increased suspended solids and as a PCE to provide important cover for pumping water to supply streams is sedimentation of stream bottoms are the species. We have clarified our likely counterintuitive to the need to important habitat concerns for Devils discussion in that section to reflect the maintain groundwater levels high River minnow. We have revised the fact that Devils River minnow have also enough to sustain natural spring flows final rule (see ‘‘Water Quality’’ section been collected in areas without aquatic from groundwater aquifers. Stream below) to specifically mention this vegetation. flows are essential for the conservation concern. We did not see a need to (10) Comment: How can the special of the species, and assuring a high modify the language in the PCEs as we management needs identified in the probability of survival depends on believe that listing suspended sediments proposed rule and the recovery plan be natural flow conditions. as a pollutant is sufficient to capture implemented without access through (4) Comment: The range of stream these concerns. private property to all stream segments velocities described in the PCE (1a) for (7) Comment: While the aquifers that and their supporting watershed? Devils River minnow (0.3 to 1.3 feet/ support the critical habitat streams are Our Response: Most of the streams second (9 to 40 cm/second)) may not be of high quality and free of pollution, the where the Devils River minnow occurs high enough to reflect conditions that same can’t be said for the water quality flow through private lands. The are typically measured in Las Moras of the creeks. Livestock and ranching designation of critical habitat (or the Creek (greater than 3 feet/second), activities occur throughout this area species’ status as federally threatened) although baseflow velocities can be in except along San Felipe Creek. Harrel does not provide a right for anyone to the 1 foot/second range. (1978) notes that in the Devils River, access private property without Our Response: The water velocities larger deep ponds often contain silt landowner permission. However, identified as a part of the PCEs were composed of detritus and sheep and through cooperative relationships, the determined based on observational goat manure washed in by rains. Service and Texas Parks and Wildlife

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Department (TPWD) have had information in the ‘‘Special Sycamore Creek and Las Moras Creek consistent support from private Management’’ section. under section 4(b)(2) of the Act. For the landowners to provide access to various (14) Comment: Six of the seven peer full analysis, see the ‘‘Exclusions Under streams to further conservation of the reviewers commented on our specific Section 4(b)(2) of the Act’’ section Devils River minnow. We intend to question of whether or not Las Moras below. continue to work with private Creek and Sycamore Creek are essential (15) Comment: The rule should landowners to seek their voluntary to the conservation of the species and recognize that, while not included in cooperation using incentive-based should be included in the critical the lateral extent of the critical habitat, programs, such as Partners for Fish and habitat designation. Three reviewers the condition of the riparian buffer Wildlife, for conserving this species and expressed specific support for including beyond the normal wetted channel is other listed species in Texas. Las Moras and Sycamore creeks in the important to the maintenance of water (11) Comment: Discussions regarding critical habitat designation for the quality and low levels of fine nonnative species should include following reasons: (1) To maintain sedimentation. nonnative plants, such as hydrilla suitable habitat within its range because Our Response: We agree that healthy (Hydrilla verticillata), water hyacinth if left undesignated, the PCEs currently riparian areas of native vegetation are (Eichhornia spp.), giant river cane present will fall out of range and important to maintaining the PCEs. For (Arundinaria gigantea), and salt cedar potential use for the recovery of the example, impacts to riparian areas that (Tamarix spp.), because they can impact species will be lost; (2) to protect reduce native vegetation may lead to hydrology and food sources for Devils genetic diversity within the range of the increased runoff of pollutants into the River minnow. species; (3) including them may be stream, thus degrading water quality Our Response: The extent of potential important for future recovery efforts, and indirectly affecting the designated impacts of nonnative plants to fish such based on metapopulation theory that critical habitat. This is further discussed as the Devils River minnow is not well unoccupied patches are not less in the ‘‘Application of the Adverse documented. However, we recognize the important than occupied ones; (4) not Modification Standard’’ section. Unlike concern that nonnative plants could including them as ecologically some other stream fishes, the Devils affect Devils River minnow populations, significant stream segments would be River minnow is not known to be and we have revised the final rule to possibly detrimental to the species over dependent on high flow events or use reflect these concerns. We did not time; and (5) if the creeks are flooded habitats in overbank areas for include salt cedar as a concern because determined not to provide essential reproduction or rearing of young. we are not aware that it is present, or habitat elements, they could be removed Therefore, the floodplain is not known likely to become established, in the from the designation later or the habitat to contain the features essential for the range of Devils River minnow. It is well could be improved by future conservation of the Devils River established in nearby drainages on the management. minnow and is not included in this final Pecos River and Rio Grande and has had The other three reviewers did not call critical habitat designation. See the ample opportunity to become for the inclusion of Las Moras and discussion in ‘‘Criteria Used To Identify established in the Devils River and Sycamore creeks in the designation. Critical Habitat, f. Lateral Extent’’ drainages farther east. We assume that However, two reviewers stressed that section. conditions (soil differences and limited recovery of the Devils River minnow (16) Comment: No studies cited in the floodplains) are not conducive to salt would include restoring the species to proposed rule have shown that the cedar establishment. these streams to maintain genetic Devils River minnow is tied to spring- (12) Comment: Another concern diversity and population redundancy mouth habitat. In fact, several studies related to nonnative species is the and encouraged us to continue to work point out that the species does not use possible predation on Devils River on these efforts. One reviewer stated such habitat but prefers more minnow by armored catfish. Information that Sycamore and Las Moras creeks do downstream areas of the streams away was provided indicating the armored not have the necessary continuous flows from the immediate outfall areas. This catfish in aquarium environments will required to maintain a population of the appears to be true in all three stream prey on other fish. Devils River minnow and would sections chosen for critical habitat. The Our Response: We have included this support their inclusion if there were data do not support the inclusion of the information in the final rule in the management options in place to spring heads in critical habitat. ‘‘Habitat Protected From Disturbance or maintain sufficient residual habitat Our Response: We disagree. While Representative of the Historic during droughts. Devils River minnow can be common in Geographical and Ecological Our Response: In reviewing the areas just a few meters downstream of Distribution of a Species’’ section. comments received on this issue and the spring heads, the best available (13) Comment: Petroleum exploration Recovery Plan for the Devils River information suggests the PCEs and the and development should be either minnow, we determined that Sycamore fish are also found at the beginning of added as one additional management and Las Moras creeks are essential to the the streams in spring heads. Numerous consideration for the Devils River conservation of the Devils River collections have listed the springs population or be specifically recognized minnow. Restoring populations in themselves as locations for collecting in the discussion of pollution. While Sycamore and Las Moras creeks are Devils River minnow (see literature there have fortunately been no known important recovery goals for the species. reviewed in Service 2005, p 1.4.1–1.4.5). impacts to date, inappropriate site For additional discussion of this topic, development and drilling practices including relevant information from the Comments From the Public associated with current exploration Recovery Plan, see the ‘‘Criteria Used To (17) Comment: The statement that the activities have the potential to seriously Identify Critical Habitat’’ section below. Devils River minnow does not occupy impact water quality of the Devils River However, upon further review, we Sycamore Creek is unsubstantiated. and, hence, to degrade this critical determined that the benefits of Opportunities to sample for the species habitat. excluding these two creeks outweigh the are very limited. Our Response: We agree and the final benefits of including them as critical Our Response: We did not intend to rule has been updated to include this habitat. Therefore, we have excluded make a conclusive determination that

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the Devils River minnow does not occur (Micropterus dolomieu) is the only minnow or its habitat (such as a change in Sycamore Creek. For the purpose of significant change in the Devils River in stream flow rates), they are required critical habitat designation, we and has caused many changes in the under section 7 of the Act to consult considered a stream segment to be structure of the fish community. The with the Service. Since we are occupied at the time of listing if Devils Devils River should not be designated as designating final critical habitat in areas River minnow has been found to be critical habitat because the only factor presently occupied by the fish, this present by species experts within the affecting fish populations is being requirement to consult would exist even last 10 years, or where the stream propagated and enhanced by Texas if we were not designating critical segment is directly connected to a Parks and Wildlife Department (TPWD). habitat. segment with documented occupancy Our Response: We do not know the (22) Comment: The proposed rule’s within the last 10 years (see section full extent of specific impacts of the concern for future groundwater ‘‘Criteria Used to Identify Critical smallmouth bass on the Devils River withdrawals is not based on well- Habitat’’ section below). The fish has minnow, but initial research results researched and documented science on not been collected in Sycamore Creek since the listing have not revealed that the connection, if any, between since 1989. We agree that collections are smallmouth bass are an obvious source groundwater withdrawals in Pinto limited and more extensive sampling in of predation on Devils River minnow. Valley and high quality water for the the future may produce additional TPWD manages the smallmouth bass species in Pinto Creek. WaterTexas occurrence information in this fishery in the Devils River but no longer intends to convert groundwater in watershed. stocks the fish in the Devils River or Kinney County historically used for (18) Comment: Stream flow records Amistad Reservoir. It is unknown if a agriculture to municipal use without from the U.S. Geological Survey and change in the management of this increasing the overall amount of water International Boundary and Water fishery would benefit the Devils River pumped. Therefore, the statement in the Commission gauging station show that minnow. proposed critical habitat rule that there Pinto Creek has had ‘‘no flow’’ 59 (20) Comment: Nonnative species, are plans to significantly increase the percent of the time as measured such as the smallmouth bass and amount of groundwater pumped is monthly between 1965 and 1996. Pinto armored catfish, deserve to be protected inaccurate in regard to plans by Creek is an intermittent stream and does even though they are not native. They WaterTexas. should be allowed to thrive for the not supply the permanent, natural flows Our Response: We did not attempt to benefit of the American people, that are a pillar of the critical habitat connect any particular groundwater definition. consistent with the Service’s mission pumping areas, such as Pinto Valley, to Our Response: We recognize that statement. the potential for impact of spring flows portions of Pinto Creek can be Our Response: In the preamble to the intermittent. The location of the stream Act, Congress recognized that in Pinto Creek. Our concerns are gauge was moved to a far upstream endangered and threatened species of consistent with experts in the field, location in 1981 (Ashworth and Stein wildlife and plants ‘‘are of esthetic, such as the statements from studies by 2005, p. 18). Although portions of the ecological, educational, historical, Ashworth and Stein (2005, p. 34): ‘‘Base stream will exhibit no flow during some recreational, and scientific value to the flows of the rivers and streams that flow times of the year, spring flows will Nation and its people.’’ When humans through Kinney and Val Verde Counties continue providing aquatic habitat for introduce species outside of their is [sic] principally generated from the the Devils River minnow at various natural range, they often have numerous springs that occur in the locations downstream. Ashworth and unintended and deleterious effects on headwaters of these surface drainages. Stein (2005, p. 19) found that the Pinto native species. Nonnative species are Sustaining flow in these important Creek is a gaining stream through much one of the primary threats to many rivers and streams is highly dependent of the upper reaches, that is, it increases native species, sometimes contributing on maintaining an appropriate water in volume downstream. A stream gauge to their status as threatened or level in the aquifer systems that feed the at a stationary location does not reflect endangered. In these instances, we place supporting springs. Spring discharge the longitudinal variation in stream a higher value on the conservation of rates can be negatively impacted by flow. We observed this in the summer the native species and often try to nearby wells if the pumping of 2006 when Service biologists visited control the nonnative species to further withdrawals lower the water table in the Pinto Creek and found some reaches of the recovery of the listed species. We aquifer that contributes to the spring. If the creek dry and other locations believe this is consistent with the intent the water-level elevation drops below supported by spring flows. Fish were of the Act. the elevation of the land surface at the concentrated in these spring-fed (21) Comment: Groundwater point of spring discharge the spring will stretches. conservation districts override the ‘‘Rule cease to flow.’’ To account for this variation, PCE 5 of of Capture’’ in groundwater law in The statement in this final critical this critical habitat designation includes Texas. Designating critical habitat is a habitat designation characterizes the areas within stream courses that may be way for the Federal government to gain expected overall trends for groundwater periodically dewatered for short time control over water managed by State or pumping in Kinney County (PWPG periods, during seasonal droughts. local authorities. 2006, pp. 3–13, 4–54) and is not These areas were found to be important Our Response: We recognize that intended to be specific to any particular as connective corridors. The Devils groundwater districts are intended to groundwater development project. River minnow occurs in relatively short allow local management of groundwater (23) Comment: The purpose of the stream segments and, therefore, needs to in place of the rule of capture. Kinney County Groundwater be able to move unimpeded to access Designating critical habitat is not Conservation District (KCGCD) different areas within the stream to intended to supersede surface or Management Plan is to provide complete life history functions and find groundwater management by private, guidance to the KCGCD on how to resources, such as food and cover. local, or State parties. If a Federal manage the groundwater on a (19) Comment: The presence of the agency proposes an action that they sustainable basis and yet beneficially nonnative smallmouth bass determine may affect the Devils River use the groundwater without exploiting

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or adversely affecting the natural flow of County. We recognize that future Statewide section 7 consultation in 2004 the intermittent streams. increases in groundwater pumping that was completed with the Natural Our Response: The KCGCD has could impact habitats of the Devils Resources Conservation Service (NRCS) recently drafted a revised management River minnow, and we encourage the for brush control actions funded under plan including an estimate of future KCGCD to consider habitat of the Devils the 2002 Farm Bill. In that consultation, groundwater permits. Although the plan River minnow and to provide stream we found that, under most was not approved until after the close of flow monitoring efforts to ensure circumstances, brush control within the the public comment period and permitted pumping does not result in range of the Devils River minnow therefore not considered in its entirety loss of stream habitat for Devils River results in beneficial effects by increasing in this final rule, we recognize that the minnow. However, unless there is a groundwater recharge and spring flows, KCGCD intends to manage groundwater Federal nexus with groundwater as emphasized by this comment. on a sustainable basis without adversely pumping activities and a determination (28) Comment: Land-use practices in affecting natural stream flows. We that a specific Federal action may affect the Devils River Unit have changed little understand that KCGCD is still the Devils River minnow, the critical over the past 50 years and are collecting scientific information on the habitat designation will not affect predominantly agrarian (agricultural) for possible effects to stream flows of groundwater pumping. livestock ranching and wildlife hunting. various permitting levels for the aquifers (26) Comment: A limit on impervious Stream flow and quality are not in Kinney County. We look forward to cover within the watersheds of the currently influenced by other outside the results of the KCGCD’s designated streams should be included factors, such as those from municipal, implementation of their management in the section on Special Management commercial, or industrial entities, but plan and we intend to work Considerations and Protections. are only subject to natural variations. cooperatively with the District to also Impervious cover amounts in excess of The Nature Conservancy and the State collect information on the relationship 10 to 15 percent within a watershed are of Texas own large parcels of land along of stream flows and aquatic habitat for known to increase storm runoff, which the river. Barring any unforeseen events, the Devils River minnow, as called for in turn causes the erosion of stream it does not appear that land use in the in the recovery plan (Service 2005, p. beds and the degradation of water region will change significantly. 2.4–4). quality as surface pollutants Our Response: We agree that land use (24) Comment: Current land-use contaminate and warm the water in a has changed little in the Devils River activities authorized by the KCGCD in stream. watershed in recent years, and current the form of groundwater permitting will Our Response: We concur that ranching and wildlife hunting are not allow such an unwarranted and limiting impervious cover in urban considered a threat to the Devils River unprecedented depletion of the areas is one method to reduce future minnow or a concern for its habitat. groundwater resource that Pinto Creek, pollutant inputs to streams from However, we are concerned that the the sole remaining critical habitat for contributing watersheds. The final stream habitat will be affected in the the Devils River minnow in Kinney critical habitat designation does not future by other outside factors. The County, will dry up—if not completely, intend to provide this level of primary long-term potential threat of then certainly to the point of no longer specificity for needed special groundwater withdrawal is not being suitable for the minnow. Any management actions. There may be necessarily related to land use. Other activity that would further threaten other management that could result in land-use considerations include the spring flows in Pinto Creek must not be providing adequate water quality for the potential impacts to water quality from allowed if the loss of the minnow in that Devils River minnow in San Felipe petroleum exploration and creek is to be avoided. Creek. This level of land planning is development. Our Response: We recognize this best done by a local governmental (29) Comment: One commenter stated concern and we encourage the KCGCD authority, such as a city or county. that the Devils River minnow is to carefully consider the impacts on (27) Comment: The proposed rule thriving, particularly in the Devils Pinto Creek of future groundwater use includes brush-clearing in a list of River, under the current voluntary permitting. However, it is important to activities that would significantly cooperation of private landowners, recognize that designation of Pinto increase sediment deposition within the TPWD, and the Service. The species Creek, or the other areas, as critical stream channel. This statement, taken does not now satisfy the definition for habitat for the Devils River minnow has out of context, is erroneous. Research an endangered or even threatened no regulatory effect on non-Federal has shown that brush control can lead species under the Endangered Species actions, such as permitting by a local to positive environmental benefits, Act (16 U.S.C. 1531 et seq.). Another groundwater district. including increased groundwater commenter thought our action to (25) Comment: The KCGCD plans to recharge. designate critical habitat would lead to permit total groundwater withdrawals Our Response: The proposed rule further action to declare it an that exceed the amount of groundwater indicated brush control and other land- endangered species. available according to estimates by the use activities could affect Devils River Our Response: We recognize the Texas Water Development Board. The minnow habitat. We have updated the positive relationships that exist between KCGCD does not consider impacts to the final rule to more accurately reflect our our agency, TPWD, and private Devils River minnow, and the KCGCD understanding that the actual effects of landowners in working together for the may have already sanctioned specific activities, such as brush conservation of the Devils River withdrawals of sufficient amounts of clearing, must be evaluated on a project- minnow. We concur that various groundwater to result in direct harm to specific basis. The impacts of any monitoring efforts in the Devils River the proposed critical habitat in Pinto specific activity will depend on the have continued to find the population Creek. location of the activity, and the extent persisting, apparently in strong Our Response: We understand there to, and manner in, which the activity is numbers. However, there is no available are important scientific uncertainties carried out. information that suggests the species is about the amount of groundwater We have also updated the final ‘‘thriving’’ across its range. The Act available for sustained uses in Kinney economic analysis to include a requires designation of critical habitat

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for species listed as either threatened or we do not foresee private landowner expected to change most ongoing or endangered, if we determine critical restrictions resulting from the final planned activities. habitat to be prudent and determinable. designation of critical habitat and do not The legal protections of critical As part of a process separate from believe that these concerns are likely to habitat only apply during interagency designating critical habitat, the Service be realized. These widely held consultation by Federal agencies under is now conducting a 5-year review on perceptions by landowners in the Devils section 7 of the Act. Activities that are the status of the Devils River minnow River Unit, however, could result in funded, permitted, or carried out by a rangewide to assess whether it is anti-conservation incentives because Federal agency (such as a permit from classified correctly as a threatened furthering Devils River minnow the U.S. Army Corps of Engineers under species. We requested information to conservation is seen as a risk to future section 404 of the Clean Water Act) on assist with this review in a Federal economic opportunities or loss of private or public lands that may affect Register notice on April 23, 2007 (72 FR private property rights. See our response a listed species or critical habitat 20134). We have not yet completed this to Comment 30 above. undergo additional review for review, and we are always open to (32) Comment: The restrictions on consideration of the listed species. receiving new information on the status landowners in the Devils River area will Through an interagency consultation of this and all listed species. unduly burden landowners. Critical process, the Service advises Federal (30) Comment: The voluntary habitat will also impact whether or not agencies whether the proposed actions conservation agreement signed by the you can use machinery for pushing would likely jeopardize the continued Service and TPWD in 1998 is working, cedar, constructing roads, clearing existence of the species or adversely and the Devils River Association renews brush, grazing livestock excessively, and modify its critical habitat. Results of our commitment to help with this using off-road vehicles. these additional reviews rarely interfere agreement. Voluntary efforts on the Our Response: These activities are with the ability of private or public Devils River have increased Devils River identified in the proposed and final entities to carry out otherwise lawful minnow habitat. The Service should rules as actions that could affect critical activities such as those described in this continue this healthy voluntary habitat, if they were carried out, funded, comment. cooperation. Designating critical habitat or permitted by a Federal agency and if We have only designated critical would terribly and irreparably damage they resulted in specific effects to the habitat in areas where the species the trust that we have gained over the critical habitat area. The final critical occurs. In these areas, Federal agencies last few years. Our Response: We appreciate and habitat designation itself does not already have a responsibility for strongly support the voluntary restrict landowners along the Devils interagency consultation for actions that cooperation that has been provided in River or elsewhere from carrying out may affect the species. A review of the the past by landowners along the Devils these activities. See our response to consultation history as part of the River. The conservation of this species Comment 27 for additional discussion economic analysis (documented in depends on the cooperative efforts of of brush clearing. Appendix A of the economic analysis) private landowners and others. (33) Comment: Will critical habitat concluded that there have been very few Although the 1998 conservation designation affect: (1) The right of the consultations since the species was agreement has not been renewed or City of Del Rio to take water from San listed in 1999. To date, there has been maintained as a formal conservation Felipe Springs or other groundwater no interagency consultation with effort following the initial 5-year sources; (2) the right of private Laughlin Air Force Base regarding the commitment, it has served as a landowners to take and use groundwater Devils River minnow. foundation for cooperative efforts that, on their lands; (3) City, County, or State (34) Comment: I am concerned that by in part, resulted in the designation of construction projects involving building designating the San Felipe Creek as the Devils River minnow as threatened or maintaining streets, highways, and critical habitat, the people will suffer rather than endangered. After other public facilities; (4) repair and and not be able to use the creek as the conducting an analysis under section maintenance activities on State City of Del Rio would like. The Devils 4(b)(2) of the Act, we concluded that the Highway 163 in Val Verde County or the River minnow should not dictate how benefits of excluding the Devils River county road from State Highway 163 to the City of Del Rio uses San Felipe Unit from the final designation F.M. 1024; (5) the rights of landowners Creek, but you should work to eradicate (including maintaining non-Federal to use and operate their lands for river cane and the armored catfish to partnerships) outweigh the benefits of otherwise lawful purposes? What help the population of the fish grow. inclusion (see ‘‘Exclusions under activities on non-Federal, public, or Our Response: People in Del Rio will Section 4(b)(2)’’ section). private lands will be affected by critical continue to be able to use San Felipe (31) Comment: Private landowners habitat designation? What impact will Creek even though it has been and ranchers along the Devils River critical habitat designation have on designated as critical habitat. The serve to maintain wide open spaces and Laughlin Air Force Base? conservation of the Devils River ecosystem processes. Restrictions on Response: Critical habitat only affects minnow has not limited the use of San private landowners from critical habitat activities where Federal agencies are Felipe Creek, and use is not likely to designation could affect landowners’ involved and consultation under section change with critical habitat. We will livelihoods and result in land 7 of the Act is necessary. Critical habitat continue our ongoing cooperative efforts fragmentation and a cascading effect designation has no impact on private with the City of Del Rio to work on along the Devils River. This could result actions on private lands. Critical habitat controlling exotic river cane and in the selling of smaller land parcels does not create a requirement for armored catfish, and on other and cause the end of one of the most specific land protection by non-Federal conservation efforts. pristine ecosystems in the State. parties. The Devils River minnow (35) Comment: There is suspicion that Our Response: We agree that occurs in streams primarily on non- the Devils River minnow population in maintaining large ranches intact is Federal lands with little to no Federal Pinto Creek was artificially introduced likely a beneficial situation for the agency involvement. Therefore, final by private landowners and others at the Devils River minnow habitat. However, critical habitat designation is not headwaters of Pinto Creek.

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Our Response: We have no the creek. The KCGCD does not have the consultations in areas designated as information to indicate that the Devils scientific evidence to assure that Las critical habitat for the Devils River River minnow in Pinto Creek is not a Moras Creek will not go dry if minnow. Rather, current and forecast natural population. The reason for the groundwater is transported to San conservation measures for the species recent discovery of Devils River Antonio. are a result of the listing of the Devils minnow in Pinto Creek is because there Our Response: We are not proposing River minnow as a threatened species. was no prior sampling in upstream areas to reintroduce Devils River minnow to The additional cost of consulting for where the species occurs (Garrett et al. Las Moras Creek with this final critical adverse modification above the cost of 2004, p. 439). In addition, recent genetic habitat rule. Instead we are designating consulting for jeopardy, in the amount studies of the Devils River minnow have critical habitat for the species in of $64,000 (undiscounted) over 20 years, found that the population in Pinto Creek portions of Pinto Creek and San Felipe are quantified as incremental post- is significantly different from the Creek. We have determined not to designation impacts in the population in the Devils River (Conway designate Las Moras Creek as critical administrative costs appendix of the et al. 2007, p. 9), suggesting that it is a habitat. The concerns raised in this economic analysis. natural population. comment will need to be addressed in (40) Comment: The critical habitat (36) Comment: Many listed species in future cooperative plans to restore the proposal and the DEA fail to fully Texas and nationally do not have Devils River minnow to Las Moras address the threat of climate change to critical habitat designated. The Service Creek. the Devils River minnow, despite the has already had a final ruling that stated fact that its southwestern aquatic habitat Comments Related to the Economic it would not be prudent to designate is in extreme peril from the climate Analysis critical habitat for the Devils River crisis. minnow because it would not benefit (39) Comment: The draft economic Our Response: At this time, climate the species (final listing rule in 1999, 64 analysis (DEA) maintains that section 7 change has not been identified as an FR 56606). As stated in the Service’s consultations under the jeopardy impact needing special management in July 26, 2005, letter to the Forest standard and the adverse modification the Devils River minnow critical habitat, Guardians, critical habitat is not needed standard are not likely to have as projections of specific impacts of for the Devils River minnow. significantly different outcomes. This is climate change in this area are not Our Response: We agree that not accurate, as the jeopardy standard currently available. As such, no designation of critical habitat is not does not protect unoccupied habitat. conservation measures are expected in likely to provide many benefits for the Moreover, destruction of occupied the reasonably foreseeable future that Devils River minnow since the habitat may not meet the jeopardy would directly address the threat of designated area is likely to have few standard if the Service determines that climate change to the Devils River Federal actions that affect the species. the destruction of a single population minnow. Thus, the economic analysis However, the Act requires that we will not cause the species to go extinct does not quantify impacts associated designate critical habitat following a or thwart its recovery. Alternatively, with conservation measures for the specific methodology. The lawsuit within critical habitat, the destruction of Devils River minnow related to global brought by Forest Guardians (now a single population or a portion thereof climate change. WildEarth Guardians) and others would certainly violate the Act’s (41) Comment: The potential impacts necessitated that we reconsider the prohibition of adverse modification. of future groundwater development for designation of critical habitat, resulting Our Response: It is true that it would municipal use should not be ignored in in this final rule. The reasoning that we be inappropriate to conclude that the economic analysis. With the used in 1999 to determine that the consultations under the jeopardy and potential groundwater yields that could designation of critical habitat was not adverse modification standards would be produced for municipal use, it is prudent was subsequently determined not differ for unoccupied critical recommended that the parameters used in other court cases not to be a valid habitat; however, we have not included in performing the economic analysis be justification. unoccupied areas in this final critical reexamined and revised to reflect the (37) Comment: All areas included in habitat designation (see ‘‘Criteria Used potential future impacts of pumping for the proposed rule should be designated to Identify Critical Habitat’’ section municipal use. If these factors are as critical habitat. The adequacy of below). Additionally, we recognize that ignored, it is conceivable that future existing or future conservation plans is the jeopardy and adverse modification limitations could impose unreasonable not sufficient to warrant any exclusions standards are not equivalent and that it restrictions on groundwater of critical habitat. is possible in a general sense that a development in the region, in turn Our Response: We are excluding the project may be determined to adversely resulting in significant economic Devils River Unit and Sycamore and Las modify critical habitat while also not impacts. Moras creeks from the critical habitat resulting in jeopardy. However, the Our Response: Section 3.2 of the final designation for Devils River minnow. specific situation for the Devils River economic analysis (FEA) recognizes that After conducting analyses under section minnow does not present this case. For any limitations on available future 4(b)(2) of the Act, we concluded that the two of the units, no projects with a groundwater resource options for San benefits of excluding the Devils River Federal nexus are anticipated, and for Antonio or other municipalities wishing Unit and Sycamore and Las Moras the third unit, the projects expected to export water from the critical habitat creeks from the final designation would generally be minor and not area would result in potentially (including maintaining non-Federal expected to affect an entire unit. substantial economic impacts on partnerships) outweigh the benefits of Therefore, projects in the third unit municipal users, presumably in terms of inclusion (see ‘‘Exclusions under would not likely result in adverse increased water prices occurring if Section 4(b)(2)’’ section). modification or jeopardy. Based on supply is constrained, or as more costly (38) Comment: Las Moras Creek is not discussions among stakeholders, options for water development are the place to reintroduce Devils River affected Federal agencies, and the undertaken. However, due to the minnow. Flooding in the city of Service, no new conservation measures uncertainties with regard to linking Brackettville often causes pollution in are expected to occur as a result of specific groundwater withdrawals to

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impacts on Devils River minnow state funding for a groundwater project. Felipe Creek and the San Felipe Country habitat, future Federal involvement in In this case, the specific project must be Club Management Plan, should not be potential water extraction projects, and included in the GMA’s regional water included in the economic baseline any potential changes to those projects plan. The total groundwater allotments calculation in the EA. Due to the that could be requested by the Service permitted by the GMA must not exceed voluntary nature of these plans, the as part of a consultation, the FEA is its managed available groundwater water quality protection measures unable to quantify potential economic level.’’ described are not guaranteed to occur. impacts of Devils River minnow (43) Comment: WaterTexas’ ongoing As such, these voluntary measures conservation measures related to such water exportation project is too might lower the perceived benefit to groundwater extraction activities. The preliminary to know for certain whether designating critical habitat by analysis does recognize that potential consultation with the Federal guaranteeing conservation, which, in negative impacts on both the water government above and beyond the U.S. reality, may or may not occur. suppliers and the end water users could Army Corps of Engineers (for Section Our Response: The FEA examines the occur should restrictions on water use 404 permits under the Clean Water Act) impacts of restricting or modifying be undertaken on behalf of the Devils will be necessary. With respect to specific land uses or activities for the River minnow. The analysis also points WaterTexas’ planned water exportation benefit of the species and its habitat out that there have not been any project, WaterTexas does not see the within the areas considered for critical consultations related to groundwater KCGCD’s management plan revision habitat designation. The analysis extraction and its effects on the Devils currently underway as any sort of employs ‘‘without critical habitat’’ and River minnow to date. barrier to the commencement or further ‘‘with critical habitat’’ scenarios. The (42) Comment: In Section 3.1 of the development of their current project. ‘‘without critical habitat’’ scenario DEA, the quotation attributed to the Our Response: Section 3.2 of the FEA represents the baseline for the analysis, document, ‘‘Texas Water Law,’’ Texas has now been clarified to state that the considering protections already Water Resource Education, Texas A&M WaterTexas project is too preliminary to accorded the Devils River minnow, University, is not completely accurate know for certain whether or not voluntary or otherwise. The City of Del with respect to Texas Law. While the so- consultation with the Federal Rio’s Management Plan for San Felipe called ‘‘Rule of Capture’’ continues to be government, other than the U.S. Army Creek and the San Felipe Country Club the underlying basis of groundwater law Corps of Engineers for a section 404 Management Plan were both developed in Texas, groundwater districts, and permit, will be necessary. A statement in 2003 following a Conservation now, more importantly, Groundwater has also been added to the FEA Agreement for the Devils River minnow Management Areas (GMAs) play a major clarifying that ‘‘currently, WaterTexas between the Service, TPWD, and the and superseding role in groundwater does not expect the forthcoming KCGCD City of Del Rio in 1998, prior to the planning and management. In management plan to affect their ongoing species’ listing. Thus, the costs of particular, House Bill 1763 from the groundwater exportation project.’’ developing these plans, and those 79th Regular Session of the Texas (44) Comment: In section 3.2 conservation measures listed in the Legislature created GMAs that now paragraph 86, the DEA states that management plans that have already cover all of Texas, and together with ‘‘supplementing San Antonio’s water occurred or are planned to occur in the groundwater districts, GMAs override in supply would, among other things, ease near future are included in the baseline. many respects the effects of the ‘‘Rule of water-related threats to other listed Impacts related to conservation Capture’’ as known and practiced in the species within the Edwards Aquifer.’’ measures discussed in the management past. WaterTexas wishes to correct any plans that are not anticipated to occur Our Response: Section 3.1 of the FEA perception that they believe their in the foreseeable future are not has been revised following receipt of planned water exportation project will quantified in the analysis. this comment. This section now states assist in directly reviving or rescuing (46) Comment: The DEA failed to the following: ‘‘Generally, groundwater any endangered species in any other consider the entirety of potential effects in Texas is governed by the ‘rule of area of Texas. of all Federal nexuses and ensuing capture,’ that is, groundwater is the Our Response: Section 3.2 of the FEA regulatory actions on small businesses, private property of the owner of the has been revised to clarify that one in particular, private landowners and overlying land. However, a number of water company believes that its project ranchers along the Devils River Unit. state-mandated groundwater may help to ease water-related threats to Pursuant to the 2002 Farm Bill, there are conservation districts (GCDs) have the other species in the Edwards Aquifer. at least two NRCS programs that provide ability to regulate the spacing and The section now states: ‘‘Grass Valley assistance to landowners to control production of groundwater wells. Each Water LP is proposing to export 22,000 brush. The proposed rule lists brush- GCD falls within a larger Groundwater acre-feet annually to San Antonio from clearing as an ‘‘action that would Management Area (GMA). Currently, 16 a 22,000-acre ranch in eastern Kinney significantly increase sediment GMAs exist in Texas spanning the County. The project would draw water deposition within the stream channel.’’ state’s major and minor aquifers. In from the Edwards Balcones Fault Zone, Potential brush-clearing consultations 2005, the Texas State Legislature which according to the company, does may delay actual brush-clearing to a required that all GCDs in a given GMA not affect Las Moras Springs. Grass point where landowners may miss the meet annually to determine a future Valley Water LP has already invested a opportunity to carry out planned brush desired groundwater condition for their significant amount of resources into the control activities for an entire year. respective GMA. Based on the desired project and believes that supplementing Our Response: Section 2 of the FEA future condition specified by a given San Antonio’s water supply could, now clarifies that threats to water GMA, the Texas Water Development among other positive effects, ease water- quality in Devils River minnow critical Board (TWDB) determines a managed related threats to other listed species habitat may include sedimentation due available groundwater level for the within the Edwards Aquifer.’’ to grazing, brush-clearing, road GMA. Lands outside of GCDs are not (45) Comment: Voluntary construction, channel alteration, off- subject to groundwater pumping conservation plans, such as the City of road vehicle use, and other watershed regulations unless a landowner seeks Del Rio’s Management Plan for San activities in the rural Devils River,

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Sycamore Creek, and Pinto Creek units. areas, it appears unlikely that critical believes that the direct benefits of the Section 2 of the FEA also includes a habitat designation for the Devils River Proposed Rule are best expressed in discussion of the concern that private minnow will result in long-term stigma biological terms that can be weighed brush-clearing activities conducted effects for property owners abutting against the expected cost impacts of the using funds from NRCS could be designated stream segments. Unless a rulemaking.’’ Thus, the Service utilizes delayed to a point where landowners landowner receives Federal assistance cost estimates from the economic may miss the opportunity to carry out or needs a Federal permit to carry out analysis as one factor against which those activities for an entire year. The property management actions, no nexus biological benefits are compared during analysis examines a 2004 formal exists that would compel a Federal the 4(b)(2) weighing process. The consultation between the Service and action agency to consider requiring Service agrees that, to the extent that the NRCS regarding activities associated conservation measures for the species. additional social benefits such as with implementation of the 2002 Farm For ongoing private land-use activities, improving water quality, eliminating Bill conservation programs and their such a nexus is expected to be rare. non-native species, and preserving/ effects on listed species in western Further, recent land-use trends in maintaining ecosystem services result Texas. This consultation, which focused critical habitat areas are a transition from conservation measures for the on brush management treatment from ranching and agricultural uses to Devils River minnow, these practices targeting control of honey recreation and conservation-based land improvements could also benefit human mesquite (Prosopis glandulosa), salt uses. In these cases, any perceptions communities. In this case, the DEA cedar, Ashe juniper (Juniperus ashei), that development activities may be predicts that the incremental costs and redberry juniper (J. coahuilensis) limited in those areas could in fact resulting from the proposed rule are concluded that the proposed brush- increase the attractiveness of property in solely administrative in nature. As the clearing activities would benefit the those areas. In either case, as the public commenter points out, no new Devils River minnow by increasing the becomes aware of the true regulatory conservation measures are anticipated base flow of the Devils River if the burden imposed by critical habitat, any to result from the designation. brush-control activities were part of impact of the designation on property brush management practices intended to values would be expected to decrease. Summary of Changes From the improve the quality and quantity of (48) Comment: The economic analysis Proposed Rule water, improve range conditions, and states that it measures net economic In preparing the final critical habitat improve the value of wildlife habitat. costs, but it does not quantify benefits. designation for the Devils River Thus, all brush removal activities Therefore, the Service cannot estimate minnow, we reviewed and considered receiving funding from the NRCS under the ‘‘net’’ impacts of critical habitat. comments from the public and peer the 2002 Farm Bill remained unaltered Consequently, they cannot reviewers on the July 31, 2007, as a result of that consultation. The appropriately invoke section 4(b)(2) of proposed designation of critical habitat analysis concludes that few, if any, the Act to exclude areas from its final (72 FR 41679) and on the draft impacts on brush-clearing activities, critical habitat designation for the economic analysis, made available on even when supported by NRCS funds, Devils River minnow. The commenter February 7, 2008 (73 FR 7237). As a appear likely to result from Devils River also states that benefits derived from result of comments received, we made minnow conservation activities. conservation measures such as the following changes to our proposed (47) Comment: Several commenters improving water quality, eliminating designation: requested that stigma effects be non-native species, and preserving/ (1) We updated the Required addressed in the economic analysis. maintaining ecosystem services also Determinations sections to incorporate One commenter stated that he believes benefit human communities and have updated analyses from the FEA. this effect could significantly decrease been captured in economic literature (2) We have excluded 47.0 stream km and lower the land value of the land and should be considered in the DEA. (29.2 stream mi) of stream within the along the Devils River. The number The commenter notes that the costs of Devils River Unit (Unit 1) proposed as could be anywhere from 2 to 10 million these conservation measures are critical habitat for Devils River minnow dollars of land devaluation impacts. attributed to baseline protections. from the final designation (see the Our Response: Section 1.3.2 of the Our Response: Where sufficient ‘‘Exclusions under Section 4(b)(2) of the FEA has been revised and expanded to information is available, the FEA Act’’ section of this final rule for further respond to concerns over stigma effects attempts to recognize and measure the details). related to the designation. The analysis net economic costs of species (3) We determined, based upon the recognizes that, in some cases, public conservation efforts imposed on comments received and consistent with perception of critical habitat designation regulated entities and the regional the recovery plan, that Sycamore and may result in limitations of private economy as a result of critical habitat Las Moras creeks are essential to the property uses above and beyond those designation. That is, it attempts to conservation of the Devils River associated with anticipated project measure costs imposed on landowners minnow. We are excluding these areas modifications and uncertainty related to or other users of the resource net of any from critical habitat (see the regulatory actions. Public attitudes offsetting gains experienced by these ‘‘Exclusions under Section 4(b)(2) of the regarding the limits or restrictions of individuals associated with these Act’’ section of this final rule for further critical habitat can cause real economic conservation efforts. details). effects to property owners, regardless of The analysis does not attempt to whether such limits are actually assign a monetary value to broader Critical Habitat imposed. To the extent that potential social benefits that may result from Critical habitat is defined in section 3 stigma effects on real estate markets are species conservation. The primary of the Act as: probable and identifiable, these impacts purpose of the rulemaking is the (1) The specific areas within the are considered indirect, incremental potential to enhance conservation of the geographical area occupied by a species, impacts of the designation. species. As stated in the FEA, and as at the time it is listed in accordance The FEA finds that, in the case of the quoted in the comment, ‘‘rather than with the Act, on which are found those Devils River minnow critical habitat rely on economic measures, the Service physical or biological features

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(a) Essential to the conservation of the may require special management scientific information at the time of the species and considerations or protection. agency action. Federally funded or (b) Which may require special Under the Act, we can designate permitted projects affecting listed management consideration or critical habitat in areas outside the species outside their designated critical protections; and geographical area occupied by the habitat areas may require consultation (2) Specific areas outside the species at the time it is listed only when under section 7 of the Act and may still geographical area occupied by a species we determine that the best available result in jeopardy findings in some at the time it is listed, upon a scientific data demonstrate that the cases. Similarly, critical habitat determination that such areas are designation of that area is essential to designations made on the basis of the essential for the conservation of the the conservation needs of the species. best available information at the time of species. Section 4 of the Act requires that we designation will not control the Conservation, as defined under designate critical habitat on the basis of direction and substance of future section 3 of the Act, means the use of the best scientific and commercial data recovery plans, habitat conservation all methods and procedures that are available. Further, our Policy on plans (HCPs), or other species necessary to bring any endangered or Information Standards Under the conservation planning efforts if threatened species to the point at which Endangered Species Act (published in information available at the time of the measures provided under the Act the Federal Register on July 1, 1994 (59 these planning efforts calls for a are no longer necessary. FR 34271)), the Information Quality Act different outcome. (section 515 of the Treasury and General Critical habitat receives protection Government Appropriations Act for Primary Constituent Elements under section 7 of the Act through the Fiscal Year 2001 (Pub. L. 106–554; H.R. prohibition against Federal agencies In accordance with section 3(5)(A)(i) 5658)), and our associated Information carrying out, funding, or authorizing the of the Act and regulations at 50 CFR Quality Guidelines provide criteria, destruction or adverse modification of 424.12, in determining which areas establish procedures, and provide critical habitat. Section 7(a)(2) of the Act occupied by the species at the time of guidance to ensure that our decisions requires consultation on Federal actions listing to designate as critical habitat, are based on the best scientific data that may affect critical habitat. The we consider those physical and available. They require our biologists, to designation of critical habitat does not biological features essential to the the extent consistent with the Act and conservation of the species that may affect land ownership or establish a with the use of the best scientific data refuge, wilderness, reserve, preserve, or require special management available, to use primary and original considerations or protection. We other conservation area. Such sources of information as the basis for designation does not allow the consider the physical or biological recommendations to designate critical features to be the PCEs laid out in the government or public to access private habitat. lands. Such designation does not appropriate quantity and spatial When determining which areas arrangement for the conservation of the require implementation of restoration, should be designated as critical habitat, recovery, or enhancement measures by species. The PCEs include, but are not our primary source of information is limited to: private landowners. Where a landowner generally the information developed requests Federal agency funding or (1) Space for individual and during the listing process for the population growth and for normal authorization for an action that may species. Additional information sources affect a listed species or critical habitat, behavior; may include the recovery plan for the (2) Food, water, air, light, minerals, or the consultation requirements of section species, articles in peer-reviewed other nutritional or physiological 7(a)(2) would apply, but even in the journals, conservation plans developed requirements; event of a destruction or adverse by States and counties, scientific status (3) Cover or shelter; modification finding, the landowner’s surveys and studies, biological (4) Sites for breeding, reproduction, obligation is not to restore or recover the assessments, or other unpublished and rearing (or development) of species, but to implement reasonable materials and expert opinion or offspring; and and prudent alternatives to avoid personal knowledge. (5) Habitats that are protected from destruction or adverse modification of Habitat is often dynamic, and species disturbance or are representative of the critical habitat. may move from one area to another over historic, geographical, and ecological For inclusion in a critical habitat time. Furthermore, we recognize that distributions of a species. designation, the habitat within the designation of critical habitat may not We derive the specific primary geographical area occupied by the include all of the habitat areas that we constituent elements required by the species at the time of listing must may eventually determine, based on Devils River minnow from the biological contain the physical and biological scientific data not now available to the needs of the species as understood from features essential to the conservation of Service, are necessary for the recovery studies of its biology and ecology, the species. Critical habitat designations of the species. For these reasons, a including but not limited to, Edwards et identify, to the extent known using the critical habitat designation does not al. (2004), Garrett et al. (1992), Garrett best scientific data available, habitat signal that habitat outside the et al. (2004), Gibson et al. (2004), Harrell areas that provide essential life cycle designated area is unimportant or may (1978), Hubbs (2001), Hubbs and Garrett needs of the species (i.e., areas on which not promote the recovery of the species. (1990), Lopez-Fernandez and are found the primary constituent Areas that support populations, but Winemiller (2005), Valdes Cantu and elements (PCEs) laid out in the are outside the critical habitat Winemiller (1997), and Winemiller appropriate quantity and spatial designation, will continue to be subject (2003). arrangement for the conservation of the to conservation actions we implement species). under section 7(a)(1) of the Act. They Space for Individual and Population Occupied habitat that contains the are also subject to the regulatory Growth, Normal Behavior, and Cover features essential to the conservation of protections afforded by the section The Devils River minnow is a fish that the species meets the definition of 7(a)(2) jeopardy standard, as determined occurs only in aquatic environments of critical habitat only if those features on the basis of the best available small to mid-sized streams that are

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tributaries of the Rio Grande in south found in areas with shallow to moderate These microorganisms are a component Texas and northern Mexico. The species water depths between about 10 cm (4 in) of the diet of the Devils River minnow spends its full life cycle within streams. and 1.5 meters (m) (4.9 feet (ft)) (Garrett (Lopez-Fernandez and Winemiller 2005, The stream environment provides all of et al. 2004, p. 436). Appropriate water p. 250). We estimate substrate sizes for the space necessary to allow for depths and velocities are required gravel-cobble between 2 and 10 cm (0.8 individual and population growth, food, physical features for Devils River and 4 in) in diameter (Cummins 1962, cover, and normal behaviors of the minnows to complete all life history p. 495) are important for supporting species. Studies of the specific micro- functions. food sources for the Devils River habitats used by any life stages of Devils b. Cover. The presence of vegetative minnow. River minnow in the wild have not been structure appears to be particularly d. Stream Channel. The Devils River conducted. Studies of fish habitat important for the Devils River minnow. minnow occurs in the waters of stream within its range have found too few Garrett et al. (2004, p. 437) states that channels that flow out of the Edwards individuals of Devils River minnow to the species is most often found Plateau of Texas. The streams contain a analyze specific habitat associations associated with emergent or submerged variety of mesohabitats for fish that are (Garrett et al. 1992, p. 266; Valdes Cantu vegetation. Although some sites where temporally and spatially dynamic and Winemiller 1997, p. 268; Robertson Lopez-Fernandez and Winemiller (2005, (Harrell 1978, p. 60–61; Robertson and and Winemiller 2003, p. 119). However, p. 249) found Devils River minnow had Winemiller 2003, p. 115). Mesohabitat observational studies have been little or no aquatic vegetation, they often types are stream conditions with conducted throughout its limited range found the Devils River minnow different combinations of depth, that generally defined stream conditions associated with stream banks having velocity, and substrate, such as pools where Devils River minnows have been riparian vegetation that overhangs into (stream reaches with low velocity and collected. the water column, presumably deep water), riffles (stream reaches with General habitat descriptions of areas providing similar structure for the fish moderate velocity and shallow depths where Devils River minnow have been to use as cover. The structure provided and some turbulence due to high found include the following: ‘‘the area by vegetation likely serves as cover for gradient), runs (stream reaches with where spring runs enter the river’’ predator avoidance by the Devils River moderate depths, moderate velocities, (Hubbs and Garrett 1990, p. 448); minnow and as a source of food where and a uniformly flat stream bottom), and ‘‘channels of fast-flowing water over algae and other microorganisms may be backwaters (areas in streams with little gravel bottoms’’ (Garrett et al. 1992, p. attached. In controlled experiments in or no velocities along stream margins) 259); ‘‘associated with water willow an artificial stream setting, minnows in (Parasiewicz 2001, p. 7). These physical (Justicia americana) and other aquatic the Dionda genus (the experiment did conditions in stream channels are macrophytes over a gravel-cobble not distinguish between the Devils River mainly formed by large flood events that substrate’’ (Garrett et al. 2004, p. 437) minnow and the closely related shape the banks and alter stream beds. (macrophytes are plants large enough to manantial roundnose minnow) were Healthy stream ecosystems require be seen without a microscope); and found consistently associated with intact natural stream banks (including ‘‘stream seeps’’ at sites that ‘‘had plants, and, in the presence of a rocks and native vegetation) and stream abundant riparian vegetation predator, sought shelter in plant beds (dynamically fluctuating from silt, overhanging the banks’’ (Lopez- substrate habitat (Thomas 2001, p. 8). sand, gravel, cobble, and bedrock). Fernandez and Winemiller 2005, p. Also, laboratory observations by Gibson These physical features allow natural 249). Stream seeps are specific sites et al. (2004, p. 42) suggested that ecological processes in stream along the stream where small amounts spawning only occurred when structure ecosystems, such as nutrient cycling, of water enter the stream from the was provided in aquaria. Instream aquatic species reproduction and ground. They are small springs, but may vegetative structure is an important rearing of young, predator-prey be less defined and more temporal. We biological feature for the Devils River interactions, and maintenance of habitat based our determinations of the PCEs on minnow to avoid predation and for Devils River minnow behaviors of the physical and biological features that complete other normal behaviors, such feeding, breeding, and seeking shelter. have been measured in streams where as feeding and spawning. Devils River minnow may move up Devils River minnow occur. c. Substrates. The Devils River and downstream to use diverse a. Water Depth and Velocity. Flowing minnow is most often associated with mesohabitats during different seasons water within streams is critical to substrates (stream bottom) described as and life stages, which could partially provide living space for the Devils River gravel and cobble (Garrett et al. 2004, p. explain the highly variable sampling minnow. All of the streams where the 436). Lopez-Fernandez and Winemiller results assessing abundance of the fish Devils River minnow is found are (2005, p. 248) found the Devils River (Garrett et al. 2002, p. 478). However, it supported by springs that derive their minnow associated with areas where the is unknown to what extent Devils River discharge from underground aquifers, amounts of fine sediment on stream minnow may move within occupied either the Edwards Aquifer or the bottoms were low (less than 65 percent stream segments because no research on Edwards-Trinity Aquifer (Brune 1981, stream bottom coverage) (Winemiller movement has been conducted. Linear pp. 274–277, 449–456; Edwards et al. 2003, p. 13) and where there was low or movement (upstream or downstream) 2004, p. 256; Garrett et al. 1992, p. 261; moderate amounts of substrate within streams may be important to Garrett et al. 2004, p. 439; Hubbs and embeddedness. The term embeddedness allow fishes to complete life history Garrett 1990, p. 448; Lopez-Fernandez is defined by Sylte and Fischenich functions and adjust to resource and Winemiller 2005, p. 249). The (2003, p. 1) as the degree to which fine abundance, but this linear movement Devils River minnow has been sediments surround coarse substrates on may often be underestimated due to associated within the stream channel the surface of a streambed. Low levels limited biological studies (Fausch et al. with areas with slow to moderate of substrate embeddedness and low 2002, p. 490). The Devils River minnow velocities between 10 and 40 amounts of fine sediment are physical occurs in relatively short stream centimeters (cm)/second (4 and 16 stream features that provide interstitial segments and, therefore, needs to be inches (in)/second) (Winemiller 2003, p. spaces within cobble and gravel able to move within the stream 13). The Devils River minnow is usually substrates where microorganisms grow. unimpeded to access different areas

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within the stream to complete life parameters for critical habitat. In et al. 2004, p. 440; Hubbs 2001, p. 312; history functions and find resources, addition, laboratory studies by Gibson et Winemiller 2003, p. 13); conductivity is such as food and cover. al. (2004, pp. 44–46) and Gibson and less than 0.7 mS/cm (microseimens per Fries (2005, pp. 299–203) have also centimeter) and salinity is less than 1 Food provided useful information for the ppt (part per thousand) (Hubbs 2001, p. The Devils River minnow, like other water quality conditions in captivity for 312; Winemiller 2003, p. 13; Garrett et minnows in the Dionda genus, has a Devils River minnow, as described in al. 2004, p. 440; Gibson et al. 2004, p. long coiled gut for digesting algae and the following discussion. 45); and ammonia levels are less than other plant material. Lopez-Fernandez a. Water temperature. Water 0.4 mg/l (Hubbs 2001, p. 312; Garrett et and Winemiller (2005, p. 250) noted temperatures from groundwater al. 2004, p. 440). Streams with water that Devils River minnows graze on discharge at these springs are chemistry within the observed ranges algae attached to stream substrates (such considered constant (Hubbs 2001, p. are essential physical features to as gravel, rocks, submerged plants, and 324). However, water temperatures provide habitat for normal behaviors of woody debris) and associated downstream from springs vary daily and Devils River minnow. microorganisms. Thomas (2001, p. 13) seasonally (Hubbs 2001, p. 324). Water Garrett et al. (2004, pp. 439–440) observed minnows in the Dionda genus temperatures have been measured in highlighted the conservation (the experiment did not distinguish these stream segments where Devils implications of water quality when between Devils River minnow and the River minnow are found to range from describing the distribution of Devils closely related manantial roundnose about 17 °C (degrees Celsius) to 29 °C River minnow in Pinto Creek. The minnow) feeding extensively on (63 °F (degrees Fahrenheit) to 84 °F). species is abundant in upstream filamentous algae growing on plants and Temperatures in the Devils River ranged portions of the creek and is abruptly rocks in an artificial stream experiment. from 17 °C to 27 °C (63 °F to 81 °F) absent at and downstream from the The specific components of the Devils (Lopez-Fernandez and Winemiller 2005, Highway 90 Bridge crossing. A different River minnow diet have not been p. 248; Hubbs 2001, p. 312). aquifer (Austin Chalk) feeds the lower investigated, but a study is underway to Measurements in San Felipe Creek have portion of the creek (Ashworth and identify stomach contents of the Devils ranged from 19 °C to 24 °C (66 °F to 75 Stein 2005, p. 19), which results in River minnow in San Felipe Creek °F) (Hubbs 2001, p. 311; Winemiller changes in water quality (different (TPWD 2006, p. 1). An abundant aquatic 2003, p. 13). Gibson and Fries (2005, p. measurements of water temperature, pH, food base of algae and other aquatic 296) had successful spawning by Devils ammonia, and salinity). Garrett et al. microorganisms attached to stream River minnow in laboratory settings at (2004, p. 439) found that the change in substrates is an essential biological temperatures from about 18 °C to 24 °C water quality also coincided with the feature for conservation of Devils River (64 °F to 75 °F). Higher water occurrence of different fish species that minnow. temperatures are rare in Devils River were more tolerant of these changes in Water Quality minnow habitat, but temperatures up to water quality parameters. 29 °C (84 °F) were recorded in Pinto c. Pollution. The Devils River minnow The Devils River minnow occurs in Creek (Garrett et al. 2004, p. 437). Pinto occurs only in habitats that are generally spring-fed streams originating from Creek generally has the lowest seasonal free of human-caused pollution. Garrett groundwater. The aquifers that support discharge rates (in other words, lower et al. (1992, pp. 266–267) suspected that these streams are of high quality and are flows) of the streams known to contain the addition of chlorine to Las Moras free of pollution and most human- the Devils River minnow, resulting in Creek for the maintenance of a caused impacts (Plateau Water Planning higher seasonal temperatures. Lower recreational swimming pool may have Group (PWPG) 2006, pp. 5–9). This discharges during the summer can result played a role in the extirpation of Devils region of Texas has limited human in areas of shallow water with high River minnow from that system. development that would compromise levels of solar heat input leading to high Unnatural addition of pollutants such as water quality of the streams where water temperatures. Maintaining water chlorine, copper, arsenic, mercury, and Devils River minnows occur. San Felipe temperatures within an acceptable range cadmium; human and animal waste Creek may be an exception; see ‘‘Special in small streams is an essential physical products; pesticides; suspended Management Considerations or feature for the Devils River minnow to sediments; and petroleum compounds Protection’’ below. The watersheds are allow for survival and reproduction. and gasoline or diesel fuels will alter largely rural and were altered in the past Maintaining water temperatures within habitat functions and threaten the to some extent by livestock grazing these ranges is interdependent on continued existence of Devils River (cattle, sheep, and goats) for many maintaining adequate spring flows to minnow. Fish, particularly herbivores decades (Brune 1981, p. 449), which streams from groundwater aquifers, and bottom-feeders, such as the Devils may have caused some degradation in which generally discharge stable cooler River minnow, are most likely affected water quality. In recent years, land water (Mathews 2007, p. 2). by aquatic pollutants because their food management has shifted away from b. Water chemistry. Researchers have source (algae and other sheep and goat grazing toward cattle noted the need for high-quality water in macroinvertebrates) can be particularly grazing and recreational uses, such as habitats supporting the Devils River susceptible to pollutant impacts (Buzan hunting, that can promote maintenance minnow (Garrett 2003, p. 155). Field 1997, p. 4). Because Devils River of healthier grasslands (McCormick studies at sites where Devils River minnow occurs in spring-fed waters that 2008, p. 33). minnow have been collected in are generally free of sedimentation, No specific studies have been conjunction with water quality protection from increased turbidity from conducted to determine water quality measurements have documented that suspended sediments or increased preferences or tolerances for Devils habitats contain the following water sedimentation from runoff are important River minnow. However, because the chemistry: dissolved oxygen levels are to maintain suitable habitat (Robertson species now occurs in only three greater than 5.0 mg/l (milligrams per 2007, pp. 2–3). Areas with waters free streams, observations of water quality liter) (Hubbs 2001, p. 312; Winemiller of pollution are essential physical conditions in these streams are used to 2003, p. 13; Gibson et al. 2004, p. 44); features to allow normal behaviors and evaluate the needed water quality pH ranges between 7.0 and 8.2 (Garrett growth of the Devils River minnow and

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to maintain healthy populations of its structure is a biological feature that is Baxter et al. 2004, p. 2656; Howells food sources. important for reproduction of Devils 2001, pp. 17–18; Light and Marchetti River minnow. 2007, pp. 442–444; Moyle et al. 1986, Sites for Breeding, Reproduction, and pp. 416–418). Studies have suggested Rearing of Offspring Habitat Protected From Disturbance or effects on the Devils River minnow from Representative of the Historic The specific sites and habitat the armored catfish in San Felipe Creek, Geographical and Ecological associated with Devils River minnow most likely due to competition for food Distribution of a Species breeding and reproduction have not (Lopez-Fernandez and Winemiller 2005, been documented in the wild. However, a. Nonnative Species. The p. 250). Armored catfish may also be Gibson et al. (2004) studied preferred introduction and spread of nonnative piscivorous and directly prey on Devils conditions for spawning by Devils River species have been identified as major River minnow (Wiersema 2007, pp. 5– minnow in a laboratory setting. Gibson factors in the continuing decline of 6). Nonnative aquatic and riparian et al. (2004, pp. 45–46) documented that native fishes throughout North America plants, such as hydrilla, water hyacinth, the species is a broadcast spawner (they (Moyle et al. 1986, pp. 415–416) and and giant river cane, also represent release eggs and sperm into the open particularly in the southwestern United concerns for Devils River minnow from water), over unprepared substrates (they States (Miller 1961, p. 397; Miller 1977, altering habitat conditions, food don’t build nests), and males display pp. 376–377). Williams et al. (1989, p. sources, and stream hydrology some territorial behavior. Broadcast 1) concluded that nonnative species (Mathews 2007, p. 2). spawning is the most common were a causal factor in 68 percent of the The absence of impacts from harmful reproductive method in minnows fish extinctions in North America in the nonnative species is an essential (Johnston 1999, p. 22; Johnston and last 100 years. For 70 percent of those biological feature for the conservation of Page 1992, p. 604). Fertilized eggs of fish still extant, but considered to be the Devils River minnow. The Devils River minnow were slightly endangered or threatened, introduced persistence of Devils River minnow in adhesive (or became more adhesive with nonnative species are a primary cause of its natural habitat depends on either time) and tended to stick to gravels just the decline (Lassuy 1995, p. 392). having areas devoid of harmful below the surface of the substrate Nonnative species have been referenced nonnative aquatic species or having (Gibson et al. 2004, p. 46). The eggs can as a cause of decline in native Texas areas where nonnative aquatic species hatch less than one week after fishes as well (Anderson et al. 1995, p. are present, but with sufficiently low deposition (Gibson 2007, p. 1). There 319; Hubbs 1990, p. 89; Hubbs et al. levels of impacts to allow for healthy was little seasonality in spawning 1991, p. 2). populations of the Devils River minnow. periods observed (Gibson et al. 2004, p. Aquatic nonnative species are b. Hydrology. Natural stream flow 45–46), which is consistent with a introduced and spread into new areas regimes (both quantity and timing) are species that lives in a relatively stable through a variety of mechanisms, vital components to maintaining temperature environment, such as intentional and accidental, authorized ecological integrity in stream spring-fed streams with low seasonal and unauthorized. Mechanisms for ecosystems (Poff et al. 1997, p. 769; temperature variations. Based on this nonnative fish dispersal in Texas Resh et al. 1988, pp. 443–444). Aquatic information, it is likely the species can include sport fish stocking (intentional organisms, like the Devils River spawn during most of the year. This is and inadvertent, non-target species), minnow, have specific adaptations to supported by Garrett et al. (2004, p. aquaculture escapes, aquarium releases, use the environmental conditions 437), who observed distinct breeding and bait bucket releases (release of fish provided by natural flowing systems coloration of Devils River minnow (blue used as bait by anglers) (Howells 2001, and the highly variable stream flow sheen on the head and yellow tint on p. 1). patterns (Lytle and Poff 2004, p. 94). As body) in Pinto Creek in December 2001, Within the range of the Devils River with other streams in the arid and Winemiller (2003, p. 16), who minnow, nonnative aquatic species of southwestern United States, streams found juveniles from early spring to late potential concern include: armored (or where the Devils River minnow occurs fall in San Felipe Creek. suckermouth) catfish (Hypostomus sp.) can have large fluctuations in stream a. Substrate. Gibson and Fries (2005, in San Felipe Creek (Lopez-Fernandez flow levels. In Texas, streams are p. 299) found that Devils River minnow and Winemiller 2005, pp. 246–251); characterized by high variation between preferred gravel for spawning substrate, smallmouth bass (Thomas 2001, p. 1), large flood flows (occurring irregularly with size ranging mostly from 2 to 3 cm carp (Cyprinus carpio), goldfish from rainfall events) and extended (0.8 to 1.2 in) in diameter. Gravel and (Carassius auratus), and redbreast period of low flows (Jones 1991, p. 513). rock substrates are required physical sunfish (Lepomis auritus) (Edwards Base flows in streams containing Devils features for spawning (depositing, 2007, p. 1) in the Devils River; African River minnow are generally maintained incubating, and hatching) of Devils cichlid (Oreochromis aureus) in San by constant spring flows (Ashworth and River minnow eggs. Felipe Creek (Lopez-Fernandez and Stein 2005, p. 4), but in periods of b. Cover. In laboratory experiments, Winemiller 2005, p. 249) and Devils drought, especially in combination with Devils River minnow did not spawn in River (Garrett et al. 1992, p. 266); Asian groundwater withdrawals, portions of tanks until live potted plants snail (Melanoides tuberculata) and stream segments can be periodically (Vallisnaria spp. and Justicia spp.) were associated parasites (McDermott 2000, dewatered. The occurrence of added; however, eggs were never found pp. 13–14) in San Felipe Creek; and intermittent stream segments within the on the plants or other parts of the tank Asian bivalve mollusk (Corbicula sp.) range of the Devils River minnow is (Gibson et al. 2004, pp. 42, 43, 46). The (Winemiller 2003, p. 25) in San Felipe most common in Pinto Creek (Ashworth plants apparently served as cover for the Creek. Effects from nonnative species and Stein 2005, Figure 13; Uliana 2005, fish and allowed favorable conditions can include predation, competition for p. 4; Allan 2006, p. 1). for spawning to occur. This condition is resources, altering of habitat, changing Although portions of stream segments supported by observations in the wild of fish assemblages (combinations of included in this designation may that associates Devils River minnow species), or transmission of harmful experience short periods of low or no with aquatic habitats where vegetative diseases or parasites (Aquatic Nuisance flows (causing dry sections of stream), structure is present. This vegetative Species Task Force 1994, pp. 51–59; they are still important because the

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Devils River minnow is adapted to conservation of the species and which but otherwise serve as connective stream systems with some fluctuating may require special management corridors between occupied or water levels. Fish cannot persist in considerations or protections. The seasonally occupied areas through dewatered areas (Hubbs 1990, p. 89). physical and biological features are which the species moves when the area However, Devils River minnows will those primary constituent elements is wetted. use dewatered areas that are (PCEs) laid out in a specific spatial This final designation is designed for subsequently wetted as connective arrangement and quantity to be essential the conservation of PCEs necessary to corridors between occupied or to the conservation of the species. support the life history functions that seasonally occupied habitat. Fausch et Based on the above needs and our were the basis for the designation and al. (2002, p. 490) notes in a review of current knowledge of the life history, the areas containing those PCEs in the movement of fishes related to biology, and ecology of the species, we appropriate quantity and spatial metapopulation dynamics that, ‘‘Even have determined that the Devils River arrangement. Because not all life history small fishes may move long distances to minnow’s PCEs are: functions require all the PCEs, not all repopulate rewetted habitats.’’ (1) Streams characterized by: critical habitat will contain all the PCEs. a. Areas with slow to moderate water Preventing habitat fragmentation of fish Special Management Considerations or populations is important in reducing velocities between 10 and 40 cm/second Protections extinction risks in rare species (Fagan (4 and 16 in/second) in shallow to 2002, p. 3255). Areas within stream moderate water depths between When designating critical habitat, we courses that may be periodically approximately 10 cm (4 in) and 1.5 m assess whether the areas occupied by dewatered but that serve as connective (4.9 ft), near vegetative structure, such the species at the time of listing contain corridors between occupied or as emergent or submerged vegetation or the physical and biological features that seasonally occupied habitat and through stream bank riparian vegetation that are essential to the conservation of the which the species may move when the overhangs into the water column; species and that may require special habitat is wetted are important physical b. Gravel and cobble substrates management considerations or features of Devils River minnow habitat. ranging in diameter between 2 and 10 protections. We provide a summary Flooding is also a large part of the cm (0.8 and 4 in) with low or moderate discussion below of the special natural hydrology of streams within the amounts of fine sediment (less than 65 management needs for the Devils River, range of Devils River minnow. Large percent stream bottom coverage) and San Felipe Creek, and Pinto Creek floods have been shown to alter fish low or moderate amounts of substrate stream segments. For additional community structure and fish habitat embeddedness; and information regarding the threats to the use in the Devils River (Harrell 1978, p. c. Pool, riffle, run, and backwater Devils River minnow and the needed 67) and in San Felipe Creek (Garrett and components free of artificial instream management strategies to address those Edwards 2003, p. 787; Winemiller 2003, structures that would prevent threats, see the Devils River Minnow p. 12). Pearsons et al. (1992, pp. 427) movement of fish upstream or Recovery Plan (Service 2005, pp. 1.7–1– state that ‘‘Flooding is one of the most downstream. 1.7–7; 1.8–1–1.8–4; 2.5–1–2.5–5). important abiotic factors that structure (2) High-quality water provided by The following special management biotic assemblages in streams.’’ Floods permanent, natural flows from needs apply to all three stream provide flushing flows that remove fine groundwater springs and seeps segments, Devils River, San Felipe sediments from gravel and provide characterized by: Creek, and Pinto Creek, and will be spawning substrates for species like the a. Temperature ranging between 17 °C further discussed for each stream Devils River minnow (Instream Flow and 29 °C (63 °F and 84 °F); segment in the ‘‘Critical Habitat Council 2002, p. 103; Poff et al. 1997, b. Dissolved oxygen levels greater Designation’’ section below. p. 775). Flooding is the physical than 5.0 mg/l; a. Groundwater Management. The mechanism that shapes stream channels c. Neutral pH ranging between 7.0 and waters that produce all three stream by a process known as scour and fill, 8.2; segments issue from springs that are where some areas are scoured of fine d. Conductivity less than 0.7 mS/cm supported by underground aquifers, sediments while fine sediments are and salinity less than 1 ppt; generally some portion of the Edwards- redeposited in other areas (Gordon et al. e. Ammonia levels less than 0.4 mg/ Trinity Aquifer or the Edwards Aquifer 1992, pp. 304–305; Poff et al. 1997, pp. l; and (Ashworth and Stein 2005, pp. 16–33; 771–772). This dynamic process is f. No or minimal pollutant levels for Barker and Ardis 1996, pp. B5-B6; fundamental to maintaining habitat copper, arsenic, mercury, and cadmium; Brune 1981, pp. 274–277, 449–456; diversity in streams that ensure healthy human and animal waste products; Green et al. 2006, pp. 28–29; LBG- ecosystem function (Lytle and Poff pesticides; fertilizers; suspended Guyton Associates 2001, pp. 5–6; PWPG 2004, pp. 96–99; Poff et al. 1997, pp. sediments; and petroleum compounds 2006, pp. 3–5, 3–6, 3–30; USGS 2007, 774–777). Allowing natural stream and gasoline or diesel fuels. p.2). Regional groundwater flow in this flows, particularly during flood events, (3) Abundant aquatic food base area is generally from north to south is an essential physical process to consisting of algae; attached to stream (Ashworth and Stein 2005, Figure 8). maintain stream habitats for Devils substrates; and other microorganisms These aquifers are currently pumped to River minnow. associated with stream substrates. provide water for human uses including (4) Aquatic stream habitat either agricultural, municipal, and industrial Primary Constituent Elements for the devoid of nonnative aquatic species (Ashworth and Stein 2005, p. 1; Green Devils River Minnow (including fish, plants, and et al. 2006, pp. 28–29; LBG-Guyton Within the geographical area we know invertebrates) or in which such Associates 2001, pp. 22–27; PWPG to be occupied by the Devils River nonnative aquatic species are at levels 2006, pp. 3–14, 3–15). Some parts of minnow, we must identify the physical that allow for healthy populations of these aquifers have already experienced and biological features within the Devils River minnows. large water level declines due to a geographical area occupied by the (5) Areas within stream courses that combination of pumping withdrawals Devils River minnow at the time of may be periodically dewatered for short and regional drought (Barker and Ardis listing that are essential to the time periods, during seasonal droughts, 1996, p. B50). There are a number of

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preliminary project plans to project must be included in the p. 1; Robertson and Winemiller 2001, p. significantly increase the amount of groundwater management area’s 220). The armored catfish may already groundwater pumped in this area to regional water plan. The total be impacting Devils River minnows in export it to other metropolitan centers groundwater allotments permitted by San Felipe Creek through competition (HDR Engineering Inc. 2001, p. 1–1; the groundwater management area must for common food resources of attached Khorzad 2002, p. 19; PWPG 2006, pp. 4– not exceed its managed available algae and associated microorganisms 54). If the aquifers are pumped beyond groundwater level. Val Verde is (Lopez-Fernandez and Winemiller 2005, their ability to sustain levels that Groundwater Management Area 7 and p. 250). Hoover et al. (2004, pp. 6–7) support spring flows, these streams will Kinney County is within Groundwater suggest that nonnative catfishes in the no longer provide habitat for the Devils Management Areas 7 and 10. family Loricariidae, such as armored River minnow (Ashworth and Stein Currently, there is no groundwater catfish, will impact stream systems and 2005, p.34; Edwards et al. 2004, p. 256; district in Val Verde County. Absent a native fishes by competing for food with Garrett et al. 2004, pp. 439–440). Flow local groundwater district, groundwater other herbivores, changing plant reductions can have indirect effects on resources in Texas are generally under communities, causing bank erosion due fishes by impacting thermal regimes the ‘‘Rule of Capture,’’ (Holladay 2006, to burrowing in stream banks for because higher water volumes buffers p. 2; Potter 2004, p. 9) or subject to the spawning, incidentally ingesting fish against temperature oscillations (Hubbs groundwater management area plans. eggs, and directly preying on native 1990, p. 89). The rule of capture essentially provides fishes (Wiersma 2007, p. 5). Groundwater pumping that could that groundwater is a privately owned Problematic, nonnative species have not affect stream flows within the Devils resource and, absent malice or willful been documented in Pinto Creek. River minnow’s range is subject to local waste, landowners have the right to take c. Pollution. Special management management control. State or Federal all the water they can capture under actions are needed to prevent point and agencies do not control groundwater. their land (Holladay 2006, p. 2; Potter nonpoint sources of pollution entering Local groundwater conservation 2004, p. 1). The regional water plan the stream systems where the Devils districts and groundwater management adopted by the Plateau Regional Water River minnow occurs. Devils River and areas are the method for groundwater Planning Group for this area recognizes Pinto Creek are generally free of threats management in Texas and essentially that groundwater needs to be managed from obvious sources of pollution. San replace the rule of capture where they for the benefit of spring flows (PWPG Felipe Creek is in an urban environment exist (Caroom and Maxwell 2004, pp. 2006, p. 3–30) and that groundwater use where threats from human-caused 41–42; Holladay 2006, p. 3). Most should be limited so that ‘‘base flows of pollution are substantial. Potential for districts are created by action of the rivers and streams are not significantly spill or discharge of toxic materials is an Texas Legislature (Lesikar et al. 2002, p. affected beyond a level that would be inherent threat in urban environments. 13). The regulations adopted by local anticipated due to naturally occurring In addition, there are little to few groundwater conservation districts vary conditions’’ (Ashworth and Stein 2005, current controls in the City of Del Rio across the State and often reflect local p. 34; PWPG 2006, p. 3–8). The Plateau to minimize the pollutants that will run decisions based on regional preferences, Regional Water Plan is a non-regulatory off into the creek during rainfall events geologic limitations, and the needs of water planning document for a 6-county from streets, parking lots, roof tops, and citizens (Holladay 2006, p. 3). The area (including both Val Verde and maintained lawns from private yards KCGCD is a local authority with some Kinney counties) that maps out how to and the golf course (Winemiller 2003, p. regulatory control over the pumping and conserve water supplies, meet future 27). All of these surfaces will contribute use of groundwater resources in Kinney water supply needs, and respond to pollutants (for example, fertilizers, County (Brock and Sanger 2003, p. 42– future droughts. pesticides, herbicides, petroleum 44). The KCGCD intends to manage the Special management efforts are products) to the creek and potentially groundwater in Kinney County on a needed across the range of the Devils impact biological functions of the Devils sustainable basis and yet beneficially River minnow to ensure that aquifers River minnow. In addition, trash is use the groundwater without exploiting are used in a manner that will sustain often dumped into or near the creek and or adversely affecting the natural flow of spring flows and provide water as an can be a source of pollutants (City of Del the intermittent streams, such as Pinto essential physical feature for the Rio 2006, p. 11). Special management by Creek. Additional scientific information species. We would like to work the City of Del Rio is needed (City of Del is needed on the geology and hydrology cooperatively with landowners, Rio 2006, p. 13) to institute best in Kinney County to increase the conservation districts, and others to management practices for controlling knowledge on the relationships of assist in accomplishing these pollution sources that enter the creek groundwater and stream flows. management needs. and maintain the water quality at a level The 16 groundwater management b. Nonnative Species. Controlling necessary to support Devils River areas in Texas include all of the state’s existing nonnative species and minnow. major and minor aquifers. Each GMA is preventing the release of new nonnative Special management actions may be required to determine a future desired species are special management actions needed to ensure appropriate best groundwater condition for their needed across the range of the Devils management practices are used in the aquifers. Based on the desired future River minnow. The best tool for exploration and development of condition specified, the Texas Water preventing new releases is education of petroleum resources in the watersheds Development Board determines a the public on the problems associated of the Devils River minnow, particularly managed available groundwater level for with nonnative species (Aquatic the Devils River (Smith 2007, p. 1). This the groundwater management area. Nuisance Species Task Force 1994, pp. will ensure that site development and Lands outside of a groundwater 16–17). Current nonnative species drilling practices do not impact conservation district, such as Val Verde issues have been cited for possible groundwater or surface water quality in County, are not subject to groundwater impacts to the Devils River (smallmouth habitats of the Devils River minnow. pumping regulations unless a bass) and San Felipe Creek (armored d. Stream Channel Alterations. The landowner seeks State funding for a catfish) (Lopez-Fernandez and stream channels in the three streams groundwater project. In this case, the Winemiller 2005, p. 247; Thomas 2001, where Devils River minnow occurs

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should be maintained in natural streams is a tributary of the Rio Grande, Designation’’ section for additional conditions, free of instream obstructions we do not expect any contemporary occupancy information). The life to fish movement and with intact stream exchange of individuals between these expectancy of Devils River minnow is banks of native vegetation. Devils River stream segments. The Devils River assumed to be about 3 years, although and Pinto Creek are generally free of minnow is generally associated with individuals have lived 5 years in stream channel alterations; however, upstream reaches of these streams, and captivity (Gibson 2007, p. 1). This San Felipe Creek has been altered by connectivity would require movement represents new information compared to diversion dams, bridges, and armoring through downstream reaches, through the estimate of 2 years life expectancy of stream banks (replacing native the Rio Grande, and back upstream from the recovery plan (Service 2005 p. vegetation and soils with rock or through uninhabited reaches. The 2.2–3). Ten years is estimated to concrete). Special management is Devils River minnow has not been represent a time period that provides for needed in all three occupied streams to documented in the Rio Grande, or any at least three generations. We believe protect the integrity of the stream other of its tributaries in the United that a time period that provides for at channels for the maintenance of the States in modern times (Contreras- least three generations allows adequate PCEs. Balderas et al. 2002, pp. 228–240; time to detect occupancy because the Edwards et al. 2002, p. 123; Garrett et Criteria Used To Identify Critical time period would encompass potential al. 1992, pp. 261–265; Hoagstrom 2003, Habitat fluctuations in species abundance p. 95; Hubbs 1957, p. 93; Hubbs 1990, associated with seasonal or annual We are designating critical habitat for p. 90; Hubbs et al. 1991, p. 18; Trevin˜ o- changes. Based on our biological the Devils River minnow in areas that Robinson 1959, p. 255). The mainstem expertise, it is reasonable to assume that were occupied by the species at the time Rio Grande is considered unsuitable combining life expectancy with of listing and that contain PCEs in the habitat (Garrett et al. 1992, p. 261) environmental factors that may occur in quantity and spatial arrangement to because the aquatic habitat is very a 10-year period will provide us with an support life history functions essential different (larger volume, higher indication of habitat occupancy. We for the conservation of the species. We suspended sediments, different suite of expect a variety of environmental are also designating critical habitat in native fishes) than the streams where factors such as floods, droughts, and areas not considered to be occupied at the Devils River minnow is found. The average precipitation and hydrologic the time of listing, but were presence of Amistad Reservoir and Dam conditions would be experienced over a subsequently discovered to be occupied has further isolated the Devils River 10-year period. Most stream segments and are essential for the conservation of stream segment from the other stream have not been surveyed with a high the Devils River minnow. segments. While some exchange of degree of frequency, and this species Critical habitat is designated based on individuals could have occurred across sufficient PCEs being present to support can be difficult to detect, as even a geologic time scale, any natural multiple samples within a short time in the life processes of the species. Some exchange of individual Devils River areas contain all PCEs and support the same location by the same minnows between currently occupied researcher can yield different results multiple life processes. Some areas streams in modern times is unlikely contain only a portion of the PCEs (Garrett et al. 2002, p. 478). If Devils because of habitat changes in the Rio River minnow are not documented in a necessary to support the particular use Grande, nonnative species, and of that habitat. 10-year period, which would encompass potential instream barriers. at least 3 generations and variable a. Range. We evaluated the Lack of access to private property can environmental conditions that could geographical range of the Devils River limit opportunities to sample for the influence fish abundance and detect minnow, as described in the Recovery presence of Devils River minnow (such ability, we will consider that stream not Plan (Service 2005, p. 1.4.1–1.4.5). as occurred on Pinto Creek, see Garrett occupied. There are five stream segments in the et al. 2004, p. 436) and may limit our United States (all in Texas) that have ability to accurately determine the full c. Areas Occupied at the Time of ever been known to have been occupied range of the species. However, we do Listing. At the time the Devils River by the Devils River minnow: (1) The not expect any additional streams minnow was listed as a threatened Devils River (Val Verde County) from outside of the known historical range of species, it was only confirmed to occur Beaver Lake downstream to near the the species to be occupied. There could at two sites on the Devils River (small confluence with the Rio Grande; (2) San be additional stream segments within tributaries) and in San Felipe Creek in Felipe Creek (Val Verde County) from the known range that may be found to the City of Del Rio, Texas (64 FR 56597). the headsprings on the Lowe Ranch to be occupied during future surveys, but This species is reasonably expected to downstream of the City of Del Rio; (3) the best available information at this move throughout connected stream Sycamore Creek (Val Verde/Kinney time supports only these five stream reaches, based on past and recent county boundary), only documented segments known to be or to have been collection records from these streams from the Highway 277 Bridge crossing; occupied by Devils River minnow in the (Garrett et al. 2002, p. 478). Therefore, (4) Pinto Creek (Kinney County) from United States. we determine there are two stream Pinto Springs downstream to 0.5 stream b. Occupancy. We have assessed the segments that were occupied at the time km (0.3 stream mi) upstream of the occupancy of streams based on the best of listing: (1) Devils River from Pecan Highway 90 Bridge crossing; and (5) Las survey information available. For the Springs to downstream of Dolan Falls Moras Creek (Kinney County), only purpose of this critical habitat (Garrett 2006a, p. 4; Garrett 2007, p. 1); documented from the Las Moras Spring designation, we consider a stream and (2) San Felipe Creek from the Head in the City of Brackettville. segment to be occupied if Devils River Spring to downstream through the City Each of these five stream segments minnow has been found to be present by of Del Rio (Garrett 2006b, p. 1; Garrett has (or formerly had) isolated species experts within the last 10 years, 2007, p.1). The full extent of both populations of Devils River minnow or where the stream segment is directly stream segments is considered separated by long distances, unsuitable connected to a segment with occupied, as surveys in the last 10 years habitat, or large dams that prevent fish documented occupancy within the last have confirmed the species’ presence in movements. Although each of these 10 years (see the ‘‘Critical Habitat the streams and the unit consists of

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contiguous habitat that allows fish In addition, maintaining a population in minnow. Three peer reviewers movement throughout the stream. Pinto Creek is included in the recovery expressed specific support for including Because no collections had been made criteria (Service 2005, p. 2.1–2) and Las Moras and Sycamore creeks in the in Pinto Creek prior to the time of Pinto Creek provides the best source of critical habitat designation for the listing, we have chosen to treat this Devils River minnows (due to proximity following reasons: (1) To maintain stream as unoccupied for the purposes and habitat similarity) to implement suitable habitat within its range because of this designation (see the description possible future recovery actions if if left undesignated, the PCEs currently of Pinto Creek under ‘‘Areas Not reestablishing the species into nearby present will fall out of range and Occupied at Time of Listing’’ section). Las Moras Creek proves feasible (Garrett potential use for the recovery of the d. Primary Constituent Elements. We et al. 2004, p. 440). As a result of this species will be lost; (2) to protect are proposing to designate the stream finding, it is not necessary to determine genetic diversity within the range of the segments that we have determined to be whether Pinto Creek was occupied at species; (3) including them may be occupied at the time of listing and the time of listing for purposes of this important for future recovery efforts, contain sufficient PCEs to support life particular rule. based on metapopulation theory that history functions essential for the Sycamore Creek and Las Moras Creek. unoccupied patches are not less conservation of the species. Both of the For the purposes of the designation of important than the occupied ones; (4) stream segments occupied at the time of critical habitat, Sycamore Creek and Las not including them as ecologically listing (Devils River and San Felipe Moras Creek are not currently significant stream segments would be Creek) contain sufficient PCEs to considered occupied by the Devils River possibly detrimental to the species over support life history functions essential minnow (that is, they have not been time; and (5) if the creeks are for the conservation of the Devils River collected in either stream in the last 10 determined not to provide essential minnow. years). The last known occurrence of the habitat elements, they could be removed e. Areas Not Occupied at Time of species in these stream segments was from the designation later or the habitat Listing. Section 3(5)(A)(ii) of the Act 1989 for Sycamore Creek (Garrett et al. could be improved by future allows for critical habitat to be 1992, p. 265) and 1955 for Las Moras management. Three peer reviewers did designated in areas outside the Creek (Garrett et al. 1992, p. 266; Hubbs not call for the inclusion of Las Moras geographical area occupied by the and Brown 1956, pp. 70–71). Although and Sycamore creeks in the designation. species at the time it is listed if those recent publications continue to list However, two of those peer reviewers areas are essential for the conservation Sycamore Creek as a stream where stressed that recovery of the Devils of the species. Three stream segments Devils River minnow may still occur River minnow would need to include historically occupied by Devils River (Garrett et al. 2004, p. 435; Lopez- restoring the species to these streams to minnow but not considered occupied at Fernandez and Winemiller 2005, p. maintain genetic diversity and the time of listing are Pinto Creek, 247), we have a high degree of population redundancy and encouraged Sycamore Creek, and Las Moras Creek. uncertainty as to the status of the fish us to continue to work on these efforts. Pinto Creek. At the time of listing in in Sycamore Creek. Surveys in 1999 and Based on these comments and the 1999, previous fish surveys in Pinto 2002 from the area of last known guidance in the Devils River Minnow Creek were limited to the locations of occurrence (in 1989) did not yield Recovery Plan we have determined public access at highway bridge Devils River minnow (Service 2005, these streams are essential for the crossings and did not find the species Appendix A). In addition, Garrett et al. conservation of the species. The present (Garrett et al. 1992, p. 260). In (1992, pp. 265–266) surveyed portions delisting recovery criteria (1) in the 2001, fish surveys were conducted in of Mud Creek (a tributary to Sycamore Recovery Plan states that we have stable upstream areas of Pinto Creek that had Creek) in 1989, but found no Devils or increasing population trends for at not been sampled before; the surveys River minnow. Additional surveys are least 10 years throughout the range of discovered a previously unknown needed to determine the current status the Devils River (middle portion), San population of Devils River minnow of the fish in the Sycamore Creek Felipe Creek, Sycamore Creek, and (Garrett et al. 2004, pp. 436–439). The watershed. Devils River minnow has not Pinto Creek and the species should be species has been confirmed to occur been collected from Las Moras Creek reestablished in Las Moras Creek, if from just upstream of the Highway 90 since the 1950s and is believed to be scientifically feasible (Service 2005, p. Bridge crossing further upstream to the extirpated from the Las Moras Creek iv). We explain in the following origin of Pinto Creek at Pinto Springs drainage. This conclusion is based on discussion our finding that these two (Garrett et al. 2004, pp. 438–439). Since the absence of the species in sampling streams are essential. However, we are this stream segment is isolated from efforts from the late 1970s to 2002 excluding these areas from critical other occupied areas, this stream (Hubbs et al. 1991, p. 18; Garrett et al. habitat because we find the benefits of segment was likely occupied at the time 1992, p. 266; Garrett et al. 2002, p. 479). excluding them outweigh the benefits of of listing, but appropriate surveys had In our proposed critical habitat including them (see the ‘‘Exclusions not been conducted to verify it. We find designation for Devils River minnow we under Section 4(b)(2) of the Act’’ section that the Pinto Creek stream segment is specifically requested information from of this final rule for further details). essential to the conservation of the the public and peer reviewers regarding Because the recovery objectives, Devils River minnow because whether or not Sycamore and Las Moras criteria, and strategy include having preliminary analysis has shown creeks should be considered essential populations of Devils River minnow in significant genetic variation between for the conservation of the Devils River Sycamore Creek and Las Moras Creek (if Devils River minnow populations in minnow (72 FR 41687). Additionally, reestablishment is technologically Pinto Creek and the Devils River these streams were also included in our feasible) (Service 2005, pp. 2.1–1—2.2– (Conway et al. 2007, pp. 9–10). This draft economic analysis. We received 3), we find that these two streams are makes Pinto Creek a unique population several comments, including from essential for the conservation of the of Devils River minnow and an essential multiple peer reviewers, encouraging us Devils River minnow. Restoring Devils unit to maintain overall genetic to include these streams in the critical River minnow to Sycamore Creek and diversity of the species to improve the habitat because of their importance in Las Moras Creek is important to likelihood of persistence in the future. the recovery of the Devils River achieving recovery goals for the species

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and optimizes the chances of long-term that averages 1.5 years (Leopold 1994, Within this final rule, the critical species conservation because these pp. 129–141). The width of the lateral habitat boundary is limited to bankfull creeks are isolated, vulnerable to extent of critical habitat will vary width of the stream segments included threats, and therefore not likely to be depending on the stream geometry; in the designation, at the height in naturally recolonized (Service 2005, p. however, it generally includes the which stream flows just fill the stream 2.2–2). As discussed in the recovery immediate streamside vegetation that to its banks before water spills out onto plan, the feasibility of restoring can extend into the water column and the adjacent floodplain. The scale of the populations in these areas is uncertain provide vegetative structure, one of the critical habitat maps prepared under the and the recovery plan provides no PCEs. parameters for publication within the information as to which specific reaches The critical habitat areas include the Code of Federal Regulations may not of the creeks could support the restored stream channels up to bankfull width reflect the exclusion of developed areas populations. The recovery plan advises within the identified stream reaches. such as bridge pylons, concrete paving, additional assessment to develop an The stream beds of navigable waters and other similar structures that lack effective restoration strategy. (stream beds of at least 30 ft wide) in PCEs for the Devils River minnow. Landowner willingness and cooperation Texas are generally owned by the State, Areas under bridge pylons and concrete will be necessary in both streams before in trust for the public, while the lands paving do not contain PCEs, and we are restoration could occur and will require alongside the streams can be privately excluding them from the boundaries of owned (Kennedy 2007, p. 3; Riddell using tools specifically designed for critical habitat, although the structures 1997, p. 7). We believe that the bulk of restoration efforts, such as Safe Harbor are too small to digitally delete from the stream beds (including the small Agreements and reintroduction as an maps at the scale that we used to experimental population under section portion of the stream beds’ lateral extent delineate the critical habitat boundaries. 10(j) of the Act. that is not under water when streams f. Lateral Extent. The areas designated are not at bankfull stage) for all stream Any such structures and the land under as critical habitat are designed to segments included in the critical habitat them inside critical habitat boundaries provide sufficient areas for breeding and are considered public property, owned shown on the maps of this final rule are non-breeding adults and rearing of by the State, for the purpose of this rule. not designated as critical habitat. Some juvenile Devils River minnow. In Summary. We are designating critical such structures likely exist only within general, the essential physical and habitat in areas that we have determined the San Felipe Creek Unit. Therefore, biological features of critical habitat for were occupied at the time of listing, and Federal actions limited to these areas Devils River minnow include the spring that contain sufficient PCEs to support would not trigger section 7 consultation, heads and the wetted channel during life history functions essential for the unless they affect the species or PCEs in average flow conditions of the stream conservation of the species. Stream adjacent critical habitat. segments. The Devils River minnow segments are designated based on Final Critical Habitat Designation evolved in streams maintained by sufficient PCEs being present to support consistent flows from groundwater the life processes of the species. Some Five areas meet the definition of springs that varied little seasonally. stream segments contain all PCEs and critical habitat for the Devils River Episodic floods, sometimes very large support multiple life processes. Some minnow. The five areas are: (1) Devils floods, are important hydrological stream segments contain only a portion River Unit; (2) San Felipe Creek Unit; processes for maintaining the natural of the PCEs necessary to support the (3) Pinto Creek Unit; (4) Sycamore stream channels and fish communities particular use of that habitat. For stream Creek; and (5) Las Moras Creek. The (Harrell 1978, p. 67; Valdes Cantu and segments that were not occupied at the Devils River, San Felipe Creek, and Winemiller 1997, pp. 276–277). time of listing, we evaluated whether Pinto Creek units are currently occupied However, the streams do not have a those areas were essential to the by the Devils River minnow and all five regular seasonal pattern of flooding. conservation of the Devils River areas constitute our best assessment of Unlike some other stream fishes, the minnow. areas that meet the definition of critical Devils River minnow is not known to be We find that two stream segments habitat for the species. dependent on high flow events or use were occupied at the time of listing and flooded habitats in overbank areas for contain sufficient PCEs to support life All distances reported in this reproduction or rearing of young. history functions essential for the designation are estimated stream lengths Therefore, the floodplain is not known conservation of the species: (1) Devils calculated using geographic information to contain the features essential for the River from Pecan Springs to system computer software (ArcGIS) conservation of the Devils River downstream of Dolan Falls, including approximating the stream channel minnow and is not included in this short stretches of two tributaries, (reported in stream km and stream mi). critical habitat designation. Phillips Creek and Dolan Creek; and (2) Stream channel lines were based on the The critical habitat designation San Felipe Creek from the headsprings National Hydrography Dataset and 7.5’ includes a lateral extent that is limited downstream through the City of Del Rio, topographic quadrangle maps obtained to the normal wetted channel at including the outflow channels of East from the U.S. Geological Survey. We bankfull discharge of the streams and West Sandia springs. We find that made some minor adjustments using the included in this designation. For the a third stream segment, Pinto Creek 2004 National Agriculture Imagery purposes of this designation, the wetted from Pinto Springs downstream to the Program digital orthophotos obtained channel is considered the width of the Highway 90 Bridge crossing, was from the Texas Natural Resources stream channel at bankfull stage. subsequently discovered to be occupied Information System. The approximate Bankfull stage is the water height when after listing and, for purposes of this length of each designated stream stream flows just fill the stream to its rule, is essential for the conservation of segment for each critical habitat unit is banks before water spills out onto the the Devils River minnow for the reasons shown in Table 1. Critical habitat for adjacent floodplain (Gordon et al. 1992, discussed above. We also find that Devils River minnow includes a total of pp. 305–307). The stream discharge that Sycamore Creek and Las Moras Creek 73.5 stream km (45.7 stream mi) that reaches bankfull stage occurs 1 or 2 days are essential for the conservation of the meet the definition of critical habitat for each year and has a recurrence interval Devils River minnow. this species.

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TABLE 1—CRITICAL HABITAT UNITS FOR THE DEVILS RIVER MINNOW

Stream km (stream mi) meeting the Stream km (stream Critical habitat Critical habitat unit * definition of mi) excluded from stream km critical habitat critical habitat (stream mi)

1. Devils River Unit (includes Philips and Dolan Creeks) ...... 47.0 (29.2) 47.0 (29.2) 0 (0) 2. San Felipe Creek Unit (includes outflow of East and West springs) ...... 9.0 (5.6) 0 (0) 9.0 (5.6) 3. Pinto Creek Unit ...... 17.5 (10.9) 0 (0) 17.5 (10.9) 4. Sycamore Creek Unit ...... 4.0 (2.5) 4.0 (2.5) 0 (0) 5. Las Moras Creek Unit ...... 18.8 (11.7) 18.8 (11.7) 0 (0)

Total ...... 96.3 (59.9) 69.8 (43.4) 26.5 (16.5) * The stream beds of the units meeting the definition of critical habitat are considered public and owned by the State of Texas.

Below, we provide brief descriptions the Devils River minnow by TPWD outflow of San Felipe Springs East. The of the Devils River, San Felipe Creek, (Garrett 2007, p. 1). upstream boundary on San Felipe Creek and Pinto Creek, Sycamore Creek, and The Devils River Unit contains one or is the Head Springs located about 1.1 Las Moras Creeks units and reasons why more of the PCEs essential for stream km (0.7 stream mi) upstream of each meets the definition of critical conservation of the Devils River the Jap Lowe Bridge crossing. The habitat for the Devils River minnow. minnow. Special management in the downstream boundary on San Felipe Devils River Unit may be needed to Creek is in the City of Del Rio 0.8 stream Unit 1: Devils River Unit control groundwater pumping to ensure km (0.5 stream mi) downstream of the Unit 1 consists of approximately 43.6 spring flows are maintained and to Academy Street Bridge crossing. The stream km (27.1 stream mi) of the Devils prevent the introduction of nonnative unit includes the outflow channels of River; 1.1 stream km (0.7 stream mi) of species. See additional discussion above San Felipe Springs West and San Felipe Phillips Creek; and 2.3 stream km (1.4 in the ‘‘Special Management Springs East. These channels are stream mi) of Dolan Creek. Phillips Considerations or Protections’’ section. included in the critical habitat unit from Creek and Dolan Creek are small Areas meeting the definition of their spring origin downstream to the tributaries to the Devils River that critical habitat for Devils River minnow confluence with San Felipe Creek. contain the PCEs and are occupied by do not include lands adjacent to the Including all three streams, the total the Devils River minnow. The upstream stream channels. However, land distance included in the critical habitat boundary on the Devils River is at, and ownership adjacent to the streams in the in the San Felipe Creek Unit is includes, Pecan Springs. The Devils River Unit is primarily private. approximately 9.0 stream km (5.6 downstream boundary on the Devils Private ownership of the area includes stream mi). For specific coordinates of River is 3.6 stream km (2.2 stream mi) The Nature Conservancy’s 1,943-ha the boundaries for the critical habitat below Dolan Falls. Phillips Creek is (4,800-ac) Dolan Falls Preserve, which designation, please reference to the unit included in this unit from the also includes river frontage on the descriptions in the Regulation confluence with the Devils River to a Devils River and Dolan Creek. The Promulgation section below. San Felipe Creek was occupied by the point 1.1 stream km (0.7 stream mi) Nature Conservancy has owned this area Devils River minnow at the time of upstream. Dolan Creek is included from since 1991 (The Nature Conservancy 2004, p. 9). The Nature Conservancy listing and is still occupied (Hubbs and the confluence with the Devils River 2.3 Brown 1956, p. 70; Garrett et al. 1992, stream km (1.4 stream mi) upstream to also holds conservation easements on about 66,800 ha (about 165,000 ac) of pp. 261, 265; Service 2005, Appendix A; Dolan Springs. Including all three Lopez-Fernandez and Winemiller 2005, streams, the total distance in the Devils private land along the Devils River or in the Devils River watershed (McWilliams p. 249). Although limited survey data River Unit is approximately 47.0 stream are available, we consider the entire km (29.2 stream mi). 2006, p. 1). The only public land adjacent to the streams of this unit is the unit occupied because the habitat is The Devils River minnow was State-owned Devils River State Natural contiguous, allowing fish to move in the originally described from this unit in Area (DRSNA) managed by the TPWD. upstream portions of the unit (Garrett the 1950s (Hubbs and Brown 1956, p. The portion of this unit within the 2006b, p. 1). The boundaries of critical 70), and it has been continually DRSNA includes about 1.6 stream km habitat include all areas where TPWD occupied ever since (Harrell 1978, pp. (1.0 stream mi) along the east bank of has collected Devils River minnow 64, 67; Garrett et al. 1992, p. 261; the Devils River and about 1.9 stream within the San Felipe Creek Unit Service 2005, Appendix A). The Devils km (1.17 stream mi) along both banks of (Garrett 2007, p. 1). River minnow occupied this unit at the a portion of Dolan Creek. The San Felipe Creek Unit contains time of listing; at that time, the fish had As described below, we are excluding one or more of the PCEs essential for been collected from only a few the Devils River Unit from the critical conservation of the Devils River locations. Subsequent surveys by TPWD habitat designation for Devils River minnow. There are several unnatural have established current occupancy of minnow (see the ‘‘Exclusions Under barriers to fish movement that may this entire unit (Service 2005, Appendix Section 4(b)(2)’’ section). currently segment the reaches within A). The upstream boundary of critical the City of Del Rio. Portions of the habitat represents the beginning of the Unit 2: San Felipe Creek Unit stream banks in the City of Del Rio have permanent flow of the river (De La Cruz Unit 2 consists of approximately 7.9 been significantly altered by arming 2004, p. 1). The downstream boundary, stream km (4.9 stream mi) on San Felipe with concrete and the invasion of an 3.6 stream km (2.2 stream mi) Creek, 0.8 stream km (0.5 stream mi) of exotic cane (Arundo donax). However, downstream of Dolan Falls, represents the outflow of San Felipe Springs West, much of the riparian area remains a the downstream extent of collections of and 0.3 stream km (0.2 stream mi) of the functional part of the stream ecosystem,

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contributing to the physical (for the Regulation Promulgation section Sycamore Creek was not considered example, stream bank stabilization and below. occupied by Devils River minnow at the water runoff filtration) and biological Pinto Creek was not considered time of listing. Sycamore Creek is (for example, invertebrate communities occupied by Devils River minnow at the essential for the conservation of the using riparian vegetations and input of time of listing; however, Devils River Devils River minnow because it is nutrient material from riparian minnows were documented in 2001 in identified as a necessary population to vegetation) features of Devils River upstream reaches of the creek where achieve recovery (Service 2005, p. 2.1– minnow habitat. Water quality in San fish surveys had not been previously 2). The main threat to Sycamore Creek Felipe Creek has been a concern due to conducted (Garrett et al. 2004, pp. 437). that requires special management is the the urban environment through which The Pinto Creek Unit is essential for the potential for large-scale groundwater much of the creek flows. Potential for conservation of the Devils River withdrawal that, in combination with spill or discharge of toxic materials is an minnow because fish from this stream natural hydrological variation, could inherent threat in urban environments show significant genetic variation from significantly impact spring flows. While (City of Del Rio 2006, p. 13). The threats other populations (Service 2006, p. 15). nonnative species are not currently to the San Felipe Creek Unit that require Because of its proximity to Las Moras known to be a problem in Sycamore special management include the Creek and the genetic variation from the Creek, preventing nonnative species potential for large-scale groundwater more western population, fish from from being introduced into the stream is withdrawal and exportation that would Pinto Creek would be the likely source an additional threat needing special impact spring flows, surface water population for possible future management. Land ownership adjacent diversion, pollution from urban runoff, reintroduction into formerly occupied to Sycamore Creek is all private. nonnative vegetation on stream banks, areas (Garrett et al. 2004, p. 440). Unit 5: Las Moras Creek other nonnative species (such as the The boundaries of critical habitat armored catfish), and potential new represent all the areas within Pinto The only confirmed habitat for Devils nonnative species’ introductions into Creek where Devils River minnow has River minnow in Las Moras Creek is at the stream. been collected (Garrett et al. 2004, p. the headwater spring on the grounds of Land ownership adjacent to the 437–438). Further, the Pinto Creek Unit Fort Clark in Brackettville based on streams areas being designated as contains one or more of the PCEs collections in the 1950s (Garrett et al. critical habitat within the San Felipe essential for conservation of the Devils 1992, p. 266; Brune 1981, p. 275). Based Creek Unit includes private ranch lands on this information and the longitudinal from the Head Springs downstream to River minnow. The main threat to the Pinto Creek Unit that requires special distribution of the fish in Pinto Creek the City of Del Rio. Within the city and San Felipe Creek, we estimate that limits, the City owns various tracts of management is the potential for large- scale groundwater withdrawal that, in the critical habitat extends land along the stream. Some of these approximately 18.8 stream km (about areas are developed as public use parks combination with nature hydrological variation, could significantly impact 11.7 stream mi) downstream from Las and others have been recently obtained Moras Spring to the Standard Pacific through a buyout program from the spring flows. While nonnative species are not currently known to be a problem Railroad bridge crossing. Federal Emergency Management Agency Las Moras Creek was not considered following damages from the 1998 flood in Pinto Creek, preventing nonnative species from being introduced into the occupied by Devils River minnow at the (City of Del Rio 2006, pp. 5–6). Most of time of listing. Las Moras Creek is the City-owned property along the creek stream is an additional threat needing special management. Land ownership essential for the conservation of the appears to be on the east bank of the Devils River minnow because it is creek, while the west bank is primarily adjacent to the Pinto Creek Unit is all private ranches. identified as a necessary population to private-owned residences. The San achieve recovery (Service 2005, p. 2.1– Felipe Springs East and West and their Unit 4: Sycamore Creek 2). The main threat to Las Moras Creek immediate outflow channels are on a that requires special management is the golf course, privately owned by the San The documented habitat for Devils River minnow in Sycamore Creek is at potential for large-scale groundwater Felipe Country Club. In all, we estimate withdrawal that, in combination with that the City of Del Rio owns about 1.1 the U.S. Highway 277 bridge (Garrett et al. 1992, p. 265). Based on this natural hydrological variation, could stream km (0.7 stream mi) along both significantly impact spring flows. banks of the creek and spring outflow information, we have estimated a critical habitat area of 4 stream km Special management is also needed channels, mainly located downstream of within the local watershed to maintain the Highway 90 Bridge. Through the (about 2.5 stream mi) encompassing this site. Garrett et al. (1992, p. 265–266) water quality and stream flows. While remainder of the City of Del Rio, we nonnative species are not currently estimated the City of Del Rio owns recognized that the majority of surface flow in the drainage comes from Mud known to be a problem in Las Moras about 2.2 stream km (1.4 stream mi) Creek, preventing nonnative species along the east bank of San Felipe Creek Creek, an eastern tributary that confluences with Sycamore Creek from being introduced into the stream is in parcels fragmented by private an additional threat needing special holdings. approximately 3 stream km (about 2 stream mi) upstream of the U.S. management. Land ownership adjacent Unit 3: Pinto Creek Unit Highway 277 bridge crossing. The origin to Las Moras Creek includes the Fort Unit 3 consists of approximately 17.5 of the surface flows in Mud Creek is Clark Springs Association in the upper stream km (10.9 stream mi) on Pinto Mud Springs, located about 24 air km portion of the reach and the remainder Creek. The upstream boundary is Pinto (about 15 air mi) north of U.S. Highway is all private. Springs. The downstream boundary is 277 crossing of Sycamore Creek and Effects of Critical Habitat Designation 100 m (330 ft) upstream of the Highway north of the U.S. Highway 90 (Brune 90 Bridge crossing of Pinto Creek. For 1981, p. 276). Despite collection efforts Section 7 Consultation specific coordinates of the boundaries from Mud Creek, Devils River minnow Section 7(a)(2) of the Act requires for the critical habitat designation, has not been documented to occur there Federal agencies, including the Service, please reference the unit descriptions in (Garrett et al. 1992, p. 266). to ensure that actions they fund,

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authorize, or carry out are not likely to existence of the listed species or consultation was completed in 2006 jeopardize the continued existence of a destroying or adversely modifying with the Federal Highway listed species or destroy or adversely critical habitat. Administration, through the Texas modify designated critical habitat. Reasonable and prudent alternatives Department of Transportation, to Decisions by the Fifth and Ninth Circuit can vary from slight project replace the Beddell Avenue Bridge over Court of Appeals have invalidated our modifications to extensive redesign or San Felipe Creek in the City of Del Rio. definition of ‘‘destruction or adverse relocation of the project. Costs One substantial informal consultation modification’’ (50 CFR 402.02) (see associated with implementing a was completed in 2001 with the Gifford Pinchot Task Force v. U.S. Fish reasonable and prudent alternative are Environmental Protection Agency for and Wildlife Service, 378 F. 3d 1059 similarly variable. funding through the TWDB to the City (9th Cir 2004) and Sierra Club v. U.S. Regulations at 50 CFR 402.16 require of Del Rio to upgrade the City’s water Fish and Wildlife Service et al., 245 F.3d Federal agencies to reinitiate treatment and distribution facilities. 434, 442F (5th Cir 2001)), and we do not consultation on previously reviewed One programmatic consultation was rely on this regulatory definition when actions in instances where we have completed with NRCS in 2004 analyzing whether an action is likely to listed a new species or subsequently concerning USDA programs for brush destroy or adversely modify critical designated critical habitat that may be management in the western portions of habitat. Under the statutory provisions affected and the Federal agency has Texas. This consultation concluded that of the Act, we determine destruction or retained discretionary involvement or the proposed actions were likely to adverse modification on the basis of control over the action (or such result in benefits to the Devils River whether, with implementation of the discretionary involvement or control is minnow by improving instream flows in proposed Federal action, the affected authorized by law). Consequently, the streams where the species occurs. critical habitat would remain functional Federal agencies may sometimes need to The nature of the proposed brush (or retain the current ability for the PCEs request reinitiation of consultation with clearing was not considered to have to be functionally established) to serve us on actions for which formal adverse affects (such as sedimentation) its intended conservation role for the consultation has been completed, if to Devils River minnow. Seven other species. those actions may affect subsequently informal consultations have occurred in If a species is listed or critical habitat listed species or designated critical the range of the species since its listing is designated, section 7(a)(2) of the Act habitat. in 1999 which only peripherally requires Federal agencies to ensure that Federal activities that may affect the involved Devils River minnow. Since activities they authorize, fund, or carry Devils River minnow or its designated the listing we provided technical out are not likely to jeopardize the critical habitat will require section 7 assistance on five other projects that continued existence of the species or to consultation under the Act. Activities considered Devils River minnow but destroy or adversely modify its critical on State, Tribal, local, or private lands had no effects on the species. Based on habitat. If a Federal action may affect a requiring a Federal permit (such as a this consultation history, we anticipate listed species or its critical habitat, the permit from the U.S. Army Corps of similarly low numbers of future Federal responsible Federal agency (action Engineers under section 404 of the actions within the area designated as agency) must enter into consultation Clean Water Act (33 U.S.C. 1251 et seq.) critical habitat for Devils River minnow. with us. As a result of this consultation, or a permit from us under section 10 of the Act) or involving some other Federal Application of the ‘‘Adverse we document compliance with the Modification’’ Standard requirements of section 7(a)(2) through action (such as funding from the Federal our issuance of: Highway Administration, Federal The key factor related to the adverse (1) A concurrence letter for Federal Aviation Administration, or the Federal modification determination is whether, actions that may affect, but are not Emergency Management Agency) are with implementation of the proposed likely to adversely affect, listed species examples of agency actions that may be Federal action, the affected critical or critical habitat; or subject to the section 7 consultation habitat would continue to serve its (2) A biological opinion for Federal process. Federal actions not affecting intended conservation role for the actions that are likely to adversely affect listed species or critical habitat, and species, or would retain its current listed species or critical habitat. actions on State, Tribal, local or private ability for the PCEs to be functionally When we issue a biological opinion lands that are not federally funded, established. Activities that may destroy concluding that a project is likely to authorized, or carried out, do not or adversely modify critical habitat are jeopardize the continued existence of a require section 7 consultations. those that alter the physical and listed species or destroy or adversely There are no Federal lands in the biological features to an extent that modify critical habitat, we also provide areas we are designating as critical appreciably reduces the conservation reasonable and prudent alternatives to habitat for the Devils River minnow. value of critical habitat for Devils River the project, if any are identifiable. We Laughlin Air Force Base is located east minnow. define ‘‘Reasonable and prudent of the City of Del Rio and obtains its Section 4(b)(8) of the Act requires us alternatives’’ at 50 CFR 402.02 as municipal water from the City of Del to briefly evaluate and describe, in any alternative actions identified during Rio (which ultimately is withdrawn proposed or final regulation that consultation that: from the two San Felipe Springs). The designates critical habitat, activities • Can be implemented in a manner Amistad National Recreation Area, involving a Federal action that may consistent with the intended purpose of located around Amistad Reservoir, is destroy or adversely modify such the action, owned by the National Park Service and habitat, or that may be affected by such • Can be implemented consistent includes the downstream portions of the designation. with the scope of the Federal agency’s Devils River, but is not included in the Activities that, when carried out, legal authority and jurisdiction, critical habitat designation. funded, or authorized by a Federal • Are economically and Since the Devils River minnow was agency, may affect critical habitat and technologically feasible, and listed in 1999, one formal section 7 therefore would result in consultation • Would, in the Director’s opinion, consultation has occurred specifically for the Devils River minnow include, avoid jeopardizing the continued concerning the species. That but are not limited to:

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(1) Actions that would alter the circumstances, these activities could Benefits of Designating Critical Habitat natural flow regime, particularly the eliminate or reduce the habitat The process of designating critical reduction of spring flows. These necessary for the reproduction of Devils habitat as described in the Act requires activities could include, but are not River minnow and could reduce the that the Service identify those lands on limited to, excessive groundwater availability of food sources by affecting which are found the physical or pumping (significantly greater than light penetration into the water column, biological features essential to the current levels), water diversions from filling in of stream beds with silt, or conservation of the species that may streams, and stream impoundments. increasing the embeddedness of stream require special management These activities could reduce the bottoms that reduces algae availability. considerations or protection, and those amount of available habitat and space The effects of any particular activity on areas outside the geographical area for normal behaviors of Devils River Devils River minnow habitat must be occupied by the species at the time of minnow, alter water quality as an evaluated on project-specific basis. The listing that are essential to the indirect effect of reduced flows, alter the conservation of the species. In mesohabitat (pools, riffles, and runs) impacts of any specific activity will identifying those lands, the Service conditions necessary for Devils River depend on the location, extent, and must consider the recovery needs of the minnow life history functions, and alter manner in which the activity is carried species, such that, on the basis of the fish community dynamics to out. best scientific and commercial data unnaturally favor species other than the (5) Actions that would significantly available at the time of designation, the Devils River minnow. alter channel shape or geometry. Such (2) Actions that would reduce native habitat that is identified, if managed, activities could include, but are not could provide for the survival and aquatic vegetation or native vegetation limited to, channelization, along stream banks. These activities recovery of the species. impoundment, armoring stream banks, The identification of those areas that could include, but are not limited to, road and bridge construction, mining, channelization of the stream, armoring are essential for the conservation of the dredging, and destruction of riparian stream banks (replacing native species and can, if managed, provide for vegetation. These activities may alter vegetation and soils with rock or the recovery of a species is beneficial. concrete), dredging the stream bottom, the natural pattern of available The process of proposing and finalizing introducing nonnative plants that would mesohabitats (pools, riffles, and runs). a critical habitat rule provides the replace native vegetation, or introducing These actions can reduce the amount of Service with the opportunity to herbivorous nonnative species. Loss of habitat available for Devils River determine the physical and biological aquatic vegetation would eliminate an minnow to complete its normal life features essential for conservation of the important structural component of cycle and can give other species, species within the geographical area Devils River minnow habitat (important especially nonnative species, occupied by the species at the time of for predator avoidance and spawning competitive advantages. These actions listing, as well as to determine other cues) and could reduce the amount of can also lead to increased sedimentation areas essential to the conservation of the available habitat for reproduction, and degradation in water quality to species. The designation process growth, and feeding. levels that are beyond the tolerances of includes peer review and public (3) Actions that would significantly the fish or their food sources. comment on the identified physical and alter water quality or introduce biological features and areas. This pollutants into streams. Such activities Exclusions process is valuable to land owners and managers in developing conservation could include, but are not limited to, Application of Section 4(b)(2) of the Act release of chemicals, biological management plans for identified areas, pollutants, or heated effluents (liquid Section 4(b)(2) of the Act states that as well as any other occupied habitat or waste products) into the surface water the Secretary must designate and revise suitable habitat that may not have been or connected groundwater at a point critical habitat on the basis of the best included in the Service’s determination source or by dispersed release (non- available scientific data after taking into of essential habitat. point source). Sources of pollutants also consideration the economic impact, The consultation provisions under include, but are not limited to, storm national security impact, and any other section 7(a)(2) of the Act constitute the water runoff from urban development relevant impact of specifying any regulatory benefits of critical habitat. As discussed above, Federal agencies must without adequate storm water controls, particular area as critical habitat. The consult with us on actions that may spill of hazardous chemicals into the Secretary may exclude an area from affect critical habitat and must avoid creek or groundwater, or groundwater critical habitat if he determines that the contamination by improperly drilled or destroying or adversely modifying benefits of such exclusion outweigh the critical habitat. Federal agencies must maintained oil or gas wells. These benefits of specifying such area as part activities could alter water conditions also consult with us on actions that may of the critical habitat, unless he that are beyond the tolerances of the affect a listed species and refrain from determines, based on the best scientific Devils River minnow or their food undertaking actions that are likely to sources and could result in direct or data available, that the failure to jeopardize the continued existence of cumulative adverse effects to these designate such area as critical habitat such species. The analysis of effects to individuals and their life cycles. will result in the extinction of the critical habitat is a separate and (4) Actions that would significantly species. In making that determination, different analysis from that of the effects increase sediment deposition within the the statute on its face, as well as the to the species. Therefore, the difference stream channel. Such activities could legislative history, are clear that the in outcomes of these two analyses include, but are not limited to, excessive Secretary has broad discretion regarding represents the regulatory benefit of sedimentation from livestock grazing, which factor(s) to use and how much critical habitat. For some species, and in road construction, channel alteration, weight to give any factor. In the some locations, the outcome of these brush clearing, off-road vehicle use, and following sections, we address a number analyses will be similar, because effects other watershed and floodplain of general issues that are relevant to the to habitat will often also result in effects disturbances. Under some exclusions we considered. to the species. However, the regulatory

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standard is different, as the jeopardy determination of no destruction or critical habitat serves to educate analysis looks at the action’s impact to adverse modification may contain landowners, State and local survival and recovery of the species and discretionary conservation governments, and the public regarding the adverse modification analysis looks recommendations to minimize adverse the potential conservation value of an at the effects to the designated habitat’s effects to the physical and biological area. This helps focus and promote contribution to conservation of the features essential to the conservation of conservation efforts by other parties by species. This will, in many instances, the species, but it would not suggest the clearly delineating areas of high lead to different results, and different implementation of any reasonable and conservation value for Devils River regulatory requirements. prudent alternative. We suggest minnow. In general, critical habitat For 30 years prior to the Ninth reasonable and prudent alternatives to designation always has educational Circuit’s decision in Gifford Pinchot, the proposed Federal action only when benefits; however, in some cases, it may consistent with the 1986 regulations, we our biological opinion results in an be redundant with other educational essentially combined the jeopardy adverse modification conclusion. effects. For example, HCPs have standard with the standard for As stated above, the designation of significant public input and may largely destruction or adverse modification of critical habitat does not require that any duplicate the educational benefits of a critical habitat when evaluating Federal management or recovery actions take critical habitat designation. Including actions that affected currently occupied place on the lands included in the lands in critical habitat also would critical habitat. However, the court of designation. Even in cases where inform State agencies and local appeals ruled that the two standards are consultation has been initiated under governments about areas that could be distinct and that adverse modification section 7(a)(2) of the Act, the end result conserved under State laws or local evaluations require consideration of of consultation is to avoid jeopardy to ordinances. impacts on species recovery. Thus, the species and/or adverse modification critical habitat designations may of its critical habitat, but not necessarily Recovery Benefits provide greater regulatory benefits to the to manage critical habitat or institute The process of designating critical recovery of a species than would listing recovery actions on critical habitat. habitat as described in the Act requires alone. Conversely, voluntary conservation that the Service identify those lands on There are two limitations to the efforts implemented through which are found the physical or regulatory effect of critical habitat. First, management plans institute proactive biological features essential to the a section 7(a)(2) consultation is required actions over the lands they encompass conservation of the species which may only where there is a Federal nexus (an and are put in place to remove or reduce require special management action authorized, funded, or carried out known threats to a species or its habitat; consideration or protections and by any Federal agency)—if there is no therefore, implementing recovery specific unoccupied areas that are Federal nexus, the critical habitat actions. We believe that in many determined to be essential for the designation of private lands itself does instances the regulatory benefit of conservation of the species. In not restrict any actions that destroy or critical habitat is low when compared to identifying those lands, the Service adversely modify critical habitat. the conservation benefit that can be must consider the recovery needs of the Second, the designation only limits achieved through conservation efforts or species, such that the habitat that is destruction or adverse modification. By management plans. The conservation identified, if managed, could provide for its nature, the prohibition on adverse achieved through implementing Habitat the survival and recovery of the species. modification is designed to ensure that Conservation Plans (HCPs), Safe Harbor Furthermore, once critical habitat has the conservation role and function of Agreements, or experimental been designated, Federal agencies must those areas that contain the physical populations established under section consult with the Service under section and biological features essential to the 10 of the Act or other habitat 7(a)(2) of the Act to ensure that their conservation of the species or of management plans is typically greater actions will not adversely modify unoccupied areas that are essential for than would be achieved through designated critical habitat or jeopardize the conservation of the species are not multiple site-by-site, project-by-project the continued existence of the species. appreciably reduced. Critical habitat section 7 consultations involving As noted in the Ninth Circuit’s Gifford designation alone, however, does not consideration of critical habitat. Pinchot decision, the Court ruled that require private property owners to Management plans commit resources to the jeopardy and adverse modification undertake specific steps toward implement long-term management and standards are distinct, and that adverse recovery of the species. protection to particular habitat for at modification evaluations require Once an agency determines that least one and possibly other listed or consideration of impacts to the recovery consultation under section 7(a)(2) of the sensitive species. Section 7 of species. Thus, through the section Act is necessary, the process may consultations only commit Federal 7(a)(2) consultation process, critical conclude informally when the Service agencies to prevent adverse habitat designations provide recovery concurs in writing that the proposed modification to critical habitat caused benefits to species by ensuring that Federal action is not likely to adversely by the particular project; they do not Federal actions will not destroy or affect critical habitat. However, if the commit Federal agencies to provide adversely modify designated critical Service determines through informal conservation or long-term benefits to habitat. consultation that adverse impacts are areas not affected by the proposed It is beneficial to identify those lands likely to occur, then formal consultation project. Thus, implementation of any that are necessary for the conservation is initiated. Formal consultation HCP or management plan that of the species and that, if managed concludes with a biological opinion incorporates enhancement or recovery appropriately, would further recovery issued by the Service on whether the as the management standard may often measures for the species. The process of proposed Federal action is likely to provide as much or more benefit than a proposing and finalizing a critical result in destruction or adverse consultation for critical habitat habitat rule provides the Service with modification of critical habitat. designation. the opportunity to determine lands For critical habitat, a biological Another benefit of including lands in essential for conservation as well as opinion that concludes in a critical habitat is that designation of identify the physical and biological

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features essential for conservation on Given the distribution of listed 1264–1265; Brook et al. 2003, pp. 1644– those lands. The designation process species with respect to land ownership, 1648). includes peer review and public conservation of listed species in many According to some researchers, the comment on the identified features and parts of the United States is dependent designation of critical habitat on private lands. This process is valuable to upon working partnerships with a wide lands significantly reduces the landowners and managers in developing variety of entities and the voluntary likelihood that landowners will support habitat management plans for identified cooperation of many non-Federal and carry out conservation actions lands, as well as any other occupied landowners (Wilcove and Chen 1998, p. (Main et al. 1999, p. 1263; Bean 2002, habitat or suitable habitat that may not 1407; Crouse et al. 2002, p. 720; James p. 2; Brook et al. 2003, pp. 1644–1648). have been included in the Service’s 2002, p. 271). Building partnerships and The magnitude of this outcome is determination of essential habitat. promoting voluntary cooperation of greatly amplified in situations where However, the designation of critical landowners is essential to our active management measures (such as habitat does not require that any understanding the status of species on reintroduction, fire management, and management or recovery actions take non-Federal lands, and necessary to control of invasive species) are place on the lands included in the implement recovery actions such as necessary for species conservation (Bean designation. Even in cases where reintroducing listed species, habitat 2002, pp. 3–4). The Service believes that consultation has been initiated under restoration, population monitoring, and the judicious exclusion of specific areas section 7(a)(2) of the Act, the end result habitat protection. of non-federally owned lands from of consultation is to avoid jeopardy to Many non-Federal landowners derive critical habitat designations can the species and adverse modification of satisfaction from contributing to contribute to species recovery and its critical habitat, but not specifically to endangered species recovery. We provide a superior level of conservation manage remaining lands or institute promote these private-sector efforts than critical habitat alone. The purpose of designating critical recovery actions on remaining lands. through the Department of the Interior’s habitat is to contribute to the Conversely, management plans institute Cooperative Conservation philosophy. conservation of threatened and proactive actions over the lands they Conservation agreements with non- endangered species and the ecosystems encompass intentionally to remove or Federal landowners (HCPs, safe harbor upon which they depend. The outcome reduce known threats to a species or its agreements, 10(j) experimental of the designation, triggering regulatory habitat and, therefore, implement populations, other conservation requirements for actions funded, recovery actions. We believe that the agreements, easements, and State and conservation of a species and its habitat authorized, or carried out by Federal local regulations) enhance species that could be achieved through the agencies under section 7(a)(2) of the conservation by extending species designation of critical habitat, in some Act, can sometimes be protections beyond those available cases, is less than the conservation that counterproductive to its intended through section 7 consultations. In the could be achieved through the purpose on non-Federal lands. Thus, the past decade, we have encouraged non- implementation of a management plan benefits of excluding areas that may be Federal landowners to enter into that includes species-specific provisions covered by effective partnerships or conservation agreements, based on the and considers enhancement or recovery other conservation commitments can view that we can achieve greater species of listed species as the management often be high. conservation on non-Federal land standard over the same lands. Benefits of Excluding Lands With HCPs Consequently, implementation of an through such partnerships than we can through regulatory methods (61 FR or Other Management Plans From HCP or management plan that considers Critical Habitat enhancement or recovery as the 63854; December 2, 1996). management standard will often provide Many private landowners, however, The benefits of excluding lands with as much or more benefit than a are wary of the possible consequences of approved long-term management plans consultation for critical habitat encouraging endangered species to their from critical habitat designation include designation conducted under the property. Mounting evidence suggests relieving landowners, communities, and standards required by the Ninth Circuit that some regulatory actions by the counties of any additional regulatory in the Gifford Pinchot decision. Federal Government, while well- burden that might be imposed by a intentioned and required by law, can critical habitat designation. Many Conservation Partnerships on Non- (under certain circumstances) have conservation plans provide conservation Federal Lands unintended negative consequences for benefits to unlisted sensitive species. Most federally listed species in the the conservation of species on private Imposing an additional regulatory United States will not recover without lands (Wilcove et al. 1996, pp. 5–6; review as a result of the designation of the cooperation of non-Federal Bean 2002, pp. 2–3; Conner and critical habitat may undermine these landowners. More than 60 percent of the Mathews 2002, pp. 1–2; James 2002, pp. conservation efforts and partnerships in United States is privately owned 270–271; Koch 2002, pp. 2–3; Brook et many areas. Designation of critical (National Wilderness Institute 1995, p. al. 2003, pp. 1639–1643). Many habitat within the boundaries of 2), and at least 80 percent of endangered landowners fear a decline in their management plans that provide or threatened species occur either property value due to real or perceived conservation measures for a species is a partially or solely on private lands restrictions on land-use options where disincentive to entities currently (Crouse et al. 2002, p. 720). Stein et al. threatened or endangered species are developing these plans or contemplating (1995, p. 400) found that only about 12 found. Consequently, harboring them in the future, because one of the percent of listed species were found endangered species is viewed by many incentives for undertaking conservation almost exclusively on Federal lands (90 landowners as a liability. This is greater ease of permitting where listed to 100 percent of their known perception results in anti-conservation species will be affected. Addition of a occurrences restricted to Federal lands) incentives because maintaining habitats new regulatory requirement would and that 50 percent of federally listed that harbor endangered species remove a significant incentive for species are not known to occur on represents a risk to future economic undertaking the time and expense of Federal lands at all. opportunities (Main et al. 1999, pp. management planning.

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A related benefit of excluding lands We also found in this final rule that consultation and possible regulatory within management plans from critical Sycamore Creek and Las Moras Creek benefit of critical habitat. The lack of habitat designation is the unhindered, are essential streams for the section 7 consultations results in very continued ability it gives us to seek new conservation of the Devils River limited regulatory benefits for the partnerships with future plan minnow. However, both streams are designation of critical habitat in the participants, including States, Counties, located exclusively on non-Federal Devils River Unit. local jurisdictions, conservation lands and will require significant We expect there may be some limited organizations, and private landowners, cooperation with private landowners educational benefits associated with the which together can implement and implementation of cooperative designation of critical habitat. However, conservation actions that we would be tools, such as safe harbor agreements most people actively involved in water unable to accomplish otherwise. and experimental populations resource management in these areas Designating lands within approved established under section 10(j) of the likely already know the need for management plan areas as critical Act, to achieve the recovery goals for the conservation of the Devils River habitat would likely have a negative Devils River minnow in these creeks as minnow. Designating critical habitat effect on our ability to establish new outlined in the Recovery Plan. These could provide another opportunity to partnerships to develop these plans, recovery actions would be potentially highlight these areas as important for particularly plans that address precluded if critical habitat were the conservation of the species and landscape-level conservation of species designated on these streams since we provide more specific information on and habitats. By preemptively excluding consider these areas not occupied and the physical and biological features that these lands, we preserve our current landowner cooperation is a necessary define habitat for the species. We expect partnerships and encourage additional step in the restoration and the educational benefits to be especially conservation actions in the future. reestablishment of the Devils River limited in the Devils River Unit, where Furthermore, both HCP and Natural minnow to these two creeks. the few local landowners along the river Community Conservation Plan (NCCP)– Devils River Unit have been engaged in Devils River HCP applications require consultation, minnow issues for the 30 years since the which would review the effects of all Benefits of Inclusion species was initially proposed for listing HCP-covered activities that might The benefits of including lands in and the river proposed for critical adversely impact the species under a critical habitat can be regulatory, habitat designation in 1978. Many of the jeopardy standard, including possibly educational, or to aid in recovery of families involved in Devils River significant habitat modification (see species as generally discussed in the minnow issues in 1978 are still definition of ‘‘harm’’ at 50 CFR 17.3), ‘‘Benefits of Designating Critical involved. We therefore foresee very even without the critical habitat Habitat’’ section above. The following is limited additional education value that designation. In addition, all other our assessment of the estimated benefits the designation would be expected to Federal actions that may affect the listed for inclusion of the Devils River Unit. offer to these landowners. species would still require consultation We expect only minimal regulatory We expect few to no additional under section 7(a)(2) of the Act, and we benefits from the designation of critical benefits to the recovery of the Devils would review these actions for possibly habitat for the Devils River minnow. As River minnow as a result of the significant habitat modification in explained in the final economic analysis designation of critical habitat in the accordance with the definition of harm (FEA) (p. A–1) and the ‘‘Effects of Devils River Unit. The habitat areas are referenced above. Critical Habitat Designation’’ section in outlined and the biological features are The information provided in the this final rule, we have had very few readily defined in the species’ recovery previous section applies to all the section 7 consultations for this species plan. With limited regulatory and following discussions of benefits of since its listing, (one formal educational benefits likely, we foresee inclusion or exclusion of critical habitat. consultation, nine informal no other tangible benefits to further consultations, and five technical Exclusions Under Section 4(b)(2) of the recovery of the species as a result of the assistance events since 1999) and we Act designation of critical habitat. foresee few section 7 consultations in We found that the public comments the next 20 years. Appendix A in the Benefits of Exclusion we received made a compelling case FEA (p. A–5) estimates a total of 2 Non-Federal Partnerships that excluding the Devils River Unit will formal consultations, 21 informal provide for maintenance of positive consultations, and 12 technical The distribution of the Devils River relationships with private landowners assistance events over the next 20 years minnow is largely within private along that stretch of river. These throughout the range of the species. ownership, and, therefore, the relationships are fundamental for This is because there are few, if any, management of its habitat has limited implementing recovery actions for the actions occurring with a Federal nexus influence by Federal agency actions. As Devils River minnow and outweigh the within the range of the species that may a result, partnerships with and among limited benefits that may occur from the affect the species or its habitat. The FEA non-Federal organizations and private designation of critical habitat there. found that no formal section 7 individuals are the key to conserving Maintaining non-Federal partnerships consultations are likely to occur in the the Devils River minnow. The top in the other units in San Felipe Creek Devils River Unit in the next 20 years. priority task in the Devils River Minnow and Pinto Creek are of equal Comments received during the public Recovery Plan, for example, includes importance. However, as explained comment period indicated that oil and ‘‘Seek and maintain the cooperation of below, we believe that designation of gas development in the Devils River landowners’’ (Service 2005, p. 3.3–1). critical habitat in those units does not watershed could adversely affect Devils Therefore, we believe it is important to put our non-Federal partnerships at risk River minnow habitat in the Devils consider the potential benefits that will and, therefore, no additional benefits for River. However, we are not aware of a be realized by preserving our positive the Devils River minnow would be Federal nexus to oil and gas activities relationships with landowners and expected by excluding those units. that would result in a section 7 other non-Federal organizations if we

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exclude an area from the final critical Losing landowner trust and conservation than critical habitat habitat designation. cooperation would be a significant designation. The need for strong partnerships on setback to recovery efforts for the Devils Conservation Efforts and Management non-Federal lands for the conservation River minnow on the Devils River. The Plans of the Devils River minnow is of designation of critical habitat could heightened importance in the Devils reduce the likelihood that landowners When performing the required River watershed. The remote, rural area will support and carry out conservation analysis under section 4(b)(2) of the Act is comprised of large private ranches actions needed to implement the to consider any potential exclusions of with very limited influence by public recovery plan. The recovery plan calls areas proposed for critical habitat, we activities. Land management to promote for the following actions: monitor the considered planned or ongoing and conserve healthy watersheds, native status of Devils River minnow; conservation efforts within the Devils riparian areas, and groundwater determine biological and life history River minnow’s range (described in the recharge and sustainable use depends requirements; identify specific habitat proposed rule, 72 FR 41692). We on the voluntary actions of the private requirements; and manage Devils River received no new information during the landowners. minnow habitat (Service 2005, pp. 2.3– public comment periods on the During the second public comment 1—2.4–6). All of these actions require existence of other plans or conservation period, at least 12 individuals (either the cooperation of private landowners. efforts, beyond those discussed below in landowners along the Devils River or One practical aspect of landowner this section. We evaluated these ongoing representatives for those interests) cooperation in this area is the need for conservation efforts based on whether commented negatively about the access to locations on the Devils River excluding one or more critical habitat perceived effects of the designation of to carry out many recovery actions. In units might provide recovery benefits the Devils River Unit as critical habitat. the past, landowners on the Devils River for the Devils River minnow. Each effort They envisioned that the designation have been open to allowing access to provides some opportunity to benefit would restrict landowner activities, lead conduct studies and for monitoring the Devils River minnow. However, we to a change in the status of the Devils efforts by TPWD, the Service, and are not excluding any areas based solely River minnow from threatened to others. This is important on the Devils on these conservation efforts and endangered, and result in a devaluation River because public access is limited to management plans. of land values in the area. only two small areas, one on the Devils The Nature Conservancy has a We do not believe that these concerns River State Natural Area and one at the Conservation Area Plan (CAP) and are likely to be realized. We provide Highway 163 bridge crossing. Past several conservation easements in the specific responses to these comments in efforts for monitoring the Devils River Devils River Watershed. The CAP has the ‘‘Comments and Responses’’ section- minnow populations and habitats significant goals for conserving the that the designation of critical habitat benefited from landowners voluntarily Devils River watershed and its should have little to no effect on permitting access on private property to implementation will provide benefits landowner actions, is not a factor in the collect valuable information. Field for the Devils River minnow. The species’ status as threatened rather than monitoring of the river conditions and Nature Conservancy has limited endangered, and should not result in a fish populations is a vital component to opportunity to implement the stigma effect to decrease land values. the recovery of the Devils River conservation strategies outside of the However, these widely held perceptions minnow. lands under their ownership or by landowners in the Devils River Unit In the past, this non-Federal easement. Implementing the goals of the could result in anti-conservation partnership was under the guidance of CAP will depend on the voluntary incentives because furthering Devils the 1998 Devils River Minnow cooperation of the private landowners River minnow conservation is seen as a Conservation Agreement. The purpose throughout the watershed. risk to future economic opportunities or of this agreement was to expedite We support the past and ongoing loss of private property rights. conservation measures needed to ensure conservation efforts by The Nature In addition, we received specific the continued existence and facilitate Conservancy and encourage their comments from the President of The recovery of the species prior to a final continued work. Without the voluntary Devils River Association (a 164-member listing decision. Although the formal cooperation of neighboring landowners, local landowner organization to agreement expired in 2003 without the local and State agencies, the efforts promote balance between preservation renewal, the landowners along the by The Nature Conservancy provide of the Devils River ecosystem and the Devils River have continued to only minimal benefits for the Devils desire to use the river and respect cooperate with us and TPWD to further River minnow. We believe The Nature private property rights). These the agreement’s conservation goals (this Conservancy will continue to work on comments specifically stated that the was also highlighted in the public conservation efforts with or without the Devils River Unit should be excluded comments we received). Without this designation of critical habitat, and there because the benefits of doing so ongoing non-Federal partnership with are no benefits to The Nature outweighed the benefits of inclusion. private landowners, we expect that Conservancy’s ongoing conservation The comments included a discussion of conservation opportunities for the efforts by designating the Devils River the importance of cooperation with species in the Devils River will be Unit as critical habitat. However, there landowners that has occurred in the greatly reduced. We believe that may be benefits accrued by excluding past. The comment states that this maintaining non-Federal partnerships this unit from critical habitat if it action (designating the Devils River as with local landowners on the Devils increases The Nature Conservancy’s critical habitat) ‘‘significantly decreases River is a substantial benefit of ability to work more successfully with our interest to work cooperatively with excluding the Devils River Unit from private landowners. As discussed above USFWS.’’ The comment goes on to state critical habitat designation and in the ‘‘Benefits of Excluding Lands that, ‘‘This action would terribly and, I outweighs any benefits expected from With HCPs or Other Management Plans am afraid, irreparably damage the trust including this unit in the designation. From Critical Habitat’’ section, that we have all built up over the last We anticipate that exclusion of this unit designating critical habitat in an area few years.’’ is likely to provide a superior level of with existing management plans may

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provide a disincentive for voluntary critical habitat are greater, and include or Las Moras creeks would be minimal cooperation by private landowners. maintaining important non-Federal since the importance of these creeks and Therefore, to maintain landowner partnerships. We find that the benefits the need for further information is relationships, there could be some of excluding this area from critical already highlighted in the recovery plan benefits to excluding the Devils River habitat designation outweigh the and in the rules and economic analysis Unit. benefits of including this area and will associated with this designation. We expect few to no additional Benefits of Exclusion Outweigh the not result in the extinction of the species. benefits to recovery of the Devils River Benefits of Inclusion minnow if critical habitat were In weighing the benefits of including Sycamore Creek and Las Moras Creek designated in Sycamore or Las Moras versus the benefits of excluding the Benefits of Inclusion creeks. With limited regulatory and Devils River Unit, we find that the educational benefits likely, we foresee We expect only minimal regulatory benefits of exclusion of these lands no other tangible benefits to further benefits from the designation of critical outweigh the benefits of inclusion of recovery of the species as a result of the habitat for the Devils River minnow. As these lands in the critical habitat designation of critical habitat in these explained in the FEA (p. A–1) and the designation. This is based on the fact streams. that there are very limited benefits to ‘‘Effects of Critical Habitat Designation’’ inclusion and substantial benefits from section in this final rule, we have had Benefits of Exclusion maintaining non-Federal partnerships very few section 7 consultations for this As stated above and in the recovery by excluding this unit. Therefore, we species since its listing (one formal plan, achieving recovery objectives for find that excluding Devils River Unit is consultation, nine informal the Devils River minnow will include, reasonable under the Secretary’s consultations, and five technical if feasible, restoring populations in discretion for ‘‘other relevant impacts’’ assistance events since 1999) and we Sycamore and Las Moras creeks. We under section 4(b)(2) of the Act. We foresee few section 7 consultations in believe that the best way to achieve believe the loss of non-Federal the next twenty years. Appendix A in these objectives will be to use the partnerships on the Devils River, as the FEA (p. A–5) estimates a total of 2 authorities under section 10(j) of the Act expressed in the public comments we formal consultations, 21 informal to reestablish experimental populations received on the proposed rule, is a consultations, and 12 technical or through safe harbor agreements. We relevant impact. The cooperation of assistance events over the next 20 years believe that section 10(j) of the Act private landowners to provide access to throughout the range of the species. would be an appropriate tool to utilize the river and participate in other This is because there are few, if any, in future restoration efforts. An recovery actions is a vital component to actions occurring with a Federal nexus overview of the process to establish an conservation of the Devils River within the range of the species that may experimental population under section minnow, and this could be lost if we affect the species or its habitat. There 10(j) of the Act is described below. designate critical habitat. In contrast, are no Federal lands within the Alternately, developing voluntary safe the benefits of inclusion are, as noted watersheds of Sycamore or Las Moras harbor agreements under section 10 of above, likely to be minor because of creeks and the FEA found no formal the Act is another tool that would allow very limited opportunities for additional section 7 consultations are likely to restoring these populations in a education and the lack of any Federal occur in the area of Sycamore or Las cooperative effort with local nexus for section 7 consultations Moras creeks in the next 20 years. The landowners. Developing safe harbor specific to Devils River minnow in the absence of expected section 7 agreements, as described below will unit. Recovery of the Devils River consultations suggests there are very require extensive partnerships with minnow is best served by the exclusion limited regulatory benefits for the non-Federal landowners. Either of the Devils River Unit. designation of critical habitat in alternative to accomplish these recovery Sycamore or Las Moras creeks. objectives would benefit from excluding Exclusion Will Not Result in Extinction We expect there may be some limited the areas from critical habitat of the Species educational benefits associated with the designation. We have determined that the designation of critical habitat. However, Section 10(j) of the Act enables us to exclusion of the Devils River Unit that most people actively involved in water designate certain populations of includes 29.2 stream mi (47.0 stream resource management in these areas federally listed species that are released km) from the final designation of critical likely already know the need for into the wild as ‘‘experimental.’’ The habitat will not result in the extinction conservation of the Devils River circumstances under which this of Devils River minnow. As described minnow. Both Sycamore and Las Moras designation can be applied are the above, all of the area we are excluding creeks are highlighted in the Devils following: (1) The population is from critical habitat is occupied by the River Minnow Recovery Plan. The geographically separate from species, and consultations will still streams are located in Kinney County nonexperimental populations of the occur under section 7 of the Act if there where we are already actively working same species (e.g., the population is is a Federal nexus, even in the absence with local officials on conservation reintroduced outside the species’ of their designation as critical habitat. issues for the Devils River minnow. current range but within its probable Application of the jeopardy standard of Designating critical habitat could historic range); and (2) we determine section 7 of the Act also provides provide another opportunity to that the release will further the assurances that the species will not go highlight these areas as important for conservation of the species. Section extinct in the absence of this the conservation of the species and to 10(j) is designed to increase our designation. seek specific information on the flexibility in managing an experimental In summary, the benefits of including physical and biological features that population by allowing us to issue a the Devils River Unit in the critical define habitat for the species in these special rule that provides flexibility in habitat designation for the Devils River creeks. However, as discussed above, we how the experimental population is minnow are few. The benefits of expect the educational benefits of managed. In situations where we have excluding this area from designated designating critical habitat in Sycamore experimental populations, portions of

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the statutory section 9 prohibitions (e.g., reestablishing populations in Sycamore recognizes the need for landowner harm, harass, capture) that apply to all or Las Moras creeks. Use of section 10(j) agreements (Recovery Action 2.1) to endangered species and most threatened is meant to encourage local cooperation document landowner cooperation and a species may no longer apply, and a through management flexibility. commitment to future conservation special rule can be developed that Because critical habitat is often viewed measures to ensure successful contains the specific prohibitions and negatively by the public, as is the case repatriation of the species (Service 2005, exceptions necessary and appropriate to here as discussed elsewhere in this rule p. 2.4–6). Working with landowners in conserve that species. This flexibility (see Non-Federal Partnerships the future through either a establishing allows us to manage the experimental discussion above), we believe it is a section 10(j) experimental population population in a manner that will ensure important and necessary for recovery of or developing one or more safe harbor that current and future land, water, or this species that we have the support of agreements would fulfill the anticipated air uses and activities will not be the public when we develop and recovery actions envisioned in the unnecessarily restricted and that the implement recovery actions. recovery plan. population can be managed for recovery Safe harbor agreements are another Engaging private citizens and local purposes. alternative that provide voluntary landowners in proactive, voluntary When we designate a population as arrangements between us and measures such as restoration through experimental, section 10(j) of the Act cooperating non-Federal landowners. experimental populations or safe harbor requires that we determine whether that This policy’s main purpose is to agreements requires a high level of trust population is either essential or promote voluntary management for and cooperation with Federal agencies. nonessential to the continued existence listed species on non-Federal property We believe it is highly unlikely we will of the species, on the basis of the best while giving assurances to participating develop this level of cooperation if these available information. Nonessential landowners that no additional future streams were designated as critical experimental populations located regulatory restrictions will be imposed. habitat. The strong negative perceptions outside National Wildlife Refuge System The agreements are intended to benefit that are likely to persist if these lands or National Park System lands are endangered and threatened species, by were designated as critical habitat treated, for the purposes of section 7 of creating or restoring habitat for the would prevent us from realizing these the Act, as if they are proposed for species, while giving landowners voluntary opportunities for restoration listing. Thus, for nonessential assurances from additional restrictions. in the near future. Maintaining existing experimental populations, only two As part of a safe harbor agreement, we non-Federal partnerships and creating provisions of section 7 would apply issue an ‘‘enhancement of survival’’ new ones are necessary recovery actions outside National Wildlife Refuge System permit under section 10 of the Act, to to conserve the Devils River minnow. and National Park System lands: section authorize any necessary future We note that Texas Governor Rick Perry 7(a)(1), which requires all Federal incidental take to provide participating submitted a letter to us dated June 27, agencies to use their authorities to landowners with assurances that no 2008, indicating that he believes a conserve listed species, and section additional restrictions would be cooperative method of land, water, and 7(a)(4), which requires Federal agencies imposed as a result of their conservation wildlife management is the best way to to informally confer with us on actions actions. protect property rights and support that are likely to jeopardize the Developing future safe harbor healthy habitats and that critical habitat continued existence of a proposed agreements to facilitate restoration will do little to improve the habitat of species. Section 7(a)(2) of the Act, efforts for Devils River minnow in the Devils River minnow. We believe which requires Federal agencies to Sycamore and Las Moras creeks would this philosophy of cooperation between ensure that their activities are not likely require close cooperation with a number private landowners and the Service is to jeopardize the continued existence of of private or non-Federal landowners. consistent with the information in our a listed species, would not apply except The negative perceptions of landowners analysis and is supported by the on National Wildlife Refuge System and regarding critical habitat, as described comments we received. National Park System lands. above, would most likely forestall any The Devils River Minnow Recovery The flexibility gained by opportunity to engage landowners in Plan also recognizes the need to develop establishment of an experimental Devils River minnow restoration using and implement a reintroduction plan, population through section 10(j) would safe harbor agreements. Excluding these including a captive propagation plan be of little value if a designation of two streams from critical habitat and a genetics management plan critical habitat overlaps it. This is provides better opportunities to work (estimated cost of $100,000 per the because Federal agencies would still be with landowners through safe harbor Recovery Plan) (Service 2005, p. 3.3.–3), required to consult with us on any agreements to further restoration efforts as first steps in our restoration efforts actions that may adversely modify of Devils River minnow. The ability to (Service 2005, pp. 2.4–7—2.4–8). We’ve critical habitat. In effect, the flexibility implement these conservation actions been working to collect the necessary gained from section 10(j) would be provides a clear benefit of excluding information to develop these plans rendered useless by the designation of these streams from critical habitat through research since 2000 with the critical habitat. In fact, section designation. captive stocks of Devils River minnows 10(j)(2)(C)(ii) of the Act states that This voluntary approach is consistent being maintained at our San Marcos critical habitat shall not be designated with the actions identified in the National Fish Hatchery and Technology under the Act for any experimental Recovery Plan necessary to establish Center (Conway et al. 2007; Gibson et al. population determined to be not additional viable populations of Devils 2004; Gibson and Fries, 2005; Service essential to the continued existence of a River minnow within its historic range 2005, p. 1.8–2). These scientific studies species. (Service 2005, pp. 2.4–6—2.4–7). The have provided important baseline We strongly believe that, in order to recovery plan recognizes that, ‘‘Support biological data on the species through facilitate recovery for the Devils River of private landowners will be necessary experiments on captive breeding minnow, we would need the flexibility to plan and implement reestablishment techniques. This information will allow provided for in section 10(j) of the Act of the Devils River minnow’’ (Service us to develop reintroduction plans and to help ensure the success of 2005, p. 2.4–6). The recovery plan also begin seeking funding and landowner

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cooperation to put these recovery tools Devils River minnow and these The stream is located in Kinney County in place to implement restoration opportunities would be lost if critical where we are already working with efforts. habitat were designated. In contrast, the local officials on conservation issues for We have worked with local groups in benefits of inclusion are, as noted above, the Devils River minnow. Designating the past to discuss the opportunities for likely to be minor because of limited critical habitat could provide another restoration of the Devils River minnow opportunities for additional education opportunity to highlight these areas as in Las Moras Creek (Service 2005, p. and the lack of any Federal nexus for important for the conservation of the 1.8–2). The implementation schedule section 7 consultations specific to species and provide more specific from the recovery plan anticipates that Devils River minnow in these two information on the physical and landowner agreements to restore Devils streams. Recovery of the Devils River biological features that define habitat for River minnow to former sites of minnow is best served by the exclusion the species. We expect the educational occurrence would, depending on of the Sycamore Creek and Las Moras benefits of designating critical habitat in availability of funding and cooperation, Creek from critical habitat designation. Pinto Creek would be minimal. occur between years 3 through 6 We considered the Kinney County following the approval of the recovery Exclusion Will Not Result in Extinction Groundwater Conservation District plan in 2005 (Service 2005, p. 3.3–2). of the Species (KCGCD) draft management plan in our The recovery plan estimates the cost of We have determined that the analysis. An updated management plan developing these agreements at $20,000. exclusion of Sycamore Creek and Las by the KCGCD was under development The recovery plan foresees the Moras Creek from the final designation during completion of this final rule, and development and implementation of a of critical habitat will not result in the the final plan was approved after the reintroduction plan would occur in extinction of Devils River minnow. As close of the public comment period. We years 3 through 8 (Service 2005, p. 3.3– described above, we do not consider received comments from the KCGCD 1), at an estimated cost of $200,000. We either of these streams to be currently that the draft management plan would are committed to continue to actively occupied by the Devils River minnow. provide benefits to the Devils River examine the opportunities for The species occurs in three other minnow by managing groundwater on a developing the necessary landowner streams, two of which are being sustainable basis without exploiting or agreements to implement the actions designated as critical habitat. Excluding adversely affecting the natural flow of identified in the Devils River Minnow these two streams will not affect the intermittent streams. We also Recovery Plan. The Service’s lead field conservation efforts ongoing throughout received comments that groundwater office for the Devils River minnow is the currently occupied range of the pumping authorized by the KCGCD will also committed to using their funding species. We do not anticipate any loss result in adverse impact to Devils River through the Partners for Fish and of protection to the species or other minnow habitat in Pinto Creek. The Wildlife Program to work with impacts that would result from KCGCD management plan was not landowners to develop and implement excluding these two streams from the approved until after the public comment stream channel restoration projects if designation of critical habitat. period for this designation and, necessary. At the time of preparation of In summary, the benefits of including therefore, was not considered in its the Recovery Plan, the Service was not Sycamore and Las Moras creeks in the entirety as a basis for possible able to determine the cost of future critical habitat designation for the exclusion. We received comments from restoration projects. Devils River minnow are few. The the KCGCD during the public comment benefits of excluding these streams from period indicating that the future plan Benefits of Exclusion Outweigh the being designated as critical habitat are will likely provide spring flows in Pinto Benefits of Inclusion greater, and include creating important Creek. If so, it will be of great value to In weighing the benefits of including non-Federal partnerships and the conservation of the Devils River versus the benefits of excluding opportunities for restoration of the minnow and its habitat. We fully expect Sycamore and Las Moras creeks, we find populations using tools under section the KCGCD’s plan will be carried out that the benefits of exclusion of these 10 of the Act. We find that the benefits with or without the designation of streams outweigh the benefits of of excluding these two streams from critical habitat for the Devils River inclusion of these streams in the critical critical habitat designation outweigh the minnow and we look forward to habitat designation. This is based on the benefits of including them and will not working with the KCGCD to conserve facts that there are very limited benefits result in the extinction of the species. Devils River minnow habitats in Kinney to inclusion and substantial benefits to Therefore, these two streams are not County. Landowners in the District are exclusion from maintaining non-Federal included in the final critical habitat under the authority of the KCGCD for partnerships and providing designation. pumping permits, and their compliance opportunities for using flexible tools for does not depend on their voluntary Pinto Creek Unit restoration of the species to these cooperation. Therefore, we do not streams. Use of these tools (safe harbor We considered the exclusion of the expect landowner cooperation with the agreements and section 10(j) of the Act) Pinto Creek unit, but based on the KCGCD to be influenced by the would not be possible or effective record before us have elected not to designation of critical habitat or the without landowner cooperation. exercise our discretion under section exclusion from critical habitat, of Pinto Therefore, we find that excluding 4(b)(2) of the Act to exclude this unit. Creek. Sycamore Creek and Las Moras Creek is We expect there may be some limited However, for all the reasons discussed reasonable under the Secretary’s educational benefits associated with the above under the Devils River Unit, discretion for ‘‘other relevant impacts’’ designation of critical habitat. However, ‘‘Benefits of Exclusion,’’ section, under section 4(b)(2) of the Act. We most people actively involved in water maintaining strong non-Federal believe the cooperation of private resource management in these areas partnerships with landowners along landowners to provide access to the likely already know the need for Pinto Creek are important. This unit river and participate in restoration conservation of the Devils River flows only through private lands, and actions under section 10 of the Act is a minnow. Pinto Creek is highlighted in there is only one bridge crossing that vital component to conservation of the the Devils River Minnow Recovery Plan. provides very limited access, so

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landowner cooperation here is also vital County and the City of Del Rio) is a (dated December 21, 2007) was made to accomplishing recovery tasks. In the continuing goal for the recovery of the available for public review on February past we have had good relationships species (related to water use 7, 2008 (73 FR 7237). We accepted with the landowners along Pinto Creek, conservation by the City of Del Rio and comments on the draft analysis until and access has been provided upon preventing water pollution in San March 10, 2008. Following the close of request. Based on our current Felipe Creek) and requires ongoing the comment period, a final analysis of relationships with the landowners, efforts to accomplish. Designation of the potential economic effects of the particularly in the most upstream critical habitat could help to elevate the designation was developed taking into reaches, we do not expect that critical awareness to the public of the consideration the public comments and habitat designation in this unit will importance of the conservation of San any new information. likely negatively impact those Felipe Creek. The economic analysis considers the relationships. We received only one We considered the San Felipe Creek potential economic effects of all actions comment from a landowner on Pinto management plans by the City of Del relating to the conservation of Devils Creek. This landowner was concerned Rio and the San Felipe Creek Country River minnow, including costs about the impacts of groundwater Club. These plans, signed in 2003, associated with sections 4, 7, and 10 of pumping on stream flows and did not provide some conservation the Act, as well as those attributable to express any concerns about the opportunities for the Devils River designating critical habitat. It further proposed designation of critical habitat. minnow in San Felipe Creek. However, considers the economic effects of The KCGCD included as a public to date, many of the actions in the plans protective measures taken as a result of comment a resolution opposing the have not been implemented. We have other Federal, State, and local laws that designation of critical habitat because worked with the City of Del Rio to draft aid habitat conservation for Devils River they considered the Pinto Creek a new San Felipe Creek Master Plan, but minnow in areas containing the features population of Devils River minnow this plan was not completed before the essential to the conservation of the introduced and stream flows there close of the comment period, and we do species. The analysis considers both intermittent. They made no comment not know when it will be finalized. economic efficiency and distributional relative to any cooperation or potential Most of the lands along San Felipe effects. In the case of habitat that it would damage any future non- Creek are owned by the City of Del Rio. conservation, efficiency effects generally Federal partnership opportunities. We We do not expect the designation of reflect the ‘‘opportunity costs’’ hope to build a strong partnership with critical habitat to have any bearing on associated with the commitment of the KCGCD in the future to work the management of San Felipe Creek by resources to comply with habitat together to conserve spring flows in the City of Del Rio. We have a good protection measures (such as lost Pinto Creek. While the critical habitat working relationship with the City of economic opportunities associated with designation may be perceived negatively Del Rio, and we expect to continue this restrictions on land use). The economic by the KCGCD, we do not believe it will relationship. We received no indication analysis also addresses how potential impact the long-term conservation from the City of Del Rio that designation economic impacts are likely to be efforts of the KCGCD. The KCGCD stated of critical habitat would impact our distributed, including an assessment of in their resolution that they were relationship. We believe the City of Del any local or regional impacts of habitat committed to maintaining natural flows Rio will continue to work toward conservation and the potential effects of in Pinto Creek. This is part of their completion and implementation of the conservation activities on small entities authority to manage groundwater master plan and conservation efforts for and the energy industry. This pumping through a permitting program. San Felipe Creek whether or not critical information can be used by the We believe the KCGCD will continue to habitat is designated on San Felipe decision-makers to assess whether the strive toward maintaining spring flows Creek. Therefore, we do not believe effects of the designation might unduly whether or not the Pinto Creek Unit is there are any benefits of excluding San burden a particular group or economic included in the designation. Therefore, Felipe Creek Unit based on these sector (see ‘‘Required Determinations’’ excluding the Pinto Creek Unit is not management plans and ongoing section below). Finally, the economic anticipated to provide benefits for conservation efforts. analysis looks retrospectively at costs Devils River minnow through that have been incurred since the date Economic Analysis preventing the loss of non-Federal this species was listed as threatened partnerships in the Pinto Creek Unit. Section 4(b)(2) of the Act requires us (October 20, 1999; 64 FR 56596), and We received no other information to designate critical habitat on the basis considers those costs that may occur in during the comment period that would of the best scientific information the 20 years following designation of indicate there are additional benefits to available and to consider the economic critical habitat (i.e., coextensive costs, excluding the Pinto Creek Unit. and other relevant impacts of 2008–2027). designating a particular area as critical The economic analysis focuses on the San Felipe Creek Unit habitat. Section 4(b)(2) of the Act allows direct and indirect costs of the rule. We considered the exclusion of the the Secretary to exclude areas from However, economic impacts to land-use San Felipe Creek Unit, but based on the critical habitat for economic or other activities can exist in the absence of record before us have elected not to reasons if the Secretary determines that critical habitat. These impacts may exercise our discretion under section the benefits of such exclusion exceed result from, for example, section 7 4(b)(2) of the Act to exclude this unit. the benefits of designating the area as consultations under the jeopardy There are some limited educational critical habitat. However, this exclusion standard, local zoning laws, State and benefits for the designation of the San cannot occur if it will result in the natural resource laws, and enforceable Felipe Creek Unit. Many local officials extinction of the species concerned. management plans and best and agency personnel are already aware Following the publication of the management practices applied by other of the need for conservation of San proposed critical habitat designation, State and Federal agencies. Economic Felipe Creek for the benefit of the Devils we conducted an economic analysis to impacts that result from these types of River minnow. However, educating the estimate the potential economic effects protections are not included in the general public (citizens of Val Verde of the designation. The draft analysis analysis as they are considered to be

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part of the regulatory and policy the economy or adversely affect an small entities are significant, we baseline. economic sector, productivity, jobs, the considered the types of activities that The economic analysis estimates environment, or other units of the might trigger regulatory impacts under potential economic impacts resulting government. this designation as well as types of from the implementation of Devils River (b) Whether the rule will create project modifications that may result. In minnow conservation efforts in three inconsistencies with other Federal general, the term ‘‘significant economic categories: (a) Water quality; (b) agencies’ actions. impact’’ is meant to apply to a typical nonnative species; and (c) Devils River (c) Whether the rule will materially small business firm’s business minnow sampling and monitoring. The affect entitlements, grants, user fees, operations. final economic analysis estimates total loan programs, or the rights and To determine if the rule could pre-designation baseline impacts (8-year obligations of their recipients. significantly affect a substantial number total from 1999 to 2007) to be $388,000, (d) Whether the rule raises novel legal of small entities, we considered the assuming a 3 percent discount rate, and or policy issues. number of small entities affected within $402,000, assuming a 7 percent discount Regulatory Flexibility Act (5 U.S.C. 601 particular types of economic activities rate. Post-designation baseline impacts et seq.) (e.g., residential and commercial over the next 20 years (2008 to 2027) are development and agriculture). We apply estimated to be $406,000, assuming a 3 Under the Regulatory Flexibility Act the ‘‘substantial number’’ test percent discount rate, and $300,000, (RFA) (5 U.S.C. 601 et seq., as amended individually to each industry to assuming a 7 percent discount rate. The by the Small Business Regulatory determine if certification is appropriate. post-designation incremental impacts Enforcement Fairness Act (SBREFA) (5 However, the SBREFA does not (2008 to 2027) are estimated to be U.S.C. 802(2)), whenever an agency explicitly define ‘‘substantial number’’ $47,600, assuming a 3 percent discount must publish a notice of rulemaking for or ‘‘significant economic impact.’’ rate, and $33,600, assuming a 7 percent any proposed or final rule, it must Consequently, to assess whether a discount rate. prepare and make available for public ‘‘substantial number’’ of small entities is We evaluated the potential economic comment a regulatory flexibility affected by this designation, this impact of this designation as identified analysis that describes the effect of the analysis considers the relative number in the economic analysis. Based on this rule on small entities (i.e., small of small entities likely to be impacted in evaluation, we believe that there are no businesses, small organizations, and an area. In some circumstances, disproportionate economic impacts that small governmental jurisdictions). especially with critical habitat warrant exclusion under section 4(b)(2) However, no regulatory flexibility designations of limited extent, we may of the Act at this time. The final analysis is required if the head of an aggregate across all industries and economic analysis is available on the agency certifies the rule will not have a consider whether the total number of Internet at http://www.regulations.gov significant economic impact on a small entities affected is substantial. In and http://www.fws.gov/southwest/es/ substantial number of small entities. estimating the number of small entities AustinTexas/ or upon request from the SBREFA amended RFA to require potentially affected, we also consider Austin Ecological Services Field Office Federal agencies to provide a whether their activities have any (see ADDRESSES section). certification statement of the factual Federal involvement. basis for certifying that the rule will not Designation of critical habitat only Required Determinations have a significant economic impact on affects activities conducted, funded, or In our July 31, 2007, proposed rule a substantial number of small entities. permitted by Federal agencies. Some (72 FR 41679), we indicated that we In this final rule, we are certifying that kinds of activities are unlikely to have would defer our determination of the critical habitat designation for any Federal involvement and so will not compliance with several statutes and Devils River minnow will not have a be affected by critical habitat Executive Orders until the information significant economic impact on a designation. In areas where the species concerning potential economic impacts substantial number of small entities. is present, Federal agencies already are of the designation and potential effects The following discussion explains our required to consult with us under on landowners and stakeholders was rationale. section 7 of the Act on activities they available in the draft economic analysis. According to the Small Business fund, permit, or carry out that may In this final rule, we affirm the Administration (SBA), small entities affect Devils River minnow (see Section information contained in the proposed include small organizations, such as 7 Consultation section). Federal rule concerning Executive Order (E.O.) independent nonprofit organizations, agencies also must consult with us if 13132, E.O. 12988, the Paperwork and small governmental jurisdictions, their activities may affect critical Reduction Act, the National including school boards and city and habitat. Designation of critical habitat, Environmental Policy Act, and the town governments that serve fewer than therefore, could result in an additional President’s memorandum of April 29, 50,000 residents, as well as small economic impact on small entities due 1994, ‘‘Government-to-Government businesses (13 CFR 121.201). Small to the requirement to reinitiate Relations with Native American Tribal businesses include manufacturing and consultation for ongoing Federal Governments’’ (59 FR 22951). mining concerns with fewer than 500 activities (see Application of the employees, wholesale trade entities ‘‘Adverse Modification’’ Standard Regulatory Planning and Review with fewer than 100 employees, retail section). The Office of Management and Budget and service businesses with less than $5 Appendix B of the final economic (OMB) has determined that this rule is million in annual sales, general and analysis (FEA) examined the potential not significant and has not reviewed heavy construction businesses with less for Devils River minnow conservation this rule under Executive Order 12866 than $27.5 million in annual business, efforts to affect small entities. The (E.O. 12866). OMB bases its special trade contractors doing less than analysis was based on the estimated determination upon the following four $11.5 million in annual business, and impacts associated with the proposed criteria: agricultural businesses with annual critical habitat designation. Based on (a) Whether the rule will have an sales less than $750,000. To determine the analysis, the potential for economic annual effect of $100 million or more on if potential economic impacts to these impacts of the designation on small

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entities are expected to be borne on information in the economic regulatory effect is that Federal agencies primarily by the City of Del Rio and analysis, energy-related impacts must ensure that their actions do not other miscellaneous small entities. The associated with Devils River minnow destroy or adversely modify critical identities of these small entities are not conservation activities within critical habitat under section 7. Non-Federal known at this time but are expected to habitat are not expected. As such, the entities that receive Federal funding, include local developers and private designation of critical habitat is not assistance, permits, or otherwise require landowners that may represent third expected to significantly affect energy approval or authorization from a Federal parties in section 7 consultations on the supplies, distribution, or use. Therefore, agency for an action, may be indirectly Devils River minnow in the future. The this action is not a significant energy impacted by the designation of critical City of Del Rio and other miscellaneous action, and no Statement of Energy habitat. However, the legally binding small entities are expected to incur, at Effects is required. duty to avoid destruction or adverse most, combined annualized modification of critical habitat rests Unfunded Mandates Reform Act (2 administrative costs related to squarely on the Federal agency. U.S.C. 1501 et seq.) consultations for adverse modification Furthermore, to the extent that non- of approximately $3,000, assuming a 3 In accordance with the Unfunded Federal entities are indirectly impacted percent discount rate. This estimated Mandates Reform Act (2 U.S.C. 1501), because they receive Federal assistance $3,000 in combined annual the Service makes the following or participate in a voluntary Federal aid administrative costs is not expected to findings: program, the Unfunded Mandates have a significant impact on small (a) This rule will not produce a Reform Act would not apply, nor would entities, including the City of Del Rio. Federal mandate. In general, a Federal critical habitat shift the costs of the large In addition, because the annualized mandate is a provision in legislation, entitlement programs listed above on to post-designation incremental impacts statute, or regulation that would impose State governments. expected for the City of Del Rio and an enforceable duty upon State, local, or (b) We do not believe that this rule other miscellaneous small entities are Tribal governments, or the private sector will significantly or uniquely affect relatively small, no future indirect and includes both ‘‘Federal small governments because it will not impacts associated with post- intergovernmental mandates’’ and produce a Federal mandate of $100 designation incremental impacts are ‘‘Federal private sector mandates.’’ million or greater in any year; that is, it expected for the small businesses and These terms are defined in 2 U.S.C. is not a ‘‘significant regulatory action’’ entities included in this analysis. 658(5)–(7). ‘‘Federal intergovernmental under the Unfunded Mandates Reform mandate’’ includes a regulation that Act. The designation of critical habitat Small Business Regulatory Enforcement ‘‘would impose an enforceable duty imposes no obligations on State or local Fairness Act (5 U.S.C 801 et seq.) upon State, local, or tribal governments’’ governments. By definition, Federal Under SBREFA, this rule is not a with two exceptions. It excludes ‘‘a agencies are not considered small major rule. Our detailed assessment of condition of Federal assistance.’’ It also entities, although the activities they the economic effects of this designation excludes ‘‘a duty arising from fund or permit may be proposed or is described in the economic analysis. participation in a voluntary Federal carried out by small entities. As such, a Based on the effects identified in the program,’’ unless the regulation ‘‘relates Small Government Agency Plan is not economic analysis, we believe that this to a then-existing Federal program required. rule will not have an annual effect on under which $500,000,000 or more is the economy of $100 million or more, provided annually to State, local, and Executive Order 12630—Takings will not cause a major increase in costs tribal governments under entitlement In accordance with E.O. 12630 or prices for consumers, and will not authority,’’ if the provision would (‘‘Government Actions and Interference have significant adverse effects on ‘‘increase the stringency of conditions of with Constitutionally Protected Private competition, employment, investment, assistance’’ or ‘‘place caps upon, or Property Rights’’), we have analyzed the productivity, innovation, or the ability otherwise decrease, the Federal potential takings implications of critical of U.S.-based enterprises to compete Government’s responsibility to provide habitat for the Devils River minnow in with foreign-based enterprises. Refer to funding,’’ and the State, local, or Tribal a takings implications assessment. the final economic analysis for a governments ‘‘lack authority’’ to adjust Critical habitat designation does not discussion of the effects of this accordingly. At the time of enactment, affect landowner actions that do not determination (see ADDRESSES for these entitlement programs were: require Federal funding or permits, nor information on obtaining a copy of the Medicaid; Aid to Families with does it preclude development of habitat final economic analysis). Dependent Children work programs; conservation programs or issuance of Child Nutrition; Food Stamps; Social incidental take permits to permit actions Executive Order 13211—Energy Supply, Services Block Grants; Vocational that do require Federal funding or Distribution, or Use Rehabilitation State Grants; Foster Care, permits to go forward. The takings On May 18, 2001, the President issued Adoption Assistance, and Independent implications assessment concludes that E.O. 13211 on regulations that Living; Family Support Welfare this final designation of critical habitat significantly affect energy supply, Services; and Child Support for Devils River minnow does not pose distribution, or use. E.O. 13211 requires Enforcement. ‘‘Federal private sector significant takings implications for agencies to prepare Statements of mandate’’ includes a regulation that lands within or affected by the Energy Effects when undertaking certain ‘‘would impose an enforceable duty designation. actions. OMB has provided guidance for upon the private sector, except (i) a implementing this E.O. that outlines condition of Federal assistance or (ii) a Federalism nine outcomes that may constitute ‘‘a duty arising from participation in a In accordance with E.O. 13132 significant adverse effect’’ when voluntary Federal program.’’ (Federalism), the final rule does not compared without the regulatory action The designation of critical habitat have significant Federalism effects. A under consideration. The economic does not impose a legally binding duty Federalism assessment is not required. analysis finds that none of these criteria on non-Federal government entities or In keeping with Department of the are relevant to this analysis. Thus, based private parties. Under the Act, the only Interior and Department of Commerce

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policy, we requested information from, approval by OMB under the Paperwork minnow. Therefore, we are not and coordinated development of, this Reduction Act of 1995 (44 U.S.C. 3501 designating critical habitat for the Devils final critical habitat designation with et seq.). This rule will not impose River minnow on Tribal lands. appropriate State resource agencies in recordkeeping or reporting requirements Texas. The designation of critical on State or local governments, References Cited habitat in areas currently occupied by individuals, businesses, or A complete list of all references cited the Devils River minnow is not likely to organizations. An agency may not in this rulemaking is available upon impose any additional restrictions to conduct or sponsor, and a person is not request from the Field Supervisor, those currently in place and, therefore, required to respond to, a collection of has little incremental impact on State information unless it displays a Austin Ecological Services Field Office and local governments and their currently valid OMB control number. (see ADDRESSES). activities. The designation may have National Environmental Policy Act Author(s) some benefit to these governments (NEPA) (42 U.S.C. 4321 et seq.) because the areas that contain the The primary authors of this physical and biological features It is our position that, outside the rulemaking are staff members of the essential to the conservation of the Tenth Circuit, we do not need to Austin Ecological Services Field Office. species are more clearly defined, and prepare environmental analyses as the PCEs of the habitat necessary to the defined by the NEPA in connection with List of Subjects in 50 CFR Part 17 designating critical habitat under the conservation of the species are Endangered and threatened species, specifically identified. This information Act. We published a notice outlining Exports, Imports, Reporting and does not alter where and what federally our reasons for this determination in the recordkeeping requirements, sponsored activities may occur. Federal Register on October 25, 1983 However, it may assist local (48 FR 49244). This assertion was Transportation. governments in long-range planning upheld in the courts of the Ninth Circuit Regulation Promulgation (rather than having them wait for case- (Douglas County v. Babbitt, 48 F.3d by-case section 7 consultation to occur). 1495 (9th Cir. Ore. 1995), cert. denied I Accordingly, we amend part 17, 116 S. Ct. 698 (1996)). Civil Justice Reform subchapter B of chapter I, title 50 of the Government-to-Government Code of Federal Regulations, as set forth In accordance with E.O. 12988 (Civil Relationship With Tribes below: Justice Reform), the Office of the Solicitor has determined that the rule In accordance with the President’s PART 17—[AMENDED] does not unduly burden the judicial memorandum of April 29, 1994, system and that it meets the ‘‘Government-to-Government Relations I 1. The authority citation for part 17 requirements of sections 3(a) and 3(b)(2) with Native American Tribal continues to read as follows: of the Order. We are designating critical Governments’’ (59 FR 22951), Executive habitat in accordance with the Order 13175, and the Department of Authority: 16 U.S.C. 1361–1407; 16 U.S.C. provisions of the Act. This final rule Interior’s manual at 512 DM 2, we 1531–1544; 16 U.S.C. 4201–4245; Public Law uses standard property descriptions and readily acknowledge our responsibility 99–625, 100 Stat. 3500; unless otherwise identifies the physical and biological to communicate meaningfully with noted. features essential to the conservation of recognized Federal Tribes on a I 2. Amend § 17.11(h) by revising the the species within the designated areas government-to-government basis. We to assist the public in understanding the have determined that there are no tribal entry for ‘‘Minnow, Devils River’’ under habitat needs of the Devils River lands occupied at the time of listing that ‘‘FISHES’’ to read as follows: contain the features essential for the minnow. § 17.11 Endangered and threatened conservation of Devils River minnow, wildlife. Paperwork Reduction Act of 1995 and no Tribal lands that are unoccupied This rule does not contain any new areas that are essential for the * * * * * collections of information that require conservation of the Devils River (h) * * *

Species Vertebrate popu- Historic range lation where endan- Status When listed Critical Special Common name Scientific name gered or threatened habitat rules

******* FISHES

******* Minnow, Devils River Dionda diaboli ...... U.S.A. (TX), Mexico Entire ...... T 669 17.95(e) NA

*******

I 3. Amend § 17.95(e) by adding an § 17.95 Critical habitat—fish and wildlife. Devils River Minnow (Dionda diaboli) entry for ‘‘Devils River Minnow (Dionda * * * * * (1) Critical habitat units are depicted diaboli)’’ in the same alphabetical order (e) Fishes. that the species appears in the table at for Val Verde County and Kinney § 17.11(h) to read as follows: * * * * * County, Texas, on the maps below. (2) The primary constituent elements of critical habitat for the Devils River

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minnow are the following habitat (D) Conductivity less than 0.7 mS/cm are located existing on the effective date components: and salinity less than 1 ppt; of this rule and not containing one or (i) Streams characterized by: (E) Ammonia levels less than 0.4 mg/ more of the primary constituent (A) Areas with slow to moderate l; and elements. water velocities between 10 and 40 cm/ (F) No or minimal pollutant levels for second (4 and 16 in/second) in shallow (4) Critical habitat map units. Data copper, arsenic, mercury, and cadmium; layers defining map units were created to moderate water depths between human and animal waste products; approximately 10 cm (4 in) and 1.5 m in ArcGIS using the National pesticides; fertilizers; suspended Hydrography Dataset and 7.5’ (4.9 ft), near vegetative structure, such sediments; and petroleum compounds as emergent or submerged vegetation or topographic quadrangle maps obtained and gasoline or diesel fuels. from U.S. Geological Survey to stream bank riparian vegetation that (iii) An abundant aquatic food base overhangs into the water column; approximate stream channels and consisting of algae attached to stream calculate distances (stream km and (B) Gravel and cobble substrates substrates and other microorganisms stream mi). We made some minor ranging in diameter between 2 and 10 associated with stream substrates. adjustments to stream channels using cm (0.8 and 4 in) with low or moderate (iv) Aquatic stream habitat either the 2004 National Agriculture Imagery amounts of fine sediment (less than 65 devoid of nonnative aquatic species percent stream bottom coverage) and Program digital orthophotos obtained (including fish, plants, and low or moderate amounts of substrate from the Texas Natural Resources invertebrates) or in which such embeddedness; and Information System. For each critical nonnative aquatic species are at levels (C) Pool, riffle, run, and backwater habitat unit, the upstream and that allow for healthy populations of components free of artificial instream downstream boundaries are described as Devils River minnows. structures that would prevent paired geographic coordinates X, Y (v) Areas within stream courses that movement of fish upstream or (meters E, meters N, UTM Zone 14, may be periodically dewatered for short downstream. referenced to North American time periods, during seasonal droughts, (ii) High-quality water provided by Horizontal Datum 1983). Additionally, permanent, natural flows from but otherwise serve as connective corridors between occupied or critical habitat areas include the stream groundwater spring and seeps channels within the identified stream characterized by: seasonally occupied areas through which the species moves when the area reaches and areas within these reaches (A) Temperature ranging between 17 up to the bankfull width. °C and 29 °C (63 °F and 84 °F); is wetted. (B) Dissolved oxygen levels greater (3) Critical habitat does not include (5) Note: Index map of critical habitat than 5.0 mg/l; manmade structures (such as buildings, units for the Devils River minnow (C) Neutral pH ranging between 7.0 aqueducts, airports, roads, and other follows: and 8.2; paved areas) and the land on which they BILLING CODE 4310–55–P

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(6) Unit 2: San Felipe Creek, Val 318813E, 3253702N) located about 1.1 West (UTM 317039E, 3250850N) and Verde County, Texas. stream km (0.7 stream mi) upstream of San Felipe Springs East (UTM 317212E, (i) Unit 2 consists of approximately the Jap Lowe Bridge crossing. The 250825N), downstream to the 7.9 stream km (4.9 stream mi) on San downstream boundary on San Felipe confluence with San Felipe Creek. Felipe Creek, 0.8 stream km (0.5 stream Creek is in the City of Del Rio 0.8 stream Including all three streams, the total mi) of the outflow of San Felipe Springs km (0.5 stream mi) downstream of the distance in Unit 2 is approximately 9.0 West, and 0.3 stream km (0.2 stream mi) Academy Street Bridge crossing (UTM stream km (5.6 stream mi). of the outflow of San Felipe Springs 316317E, 3248147N). This unit includes East. The upstream boundary on San the outflow channels from the origin of (ii) Note: Map of Unit 2, San Felipe Felipe Creek is the Head Springs (UTM the two springs, San Felipe Springs Creek Unit, follows:

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(7) Unit 3: Pinto Creek, Kinney Pinto Creek. The upstream boundary is Highway 90 Bridge crossing of Pinto County, Texas. Pinto Springs (UTM 359372E, Creek (UTM 351163E, 3246179N). (i) Unit 3 consists of approximately 3254422N). The downstream boundary (ii) Note: Map of Unit 3, Pinto Creek 17.5 stream km (10.9 stream mi) on is 100 m (330 ft) upstream of the Unit, follows:

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* * * * * Dated: July 29, 2008. Lyle Laverty, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. E8–17985 Filed 8–11–08; 8:45 am] BILLING CODE 4310–55–C

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Reader Aids Federal Register Vol. 73, No. 156 Tuesday, August 12, 2008

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING AUGUST

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. 230...... 45646 Presidential Documents 2 CFR 232...... 45646 Executive orders and proclamations 741–6000 3185...... 46529 239...... 45646 The United States Government Manual 741–6000 240...... 46138 3 CFR Other Services 274...... 45646 Executive Orders: 275...... 45646 Electronic and on-line services (voice) 741–6020 12333...... 45325 Privacy Act Compilation 741–6064 13470...... 45325 18 CFR Public Laws Update Service (numbers, dates, etc.) 741–6043 388...... 45609 TTY for the deaf-and-hard-of-hearing 741–6086 5 CFR Proposed Rules: 351...... 46530 410...... 44945 532...... 45853 ELECTRONIC RESEARCH 19 CFR World Wide Web 7 CFR 10...... 45351 Full text of the daily Federal Register, CFR and other publications 65...... 45106 102...... 45351 is located at: http://www.gpoaccess.gov/nara/index.html 250...... 46169 162...... 45351 981...... 45153 163...... 45351 Federal Register information and research tools, including Public 3430...... 44897 178...... 45351 Inspection List, indexes, and links to GPO Access are located at: Proposed Rules: Proposed Rules: l http://www.archives.gov/federal register 210...... 45359 24...... 45364 E-mail 220...... 45359 20 CFR FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 10 CFR Proposed Rules: an open e-mail service that provides subscribers with a digital Proposed Rules: 220...... 44946 form of the Federal Register Table of Contents. The digital form 35...... 45635 of the Federal Register Table of Contents includes HTML and 21 CFR 50...... 46557 PDF links to the full text of each document. 51...... 46204 520...... 45610 To join or leave, go to http://listserv.access.gpo.gov and select 72...... 45173 522...... 45611 Online mailing list archives, FEDREGTOC-L, Join or leave the list 558...... 45874 (or change settings); then follow the instructions. 12 CFR 24 CFR PENS (Public Law Electronic Notification Service) is an e-mail 24...... 46532 Proposed Rules: service that notifies subscribers of recently enacted laws. 226...... 46190 338...... 45854 15...... 46826 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 352...... 45854 903...... 45368 and select Join or leave the list (or change settings); then follow 941...... 45368 the instructions. 14 CFR 945...... 45368 966...... 45368 FEDREGTOC-L and PENS are mailing lists only. We cannot 25...... 45156, 46539 respond to specific inquiries. 39 ...... 45343, 45345, 45346, 26 CFR Reference questions. Send questions and comments about the 45348, 45350, 45857, 46542, 1...... 45612 Federal Register system to: [email protected] 46543, 46546, 46548, 46550 71 ...... 45605, 45606, 45607, Proposed Rules: The Federal Register staff cannot interpret specific documents or 1 ...... 45180, 45656, 45908, 46552 regulations. 46572 91...... 46797 97...... 44909, 45860 27 CFR FEDERAL REGISTER PAGES AND DATE, AUGUST Proposed Rules: Proposed Rules: 25...... 45886 44897–45152...... 1 9 ...... 46830, 46836, 46842 39 ...... 44937, 45174, 45176, 19...... 44952 45153–45342...... 4 45178, 45644, 45888, 45891, 45343–45604...... 5 45893, 45895, 45898, 45900, 29 CFR 45605–45852...... 6 45902, 46569, 46823 Proposed Rules: 45853–46168...... 7 61...... 45905 1404...... 45660 46169–46528...... 8 46529–46796...... 11 15 CFR 30 CFR 46797–47026...... 12 70...... 46553 944...... 46804 17 CFR Proposed Rules: 901...... 46213 241...... 45862 271...... 45862 32 CFR Proposed Rules: 199...... 46808 40...... 44939 41...... 44939 33 CFR 145...... 44939 100...... 45612

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117 ...... 45615, 46191, 46192 Proposed Rules: 45 CFR 546...... 45379 165 ...... 44911, 44913, 45615, 52 ...... 45184, 45185, 45186, 1185...... 46529 552 ...... 44953, 45194, 45378, 45617, 45875, 46194, 46200 45924, 45925 45379 Proposed Rules: 63...... 45673 1804...... 45679 Proposed Rules: 261...... 46230 100...... 45919 81...... 45186 1852...... 45679 117...... 45922 258...... 45187 47 CFR 271...... 45193 64...... 45354 49 CFR 36 CFR 42 CFR Proposed Rules: 571...... 45355 Proposed Rules: 73 ...... 45374, 45375, 45376, 604...... 44927, 46554 Subchapter B...... 45274 412...... 46370 45377, 45928, 46232, 46233, Proposed Rules: 7...... 46215 413...... 46416 46234 418...... 46464 260...... 46860 356...... 45929 37 CFR Proposed Rules: 48 CFR 365...... 45929 Proposed Rules: 405...... 44952 Ch. 2 ...... 46813 409...... 44952 374...... 45929 1...... 45662 203...... 46814 594...... 45195 2...... 45662 410...... 44952, 46575 208...... 46816, 46817 3...... 45662 411...... 44952 209...... 46817 414...... 44952 217...... 46817 50 CFR 39 CFR 415...... 44952 225...... 46817 17...... 45534, 46988 3020...... 45848 419...... 46575 236...... 46818 648 ...... 45358, 45882, 46554 424...... 44952 246...... 46817 660...... 45883, 46555 40 CFR 485...... 44952 250...... 46814 679...... 45884, 46821 52 ...... 44915, 45158, 45161, 486...... 44952 252 ...... 46814, 46817, 46819 Proposed Rules: 45162, 45879, 46200 522...... 46202 17 ...... 45383, 45680, 45806, 44 CFR 55...... 44921 Proposed Rules: 45935, 46860, 46867 81...... 45162 65...... 46809 503...... 45194 20...... 45689 174...... 45620 67...... 44924, 46811 512...... 44953 300...... 45201 180 ...... 45312, 45624, 45629 Proposed Rules: 513...... 44955, 46579 600...... 46579 271...... 45170 67 ...... 46849, 46851, 46853 528...... 45378 665...... 46580

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REMINDERS Regions; published 6-13- COMMERCE DEPARTMENT comments until further The items in this list were 08 National Oceanic and notice; published 2-11- editorially compiled as an aid INTERIOR DEPARTMENT Atmospheric Administration 08 [FR 08-00596] to Federal Register users. Surface Mining Reclamation Marine Recreational Fisheries National Oil and Hazardous Inclusion or exclusion from and Enforcement Office of the United States; Substances Pollution Contingency Plan: this list has no legal Utah Regulatory Program; National Saltwater Angler significance. published 8-12-08 Registry Program; National Priorities List; comments due by 8-21-08; comments due by 8-21- TRANSPORTATION published 8-11-08 [FR E8- 08; published 7-22-08 [FR RULES GOING INTO DEPARTMENT 18408] E8-16477] EFFECT AUGUST 12, Federal Aviation COMMERCE DEPARTMENT Pesticide Products; Administration 2008 Patent and Trademark Office Registration Applications; Airworthiness Directives: Fiscal Year 2009 Changes to comments due by 8-22-08; DEFENSE DEPARTMENT Airbus Model A330 Patent Cooperation Treaty published 7-23-08 [FR E8- Airplanes and Model A340 16878] Defense Acquisition Transmittal and Search 200 and 300 Series Regulations System Fees; comments due by 8- Pesticide Tolerance Airplanes; published 7-8- Nomenclature Changes; Defense Federal Acquisition 18-08; published 6-18-08 08 Proposed Technical Regulation Supplement: [FR E8-13730] APEX Aircraft Model CAP Amendments; comments Competition Requirements COMMODITY FUTURES 10 B Airplanes; published TRADING COMMISSION due by 8-18-08; published for Purchases from 7-8-08 6-18-08 [FR E8-13368] Federal Prison Industries Exemption Request for Certain ATR Model ATR42 Protection of Stratospheric (DFARS Case 2008- Over-the-Counter Swaps Airplanes and Model Ozone: D015); published 8-12-08 from Requirements Imposed ATR72-101, -102, -201, by Commission Regulation Listing of Substitutes for Conforming Changes - -202, 211, and 212 (35.2); comments due by 8- Ozone-Depleting Standards of Conduct and Airplanes; published 7-8- 21-08; published 7-7-08 [FR Substances-n-Propyl Extraordinary Contractual 08 E8-15274] Bromide in Adhesives, Actions (DFARS Case Boeing Model 737-100, etc.; comments due by 8- 2008-D004); published 8- DEFENSE DEPARTMENT -200, -200C, -300, -400, 22-08; published 6-23-08 12-08 Engineers Corps and -500 Series [FR E8-14103] Programmatic Regulations for Item Identification and Airplanes; published 7-8- Rule to Implement 1997 8- the Comprehensive Valuation Clause Update 08 Hour Ozone National (DFARS Case 2007- Everglades Restoration Boeing Model 737-300 and Ambient Air Quality D007); published 8-12-08 Plan; comments due by 8- -400 Series Airplanes; Standard: Ship Critical Safety Items 18-08; published 5-20-08 published 7-8-08 [FR E8-11250] Addressing Portion of Phase (DFARS Case 2007- 2 Ozone Implementation Dassault Model Falcon 2000 ENVIRONMENTAL D016); published 8-12-08 Rule; comments due by Airplanes; published 7-8- PROTECTION AGENCY Small Business Program 08 8-20-08; published 7-21- Name Change (DFARS Approval and Promulgation of Gulfstream Aerospace LP 08 [FR E8-16668] Case 2008-D001); Air Quality Implementation Model Astra SPX, 1125 FARM CREDIT published 8-12-08 Plans: Westwind Astra, and ADMINISTRATION Pennsylvania; Redesignation Technical Amendments; Gulfstream 100 Airplanes; of the Clearfield/Indiana 8- Statement on Regulatory published 8-12-08 published 7-8-08 Burden; comments due by Trade Agreements - New Hour Ozone Lockheed Model 1329 Nonattainment Area to 8-22-08; published 6-23-08 Thresholds (DFARS Case Series Airplanes; [FR E8-14101] 2007-D023); published 8- Attainment and Approval published 7-8-08 FEDERAL RESERVE 12-08 of the Maintenance Plan McDonnell Douglas Model and 2002 Base-Year; SYSTEM DEFENSE DEPARTMENT DC-9-81 (MD-81), et al.; comments due by 8-22- Fair Credit Reporting Risk- TRICARE; Reserve and Guard published 7-8-08 08; published 7-23-08 [FR Based Pricing Regulations; Family Member Benefits; E8-16639] comments due by 8-18-08; published 8-12-08 COMMENTS DUE NEXT Texas; Control of Air published 5-19-08 [FR E8- ENVIRONMENTAL WEEK Pollution from Volatile 10640] PROTECTION AGENCY Organic Compounds; FEDERAL TRADE National Oil and Hazardous comments due by 8-18- COMMISSION AGRICULTURE 08; published 7-17-08 [FR Substances Pollution DEPARTMENT Fair Credit Reporting Risk- Contingency Plan: E8-15728] Based Pricing Regulations; Agricultural Marketing Determination of Attainment of National Priorities List; Service comments due by 8-18-08; published 6-13-08 the One-Hour Ozone published 5-19-08 [FR E8- Milk in the Northeast and Standard: National Priorities List 10640] Other Marketing Areas; Southern New Jersey Update; published 6-13-08 comments due by 8-19-08; HEALTH AND HUMAN Portion of the Philadelphia SERVICES DEPARTMENT National Pollutant Discharge published 6-20-08 [FR E8- Metropolitan Elimination System (NPDES) 13943] Nonattainment Area; Food and Drug Water Transfers Rule; AGRICULTURE comments due by 8-22- Administration published 6-13-08 DEPARTMENT 08; published 7-23-08 [FR Medical Devices; Hearing FEDERAL Animal and Plant Health E8-16836] Aids; Technical Data COMMUNICATIONS Inspection Service Environmental Statements; Amendments; comments COMMISSION Notice of Intent: due by 8-18-08; published Revision of the Hawaiian and 6-2-08 [FR E8-11909] Public Safety and Homeland Territorial Fruits and Coastal Nonpoint Pollution Security Bureau Establishes Vegetables Regulations; Control Programs; States INTERIOR DEPARTMENT Post-Reconfiguration: comments due by 8-18-08; and Territories— Fish and Wildlife Service 800 MHz Band Plan for the published 6-17-08 [FR E8- Florida and South Revision of Regulations U.S and Canada Border 13480] Carolina; Open for Implementing the

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Convention on International Mine Safety and Health by 8-18-08; published 7- published 5-19-08 [FR E8- Trade in Endangered Administration 17-08 [FR E8-15711] 11174] Species of Wild Fauna and Conveyor Belt Combustion Airworthiness Directives: Tax Return Preparer Flora (CITES); Import and Toxicity and Smoke Density; Boeing Model 747 100, 747 Penalties; comments due by Export; comments due by 8- comments due by 8-18-08; 100B, 747 100B SUD, 8-18-08; published 6-17-08 18-08; published 7-17-08 published 6-19-08 [FR E8- 747 200B, 747 200C, 747 [FR E8-12898] [FR E8-16198] 13633] 200F, 747 300, 747 400, Revision of Regulations Petitions for Modification; 747 400D, 747 400F, Implementing the comments due by 8-21-08; 747SR, and 747SP Series LIST OF PUBLIC LAWS Convention on International published 7-22-08 [FR E8- Airplanes; comments due This is a continuing list of Trade in Endangered 16669] by 8-18-08; published 7-2- Species of Wild Fauna and 08 [FR E8-14974] public bills from the current Refuge Alternatives for session of Congress which Flora (CITES); Import and Class E Airspace; Underground Coal Mines; have become Federal laws. It Export of Sturg; comments Establishment: comments due by 8-18-08; may be used in conjunction due by 8-18-08; published published 6-16-08 [FR E8- Pampa, TX; comments due 7-17-08 [FR E8-16195] with ‘‘PLUS’’ (Public Laws 13565] by 8-21-08; published 7-7- Update Service) on 202–741– INTERIOR DEPARTMENT NATIONAL CREDIT UNION 08 [FR E8-14923] 6043. This list is also Surface Mining Reclamation ADMINISTRATION Plains, TX; comments due available online at http:// and Enforcement Office Organization and Operations by 8-21-08; published 7-7- www.archives.gov/federal- Abandoned Mine Land of Federal Credit Unions; 08 [FR E8-14921] register/laws.html. Program; comments due by Establishment of Low Altitude comments due by 8-18-08; The text of laws is not 8-19-08; published 6-20-08 published 6-17-08 [FR E8- Area Navigation Route (T- [FR E8-13310] Route): published in the Federal 12946] Register but may be ordered Houston, TX; comments due JUSTICE DEPARTMENT NATIONAL SCIENCE in ‘‘slip law’’ (individual by 8-18-08; published 7-2- Executive Office for FOUNDATION pamphlet) form from the 08 [FR E8-15018] Immigration Review Privacy Act; Systems of Superintendent of Documents, Removal of Class E5 Board of Immigration Appeals: Records; comments due by U.S. Government Printing Airspace: 8-21-08; published 7-22-08 Office, Washington, DC 20402 Affirmance Without Opinion, Madison, CT; comments Referral For Panel Review [FR E8-16683] (phone, 202–512–1808). The due by 8-22-08; published text will also be made and Publication of NUCLEAR REGULATORY 7-23-08 [FR E8-16513] Decisions as Precedents; COMMISSION available on the Internet from comments due by 8-18- TRANSPORTATION GPO Access at http:// NUREG-1886, Joint Canada - DEPARTMENT www.gpoaccess.gov/plaws/ 08; published 6-18-08 [FR United States Guide for Federal Railroad index.html. Some laws may E8-13435] Approval of Type B(U) and Administration not yet be available. JUSTICE DEPARTMENT Fissile Material Railroad Workplace Safety: FBI Criminal Justice Transportation Packages, H.R. 4841/P.L. 110–297 Adjacent-Track On-Track Information Services Division Draft Report for Comment; Soboba Band of Luiseno Safety for Roadway User Fees; comments due comments due by 8-19-08; Indians Settlement Act (July Workers; comments due by 8-18-08; published 6-19- published 6-5-08 [FR E8- 31, 2008; 122 Stat. 2975) 08 [FR E8-13819] 12583] by 8-18-08; published 7- 17-08 [FR E8-16140] S. 2565/P.L. 110–298 Nondiscrimination on the Basis PERSONNEL MANAGEMENT Law Enforcement of Disability by Public OFFICE TRANSPORTATION DEPARTMENT Congressional Badge of Accommodations and in Suitability; comments due by Bravery Act of 2008 (July 31, National Highway Traffic Commercial Facilities; 8-22-08; published 6-23-08 2008; 122 Stat. 2985) comments due by 8-18-08; [FR E8-13990] Safety Administration S. 3298/P.L. 110–299 published 6-17-08 [FR E8- Testimony by OPM Employees Environmental Statements; 12623] Availability, etc.: To clarify the circumstances and Production of Official during which the Administrator Nondiscrimination on the Basis New Corporate Average Records in Legal of the Environmental of Disability by Public Fuel Economy Standards; Proceedings; comments due Protection Agency and Accommodations and in Notice of Public Hearing; by 8-22-08; published 6-23- applicable States may require Commercial Facilities; comments due by 8-18- 08 [FR E8-14059] permits for discharges from Correction; comments due 08; published 7-2-08 [FR SECURITIES AND certain vessels, and to require by 8-18-08; published 6-30- 08-01406] EXCHANGE COMMISSION the Administrator to conduct a 08 [FR E8-14395] Self-Regulatory Organizations; TRANSPORTATION study of discharges incidental Nondiscrimination on the Basis Proposed Rule Changes: DEPARTMENT to the normal operation of of Disability in State and Pipeline and Hazardous NYSE Arca, Inc; comments vessels. (July 31, 2008; 122 Local Government Services; Materials Safety due by 8-19-08; published Stat. 2995) comments due by 8-18-08; Administration 7-29-08 [FR E8-17307] S. 3352/P.L. 110–300 published 6-17-08 [FR E8- Petitions for Interim Standards To temporarily extend the 12622] SOCIAL SECURITY for Rail Tank Cars Used to programs under the Higher Nondiscrimination on the Basis ADMINISTRATION Transport Toxic-by-Inhalation Education Act of 1965. (July of Disability in State and Technical Changes to the Title Hazard Materials; comments 31, 2008; 122 Stat. 2998) Local Government Services; II Regulations; comments due by 8-22-08; published Correction; comments due due by 8-18-08; published 7-23-08 [FR E8-16535] Last List August 1, 2008 7-17-08 [FR E8-16332] by 8-18-08; published 6-30- TREASURY DEPARTMENT 08 [FR E8-14388] TRANSPORTATION Internal Revenue Service LABOR DEPARTMENT DEPARTMENT Public Laws Electronic Accrual Rules for Defined Notification Service Employees’ Compensation Federal Aviation Benefit Plans; comments Appeals Board Administration due by 8-18-08; published (PENS) Rules of Procedure; comments Air worthiness Directives: 6-18-08 [FR E8-13788] due by 8-19-08; published Fokker Model F27 Mark 050 Contributed Property; PENS is a free electronic mail 6-20-08 [FR E8-13910] Airplanes; comments due comments due by 8-18-08; notification service of newly

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

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